Hopkins v. Adam Roth Grocery Co.

Court of Appeals of Kentucky

Hopkins v. Adam Roth Grocery Co.

49 S.W. 18, 105 Ky. 357, 1899 Ky. LEXIS 211

CourtCourt of Appeals of Kentucky

DecidedJanuary 19, 1899

StatusPublished

Cited by9 cases

This text of 49 S.W. 18 (Hopkins v. Adam Roth Grocery Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hopkins v. Adam Roth Grocery Co., 49 S.W. 18, 105 Ky. 357, 1899 Ky. LEXIS 211 (Ky. Ct. App. 1899).

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Opinion

JUDGE HAZELRIGG

delivered the opinion oe the court.

The legal principles determined on the first appeal of a case are not merely precedents for the guidance of this court on a second appeal of the same case. But the law as first determined — right or wrong — is the law of the case, and must control, not only the lower court upon a return of the case, but also this court in any subsequent appeal. Opinion of appellate court on first appeal can not be revised in the same cause upon a second appeal. Legrand v. Baker, 6 T. B. Mon., 243; Ford v. Gregory’s Heirs, 10 B. Mon., 175. On a former appeal in this case, 16 Ky., 679 [29 S. W., 293], it was held, contrary, perhaps, to the weight of authority, [358]*358that as the minor Hopkins was doing business as if of full age, and had the appearance of an adult, he must plead affirmatively that he disclosed to the agent selling him the merchandise sued for the fact that he was a minor; otherwise, the chancellor must hold him estopped to plead his infancy as a defense to the action for the price of the goods. On the return of the case, the chancellor followed the opinion of this court; and, as Hopkins neither pleaded nor proved the vital fact required in the opinion, a judgment was rendered against him.

Under the authority referred to, we are powerless to disturb the judgment, and it is therefore affirmed.

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JUDGE HAZELRIGG

delivered the opinion oe the court.

The legal principles determined on the first appeal of a case are not merely precedents for the guidance of this court on a second appeal of the same case. But the law as first determined — right or wrong — is the law of the case, and must control, not only the lower court upon a return of the case, but also this court in any subsequent appeal. Opinion of appellate court on first appeal can not be revised in the same cause upon a second appeal. Legrand v. Baker, 6 T. B. Mon., 243; Ford v. Gregory’s Heirs, 10 B. Mon., 175. On a former appeal in this case, 16 Ky., 679 [29 S. W., 293], it was held, contrary, perhaps, to the weight of authority, [358]*358that as the minor Hopkins was doing business as if of full age, and had the appearance of an adult, he must plead affirmatively that he disclosed to the agent selling him the merchandise sued for the fact that he was a minor; otherwise, the chancellor must hold him estopped to plead his infancy as a defense to the action for the price of the goods. On the return of the case, the chancellor followed the opinion of this court; and, as Hopkins neither pleaded nor proved the vital fact required in the opinion, a judgment was rendered against him.

Under the authority referred to, we are powerless to disturb the judgment, and it is therefore affirmed.

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Bluebook (online)

49 S.W. 18, 105 Ky. 357, 1899 Ky. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-adam-roth-grocery-co-kyctapp-1899.

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