¶1dissenting:
¶2We do not concur in the view taken by the court that under the demanding order made by this court when the decree of the trial court was reversed that court had no authority to do anything but grant the prayer of the bill. If such a remanding order is conclusive on the trial court in some cases we do not understand it to be so in all cases. The effect to be given such remanding order must to some extent depend upon circumstances. If this were not so and the trial court has no authority, under such form of order, to do anything but grant the prayer of the bill, then it would seem the proper method would be to give such. directions specifically in the order. Where such directions are not given but the order to the trial court is to proceed consistently with the views expressed in the opinion, the trial court is at liberty, not to re-try on the same evidence questions that have been adjudicated, but, if justice demands and the circumstances of the case require, to hear other evidence, to the end that no litigant may be deprived of any right without a fair opportunity to be heard. West v. Douglas, 145 Ill. 164, is not the only case to be found in our Reports holding, as we understand, a contrary view to that expressed in the opinion of the court in this case.
¶3But if it be assumed that the effect, generally, to be given an order remanding a cause, with directions to the trial court to proceed in accordance with the views expressed in the opinion, is as stated in this case, we think none of the cases cited in the opinion justify the action of the circuit court, under the circumstances of this case, in refusing to hear any evidence after the case had been remanded. The charge in the original bill was that Alonzo T. Prentice had not sufficient mental capacity to make the deed in question. Upon that issue the evidence was heard, and, as we understand it, although it does not very clearly appear from the abstract, it was not until the decision of the court had been announced, holding the evidence insufficient to sustain the charge of want of mental capacity, that the bill was amended, charging the deed was procured by false and fraudulent representations. No further evidence was heard after this amendment, and the court, adhering to its decision, dismissed the bill for want of equity. This court reversed that decree on the sole ground that the evidence showed the deed was procured through false and fraudulent representations. (Prentice v. Crane, 234 Ill. 302.) As that was not an issue in the case when the evidence was heard and the case decided by the trial court in favor of appellant, he should not be prejudiced for not anticipating that this court might hold the proof sustained the charge in the amendment and asking leave to introduce proof upon that question. Having introduced proof to meet the charge in the bill when the proof was taken and obtained a decision in his favor, appellant could not reasonably have been expected to then -introduce further evidence on the charg'e made in the amendment. If it be conceded that as to the issue of lack of mental capacity in Alonzo- T. Prentice to make the deed appellant was not entitled, under the remanding order, to be again heard, he should not be deprived of the right to be heard and to introduce his testimony upon the charg'e made by the amendment, of false and fraudulent representations. Upon this question he has nefer been heard, and whatever view may be taken as to the effect that generally should be given to such a remanding order as was made in this case,'we think, when the circumstances under which the case was presented to and decided in the trial court are considered, it clearly appears that to hold appellant could not offer proof on the question he had never been heard upon, is going farther than any case has heretofore gone, and in our opinion is not supported by authority.