Heidt v. Minor

Van Fleet, J. This is an action against one of the sureties on the official bond of a notary public, to recover damages alleged to havebeen caused by a certain false and fraudulent certificate of acknowledgment. On the first trial a judgment was rendered for plaintiff, which, on appeal to this court, was reversed on the authority of Heidt v. Minor, 89 Cal. 115. That appeal was on the judgment-roll only, and the facts were precisely similar to those in the case cited. On the return of the case to the court below plaintiff, by leave of the court, amended her complaint. The case was then tried before a jury, and plaintiff had a verdict and judgment, and defendant appeals on the judgment-roll only. The points made by appellant are: that the court below should have rendered judgment in favor of defendant on the coming down of the remittitur, and without a new trial; that the court erred in allowing the amendment to the complaint; and that the facts on the second trial were substantially the same as on the first trial, and that, therefore, the rule of “ the law of the case” entitled the defendant to a judgment.

1. The judgment of this court on the first appeal was simply that “ the judgment .... in the above-entitled cause be, and the same is hereby, reversed, with costs.” The effect of this unqualified reversal was to remand the cause for a new trial. (Falkner v. Hendy, 107 Cal. 49, 54.) It may also be remarked that the reversal of a judgment on the ground that it is not supported by the findings does not necessarily imply that any judgment ought to have been rendered on those findings. The reversal in this case was based on the proposition that there was no finding at all upon a certain material fact. In the absence of such finding no judgment could properly have been rendered.

But appellant contends that the original complaint contained no allegation as to the fact in question, that [388]the findings covered all the issues made by the pleadings, and that, therefore, the reversal was really based on the ground that the complaint stated no cause of action. Eo such point was made on that appeal or mentioned in the opinion; and, had it been made, it would have been proper, on remanding the case, to give the plaintiff an opportunity to amend.

2. After the reversal of the judgment the parties in the court below had the same rights which they originally had; and that court, therefore, had discretion to permit any proper amendment to the pleadings. (Phelan v. San Francisco, 9 Cal. 15; Gould v. Stafford, 101 Cal. 32.) The only objection urged to the substance of the amendment is that it did not cure the defect in the original complaint, or make it state a cause of action. This question will most conveniently be considered with the next point.