Thompson v. White

Hayne, C. This case was originally in the nineteenth district court. That court made certain findings of fact and an interlocutory decree therein, and referred the case to Gordon N. Mott, the court commissioner. This official made a report which was “confirmed” by Judge Cary of the superior court, the successor of the nineteenth district court; and the case then went to his successor, who made an order setting aside all the proceedings, upon the theory that there had been a mistrial, and that a case could not be tried by piecemeal by different judges, neither of whom had before him the evidence on which the other acted. Upon appeal, this order was reversed, and the cause was remanded “for further proceedings not inconsistent with this opinion.” (63 Cal. 605.)

[382]The case then came before Judge Maguire of the superior court, who had succeeded to the office, for "further proceedings.” Neither party offered additional evidence, —the case being submitted upon the pleadings and papers on file, which included the interlocutory decree and the report of Commissioner Mott above mentioned. A final decree was rendered, from which the plaintiff appeals. The argument for the appellant ranges itself under two heads, which we will consider separately.

1. The learned counsel contends that “ the decree of September 11, 1884 (which is the final decree), is erroneous in ascertaining an indebtedness of five thousand dollars from Thompson to White, when the testimony taken by Commissioner Mott shows that White, upon a fair statement of the account, is largely indebted to Thompson.”

It is not entirely accurate, under our system, to say that the evidence does not justify a decree. The evident intention, however, is to say that the evidence does not justify the decision. But no motion for a new trial was made, and the appeal was not taken within sixty days from the rendition of the final decree, and hence no question of the sufficiency of the evidence can be considered, whether to justify the decree or the decision.

2. It is contended that the final decree is inconsistent with the interlocutory decree.

As a matter of course, whatever was decided on the former appeal has become the law of the case, and must govern on this appeal. The question is, whether it was there decided that the final decree cannot be inconsistent with the interlocutory one. And we do not think that it was. The court below had proceeded upon the theory that there could not be, under our system, such a thing as an interlocutory decree except in partition cases,—in other words, that the court had no power to make such a decree. All that was necessary for the appellate court to decide was, that the trial court had such power, and