Adams, J.
1. PRACTICE : afteimai1-* diiigence. — It appears to us that the ground upon which the judgment of the court below is based is not tenable. The question of diligence was determined upon the -1 ° r a®davits which accompanied the plaintiff’s application for an order allowing it to amend and tender a new issue. It was not to be determined again, we think, upon the trial. It is true such affidavits are taken ex jocurte, and do not constitute as satisfactory evidence as might be elicited upon an examination and cross-examination of witnesses,. But they constitute the sole evidence of diligence in an application for a new trial in an action at law, where the question of diligence is involved, and we think that thay are sufficient in an action in equity.
But notwithstanding the court may have erred in the ground of its decision, the judgment must be allowed to stand if the plaintiff has failed to prove its averment that the assessment and collection of taxes were made by mistake, unless, as the [96]*96plaintiff claims, the whole case is subject to review, and upon such review the decision appears to be wrong.
2____ retnai. The first question which presents itself is as to whether the plaintiff was limited to the trial of the new issue presented in the amended replication. In our opinion pj. waS- We have come to this conclusion with much caution, because it is strenuously insisted by the learned counsel for the plaintiff that it should not be held to be estopped by the assessment and collection of taxes, even if the assessment and collection were not made by mistake. It is said in the first place that the court was misled in regard to the facts upon which the estoppel was grounded, as appears from the evidence produced at the last trial; and in the second place that as a matter of law the assessment and collection of taxes by a county do not estop it from claiming title to the property taxed.
Some of the members of the court have come to entertain considerable doubt as to the correctness of the ruling, holding that there was an,estoppel in this case. But we think that we cannot go into that question. The case was not remanded. for a new trial, but for judgment in accordance with the opinion. The court below could have done nothing but render judgment if there had been no application for an order allowing the filing of an amended replication and the tender of a new issue upon the ground of a newly discovered fact material to the determination of the case. If without such application the plaintiff had claimed in the court below a light to a retrial xxpon, and redetermination of, fhe question of estoppel, the impropriety would have been manifest at once. The case might, to be sure, have been opened below, upon a proper showing, for the purpose of letting in new evidence upon old issues; but that would not have involved the retrial of issues to which the new evidence was not applicable. Where a case in equity, triable upon written evidence, involves independent issues, aud it is opened for the purpose of letting in newly discovered evidence xxpon one of [97]*97the issues, there is no more reason for letting in evidence not newly discovered upon the other issues than there would, be in opening the case in the first place for evidence not newly discovered. The facts, then, in regard to this estoppel were to be taken as before determined, subject merely to the showing, if the plaintiff could make it, that the collection and assessment of taxes were made by mistake. We think, too, that we are equally precluded from a re-examination of the legal question.
.. practice in tiie court™0 An appellate court may, and should, overrule its decisions where they are wrong, and where adhering to them would work more mischief than overruling them. As between persons not parties to a decision it has only the force of an authority. If erroneous, they should not be affected by the error because they are in no way responsible for it. As between the parties to a decision it becomes an adjudication. It is urged, however, that it should not be so considered so long as the case is pending. Whatever force there might be in this j>osition in an action ■at law, where the right to introduce new evidence after verdict involves the retrial of the whole case, we think it cannot be maintained in a case like this. Indeed, the authorities seem to go to the extent of holding that the decision of an appellate court becomes conclusively the law of the case, to be followed in all subsequent proceedings, whether the action be at law or in equity. Of course if the facts change, the rule of law as announced may become inapplicable. In such a case it may become necessary to apply a different rule. Day v. Gaylord, 53 Ind., 365. But the facts remaining the same, the rule of law as once held must remain the rule for the case. In Dewey v. Gray, 2 Cal., 377, it was admitted that a former decision in the case was made in abrogation of one of the plainest principles of law. Hayeekeelot, J., said: “If this case were a new one I would not hesitate to overrule it. But legal rules deprive us of the power to do so. The decision having been made in the case, it has become [98]*98the law of the case, and it is not now the subject of revision.” In Stacy v. Vermont Cen. R. Co., 32 Vt., 552, the court said: “ The rule has been long established in this State, often declared from the bench, and we believe uniformly adhered to, that in the same case this court will not reverse or revise their former decisions. Whatever views the different members of the court may entertain as to the soundness of the former decision, we all agree that the doctrines there annunciated are to be regarded as the law of this case.” In Parker v. Pomeroy, 2 Wis., 122, there had been a change in the members of the court between two appeals, as in the case at bar, yet on the second appeal the court said: “ However we may differ with the conclusions of the court as contained in the opinion given, still it must be esteemed for the purposes of the present case res adjudícala P See, also Davidson v. Dallas, 15 Cal., 82; Phean v. San Francisco, 20 Cab, 45; Rector v. Deanly, 14 Ark., 307; Washington Bridge Co. v. Stewart, 3 Howard, 425; Hawley v. Smith, 45 Ind., 183; Thompson v. Dill, 34 Ala., 177.
