Brimm v. Jones

45 P. 46, 13 Utah 440, 45 P.R. 46, 1895 Utah LEXIS 31

Opinions

Miner, J.:

This action was brought by the respondent, as road supervisor, against the appellant, for damages caused a public highway constructed upon a hillside in driving a floclc of sheep upon the same, thereby destroying the banks, and rolling rocks thereon. The defendant filed his demurrer to the complaint, alleging that it did not state facts sufficient to constitute a cause of action, and also filed an answer. Respondent obtained a judgment of $10 in the justice’s court. The appellant appealed to the district court, and there his demurrer was sustained. Respondent declined to amend, and final judgment was entered against him, and the complaint dismissed. Appellant appealed to the supreme court. The supreme court heard the case upon the question whether the complaint stated a cause of action, and held that the same did state a cause of action, and reversed tlie decision of the district court. This decision is found in the case of Brimm v. Jones, 11 Utah 200, 30 Pac. 825. The case came on for trial again in the district court. Appellant withdrew his answer. The demurrer was then overruled, and, the appellant declining to amend, judgment was entered for the respondent, and the appellant appeals from the judgment so rendered, and alleges that the court erred in rendering judgment dismissing the complaint.

The respondent now claims that the question of law decided in the same case on the former appeal in this court are conclusive on the court and parties, and becomes the law of the case, whether rightfully or wrongfully decided. The territorial court held in Venard v. Green, 4 Utah 456, 11 Pac. 337, upon a similar question, as follows: “The questions of law and fact being the same, the decision on the former hearing becomes the law of the case. Upon a second appeal, where the questions are the same, this court will not reverse it rulings as made on the first appeal. So far as the particular case is concerned, the first decision becomes the law, and a judgment of the court below in accordance with the opinion of this court will not be reversed on appeal from the judgment. Polack v. McGrath, 38 Cal. 666; Yates v. Smith, Id. 60.

In Clary v. Hoagland, 6 Cal. 685, the court said: “It is well settled that when a case has been taken to an appellate court, and a judgment obtained on points of law involved, such judgment, however erroneous, becomes the law of the case, and cannot, on a second appeal, be altered or changed.” In Leese v. Clark, 20 Cal. 416, the court held in a similar case “that the former decision upon the same case is no longer open for consideration; whether right or wrong, it has become the law of the case.” The same doctrine was held in Sharon v. Sharon, 79 Cal. 686, 22 Pac. 26, 131. In Krantz v. Railway Co., 43 Pac. 622, 13 Utah 1, this court held that an appeal from a judgment or order which the district court entered in exact accordance with the mandate of this Qourt upon a previous appeal will be dismissed upon motion of the appellee. The court said, “It is evident that this is an attempt to have another review of the rights of the parties on the same record which was reviewed on the former appeal,” and dismissed the appeal. In this case it is apparent that the same questions presented and'previously passed upon by this court are again presented by this record for review, and in conformity with the previous rulings of this court, referred to, and the rule applicable to this case, the appeal is dismissed, with costs.

Zaxe, C. J., concurs.