Opinion by

The record shows that upon return of the cause from this to the lower court upon motion of appellant the case was redocketed and submitted upon the mandate and opinion. And thereupon, it was adjudged “that in obedience to the opinion and mandate and because the allegations of the plaintiff are admitted he recover of the de*126fendant the land mentioned in the deed from the assignee in bankruptcy.”

It was decided in the opinion rendered when the case was here on the first appeal (Gillispie v. Bradford, 11 Ky. Opin. 804), that if the plaintiff had any valid claim1 at all it was the one derived from the assignee. But it was distinctly said in the opinion that it was an independent cause of action inconsistent with and hostile to the original cause of action which the plaintiff had no right to set up by amended petition, and that without service of process the deféndant was not required to notice it.

According to thé opinion and mandate the defendant in the action when the case was called was entitled unconditionally to a judgment dismissing the action and for his costs. And as he did not waive that right there was nothing for the court h> do- but to render it, his motion to submit the cause on the opinion and mandate amounting to an assertion and claim of his legal rights as ascertained and determined by this court.

Wherefore the judgment is reversed and cause remanded for further proceedings consistent with this opinion.