Curtis v. Zutavern

102 N.W. 77, 73 Neb. 45, 1905 Neb. LEXIS 23

• Court: Nebraska Supreme Court
• Decided: January 5, 1905
• Docket: No. 13,690
• Status: Published

Opinions

Ames, C.

A former1 decision in this case is officially reported in 67 Neb. 183. It Avas there adjudged, after a full recital and consideration of the pleadings and evidence, that the defendant Zutavern was estopped by the decree in partition and by the recitals of the bond in suit from claiming more than three-ninths of the land in controversy, including, of course, the reversionary title to the fund set apart for the guaranteeing of the dower estate, and represented by the bond; and the cause was remanded for further proceedings in accordance with the opinion. Evidently nothing consistent with this decision and having a tendency to enlarge the recovery of the defendant could have properly been shown in such further proceedings, except some transaction or transactions occurring subsequently to the date of the rendition of the decree of partition and of the giving of the bond, and tending to discharge the estoppel.

There was, however, a new trial in the district court upon the same pleadings as formerly, in the course of which evidence was produced, and inquiries were gone into, tending to impeach the decree in partition by showing that it was mistakenly or inadvertently procured, and that it is inequitable and unjust to the extent of two-ninths of the fund, one each of which was represented by Henry Cannon and Smith Cannon. This investigation, which was conducted in spite of the protest of the plaintiffs who insisted upon a judgment pursuant to the decision of this court, resulted in a judgment in their favor for three-ninths instead of five-ninths of the fund, one-ninth thereof, represented by Patience Curtis, having been voluntarily relinquished. How this result Avas reached is not to our minds entirely clear, but it is evident that it Avas by the consideration of matters of controversy merged in and foreclosed by the estoppels above mentioned, and AAiiich are, therefore, no longer proper subjects of judicial discussion. It is the established and necessary practice of this court that issues of law definitely decided upon error or appeal, cannot be relitigated in the distinct court in a subsequent trial of the same case. It is therefore recommended that the judgment of the district court be reversed, and that the cause be remanded, with instructions to ascertain five-ninths of the fund in controversy and render judgment therefor in conformity to the former opinion of this court.

Letton and Oldham, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and that the cause be remanded, with instructions to ascertain five-ninths of the fund in controversy and render judgment therefor in conformity to the former opinion of this court.

Reversed.