Taking, then, the former decision as res adjudícala, we have nothing for determination except the new is§ue tendered by' the amended replication. Does the evidence show that the assessment and collection of taxes were made by mistake?
The lands in controversy amount to about twenty-six hundred acres. This court found upon the former appeal that they were assessed to the defendant nearly every year from 1861 to 1868 inclusive, and that the plaintiff received from the defendant taxes on the land to the amount of more than six hundred dollars. The mistake, if any, in assessing this land to the defendant, and collecting taxes upon it, arose from the fact that the defendant was the undisputed owner of a large quantity of land in the county, and in making out the list of the defendant’s lands it was inadvertently made to comprise not only what the defendant confessedly owned, but all that it claimed to own, including-the lands in question.
That a mistake should be made for several years in regard [99]*99to the taxation of twenty-six hundred acres of land appears upon the face of the transaction a strange circumstance, and it is not easily credible.
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Adams, J.
1. PRACTICE : afteimai1-* diiigence. — It appears to us that the ground upon which the judgment of the court below is based is not tenable. The question of diligence was determined upon the -1 ° r a®davits which accompanied the plaintiff’s application for an order allowing it to amend and tender a new issue. It was not to be determined again, we think, upon the trial. It is true such affidavits are taken ex jocurte, and do not constitute as satisfactory evidence as might be elicited upon an examination and cross-examination of witnesses,. But they constitute the sole evidence of diligence in an application for a new trial in an action at law, where the question of diligence is involved, and we think that thay are sufficient in an action in equity.
But notwithstanding the court may have erred in the ground of its decision, the judgment must be allowed to stand if the plaintiff has failed to prove its averment that the assessment and collection of taxes were made by mistake, unless, as the [96]*96plaintiff claims, the whole case is subject to review, and upon such review the decision appears to be wrong.
2____ retnai. The first question which presents itself is as to whether the plaintiff was limited to the trial of the new issue presented in the amended replication. In our opinion pj. waS- We have come to this conclusion with much caution, because it is strenuously insisted by the learned counsel for the plaintiff that it should not be held to be estopped by the assessment and collection of taxes, even if the assessment and collection were not made by mistake. It is said in the first place that the court was misled in regard to the facts upon which the estoppel was grounded, as appears from the evidence produced at the last trial; and in the second place that as a matter of law the assessment and collection of taxes by a county do not estop it from claiming title to the property taxed.
Some of the members of the court have come to entertain considerable doubt as to the correctness of the ruling, holding that there was an,estoppel in this case. But we think that we cannot go into that question. The case was not remanded. for a new trial, but for judgment in accordance with the opinion. The court below could have done nothing but render judgment if there had been no application for an order allowing the filing of an amended replication and the tender of a new issue upon the ground of a newly discovered fact material to the determination of the case. If without such application the plaintiff had claimed in the court below a light to a retrial xxpon, and redetermination of, fhe question of estoppel, the impropriety would have been manifest at once. The case might, to be sure, have been opened below, upon a proper showing, for the purpose of letting in new evidence upon old issues; but that would not have involved the retrial of issues to which the new evidence was not applicable. Where a case in equity, triable upon written evidence, involves independent issues, aud it is opened for the purpose of letting in newly discovered evidence xxpon one of [97]*97the issues, there is no more reason for letting in evidence not newly discovered upon the other issues than there would, be in opening the case in the first place for evidence not newly discovered. The facts, then, in regard to this estoppel were to be taken as before determined, subject merely to the showing, if the plaintiff could make it, that the collection and assessment of taxes were made by mistake. We think, too, that we are equally precluded from a re-examination of the legal question.
