Venard v. Green

4 Utah 456

• Court: Utah Supreme Court
• Decided: June 15, 1886
• Status: Published

Opinions

Powers, J.:

This case has already been before this court: Venard v. Old Hickory Min. Co., ante p. 67. At the June term, 1885, a petition for rehearing was filed and denied. Upon the case being remanded, the court below entered up judgment, and the sole question on this hearing is whether judgment was entered in accordance with the opinion of this court. We decline to consider tbe question raised by tbe appellant as to whether this court erred in its construction of tbe law. That was a proper subject upon tbe petition for a rehearing. Tbe questions of law and fact being tbe same, tbe decision on the former hearing becomes tbe law of tbe case. Upon a second appeal, when tbe questions are tbe same, this court will not reverse its rulings as made on tbe first appeal. So far as tbe particular case is concerned, tbe first decision becomes tbe law (Pollack v. McGrath, 38 Cal., 666; Yates v. Smith, 38 Cal., 60; Page v. Fowler, 37 Cal., 100; Tyler v. Magwire, 17 Wall., 282, 283; Chateau v. Allen, 74 Md., 56; Martin v. Heinlen, 59 Cal., 181); and a judgment of the court below in accordance with tbe opinion of this court will not be reversed on appeal from tbe judgment (Yates v. Smith, 40 Cal., 662; Pico v. Cuyas, 48 Cal., 639; Lick v. Diaz, 44 Cal., 479; Gates v. Salmon, 46 Cal., 362).

Let us therefore determine whether tbe judgment of tbe lower court is in accordance with tbe decision of this court. Emerson, J., in delivering tbe opinion, uses this language: “Tbe appellant was entitled to a judgment against tbe respondents for tbe amount of bis wages which tbe court finds due and unpaid, and I can perceive no reason why be was not entitled to a decree foreclosing bis lien, and for an order of sale as against tbe intervenors. His lien antedated that of tbe judgment upon which their rights were founded, and be has done nothing to forfeit it, waive or postpone it. It can make no difference with bis rights, as against tbe respondents or inteivenors, that bis co-plaintiff bad obtained a judgment for bis claim, and a foreclosure of bis lien. Tbe record shows that tbe property will more than satisfy both liens, so that there will be no question about apportioning tbe proceeds of tbe sale. Tbe purchasers at tbe execution sale, who are tbe inter-venors here, must be held to have purchased the property subject to tbe prior lien of tbe appellant.

While we are not exactly satisfied with tbe reasoning of tbe learned judge, still, right or wrong, his conclusions are tbe law of this case, aixd as tbe judge of tbe court below carefully and. conscientiously followed tbe opinion, judgment must -be affirmed, with costs.

Zane, C. J., and Boreman, J., concurred.