Klauber v. San Diego Street Car Co.
Before: Harrison
Synopsis
Appeal—Law of the Case—Different Facts on Second Appeal.—The rule that upon a second appeal in a cause the court must accept its former decision as the law of the case is applicable only when the same matters that were determined on the first appeal are brought before it on the second appeal, and should not be extended to prevent a judicial consideration of the case beyond the exigences which demanded its application, and whenever upon the second hearing the record presents a different state of facts, or different questions of law, the former determination ceases to be an estoppel, and this court is at liberty to consider the questions presented as fully as though presented upon a first appeal.
Id.—First Appeal by Plaintiff—Reversal of Judgment upon Findings_ Second Appeal by Defendant—Bill of Exceptions—Dismissal.—Where the plaintiff took a first appeal from the judgment upon the judgment-roll alone, without a bill of exceptions, and a judgment was thereupon ordered to be entered upon the findings for appellants, and a second appeal was thereupon taken by the defendant from the judgment so entered, upon a record containing exceptions taken by him at the trial, and settled by the judge who tried the cause» such exceptions could not have been considered upon the first appeal, and may be properly determined upon the second appeal; and the second appeal will not be dismissed upon the ground that the decision of the first appeal is the law of the case upon the second appeal, and that no appeal could be taken from the final judgment ordered upon that appeal.
Id. — Final Judgment—Entby of New Judgment in Lieu of Vacated Judgment—Notice of Entby—Time fob Settlement of Exceptions. — There can be only one final judgment in an action; and when a judgment entered has been vacated and another entered in lieu thereof, the last judgment becomes the only judgment in the cause, and the notice of its entry is the point of time from which the right of the party against whom the judgment is entered to have a hill of exceptions settled to be attached to the judgment-roll, begins to run, and this is so although the new judgment was entered by direction of the appellate court, upon an appeal taken by the opposite party.
Harrison, J. Upon the trial of this cause findings of fact were made and filed by the court, upon which judgment was rendered in favor of the defendant. From that judgment the plaintiff appealed directly to this court, upon the judgment-roll alone, without any bill of exceptions, and upon the hearing in this court the judgment was reversed and the superior court directed to enter a judgment upon the findings, in accordance with the prayer of the complaint (95 Cal. 353); and upon the going down of the remittitur the superior court caused judgment to be entered in favor of the plaintiffs in accordance with the directions of this court. Thereupon, within the time authorized by section 650 of the Code of Civil Procedure, the defendant prepared a bill containing certain exceptions taken by it at the trial, and the same was settled by the judge who had tried the case, and filed with the clerk. The defendant has now appealed from the judgment entered against it, as aforesaid, bringing up with the judgment-roll this bill of exceptions. The respondent moves to dismiss the appeal upon the ground [107]that the former action by this court has become the law of the case, and that the judgment entered thereunder has become final, from which no further appeal can be taken.
The “law of the case” is a phrase which has been formulated in this state to give expression to the rule that the final judgment of the highest court upon a question of law arising between the parties to an action on a given state of facts, establishes the rights of the parties to that controversy, and is a final determination thereof, and like a final judgment in any other case, estops the parties 'thereto from afterwards questioning its correctness. This court has no appellate jurisdiction over its own judgments, and such judgment, therefore, constitutes an estoppel of record of the highest character, and is conclusive between the parties as to the matters adjudged. Hence, it has been invariably held that upon a second appeal in a cause, this court must accept its former determination as conclusive, and is precluded from any re-examination of the matters therein determined. As this rule is, however, applicable only to matters which have been determined by the court, it is only when the same matters that were determined on the first appeal are brought before it on a second appeal that the rule can be invoked; and, being a rule which tends to prevent a judicial consideration of the case, it is not to be extended beyond the exigencies which demand its application, and it is therefore held that whenever upon the second hearing the record presents a different state of facts, the former determination ceases to be an estoppel.
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