.. practice in tiie court™0 An appellate court may, and should, overrule its decisions where they are wrong, and where adhering to them would work more mischief than overruling them. As between persons not parties to a decision it has only the force of an authority. If erroneous, they should not be affected by the error because they are in no way responsible for it. As between the parties to a decision it becomes an adjudication. It is urged, however, that it should not be so considered so long as the case is pending. Whatever force there might be in this j>osition in an action ■at law, where the right to introduce new evidence after verdict involves the retrial of the whole case, we think it cannot be maintained in a case like this. Indeed, the authorities seem to go to the extent of holding that the decision of an appellate court becomes conclusively the law of the case, to be followed in all subsequent proceedings, whether the action be at law or in equity. Of course if the facts change, the rule of law as announced may become inapplicable. In such a case it may become necessary to apply a different rule. Day v. Gaylord, 53 Ind., 365. But the facts remaining the same, the rule of law as once held must remain the rule for the case. In Dewey v. Gray, 2 Cal., 377, it was admitted that a former decision in the case was made in abrogation of one of the plainest principles of law. Hayeekeelot, J., said: “If this case were a new one I would not hesitate to overrule it. But legal rules deprive us of the power to do so. The decision having been made in the case, it has become [98]*98the law of the case, and it is not now the subject of revision.” In Stacy v. Vermont Cen. R. Co., 32 Vt., 552, the court said: “ The rule has been long established in this State, often declared from the bench, and we believe uniformly adhered to, that in the same case this court will not reverse or revise their former decisions. Whatever views the different members of the court may entertain as to the soundness of the former decision, we all agree that the doctrines there annunciated are to be regarded as the law of this case.” In Parker v. Pomeroy, 2 Wis., 122, there had been a change in the members of the court between two appeals, as in the case at bar, yet on the second appeal the court said: “ However we may differ with the conclusions of the court as contained in the opinion given, still it must be esteemed for the purposes of the present case res adjudícala P See, also Davidson v. Dallas, 15 Cal., 82; Phean v. San Francisco, 20 Cab, 45; Rector v. Deanly, 14 Ark., 307; Washington Bridge Co. v. Stewart, 3 Howard, 425; Hawley v. Smith, 45 Ind., 183; Thompson v. Dill, 34 Ala., 177.
Taking, then, the former decision as res adjudícala, we have nothing for determination except the new is§ue tendered by' the amended replication. Does the evidence show that the assessment and collection of taxes were made by mistake?
The lands in controversy amount to about twenty-six hundred acres. This court found upon the former appeal that they were assessed to the defendant nearly every year from 1861 to 1868 inclusive, and that the plaintiff received from the defendant taxes on the land to the amount of more than six hundred dollars. The mistake, if any, in assessing this land to the defendant, and collecting taxes upon it, arose from the fact that the defendant was the undisputed owner of a large quantity of land in the county, and in making out the list of the defendant’s lands it was inadvertently made to comprise not only what the defendant confessedly owned, but all that it claimed to own, including-the lands in question.
That a mistake should be made for several years in regard [99]*99to the taxation of twenty-six hundred acres of land appears upon the face of the transaction a strange circumstance, and it is not easily credible. IJpon looking into the special facts of the case it appears still less credible. The swamp claim to the land was rejected October 25, 1861, and the land was approved to the railroad company and certified to it the following March. After the swamp claim was rejected the board of supervisors made an order for the taxation of what they called the railroad lands. The lands in controversy were not specifically mentioned in the order, but they were included in the next tax-list made out, and the clerk of the board testifies that the board had knowledge.that the lands in controversy were included in the list. We are satisfied from the evidence that the understanding was at that time that the railroad company and not the county probably owned this land, and that the determination of the county was to assess it at all events, and gain the taxes if it lost the land. Afterward, in a general compromise of taxes, the taxes upon this land were compromised and paid as was determined upon the former appeal.
We are of opinion, then, that the judgment of the District Court must be
Affirmed.