¶1 (dissenting). I desire to record my dissent from the opinion otf the court, -on the ground that this court is now without authority of law to set aside its former opinion.
¶2 Obviously, the cause is pending in the trial court, as the mandate from this court on the former opinion was issued, spread of record, and judgment entered thereon in said court. Not only this, but by leave of court the pleadings were amended and the case is now, presumably, awaiting trial in the district court. It is inconceivable to my mind that for the purpose of a trial or decision upon the merits of an action, such action may, at one and the same time, be pending in both a trial court and an appellate court. The opinion of the court appears to recognize -the rule that an appellate court will not recall a mandate after it has been regularly issued, but. refuses, or at least neglects, to observe it, for.. the .reason- that through .alleged inadvertence this- court failed to give effect to the act of May 27, 1908 (35 Stat. at L. 312). This the. court should have done, and would had it not erred. It now proposes, in effect at least, to escape the consequence -of its error by affixing to its former decision the gracious and charitable mantle of inadvertence, and by such means restore itself to its former jurisdiction. This it canriot legally do. There is no sound reason why the general rule of law in such ca-ses should be departed from in this case. If in adopting the opinion- of the commission, .error was committed, as it seems was done, such, error may be corrected. either in the trial c'ourt where the ae *160 tion is now pending, or in this court on a second appeal.