85 P. 784 | Kan. | 1906
This is the second appeal of this case to this court. The facts are set forth in the former decision, Harwi v. Klippert, 67 Kan. 743, 74 Pac. 254. Every principle of law set forth in the present appeal was therein decided. The judgment in favor of the plaintiff in error was therein held valid and the order of the court below modifying the same set aside although negotiable promissory notes of Henry Reh were outstanding for the same indebtedness for which the judgment was rendered against him on his answer as garnishee. The situation is not changed by the subsequently occurring fact that the notes have been paid to the legal holder thereof.
.“Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made a subject of reexamination.
“This rule extends not merely to all questions actually presented by counsel, but to all questions existing in the record, and necessarily involved in the decision.” (Headley v. Challiss, 15 Kan. 602, syllabus.)
(See, also, C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394,
Of course this is a hardship on Reh, but it is no greater than the hardship usually incurred by any plaintiff who submits his cause to the decision of a court without pleading or setting forth some right of recovery which in fact he has, or which occurs to a defendant where he submits his defense to the decision of the court without pleading or setting forth some valid defense which he in fact has. When the court is the final trier of the facts and renders a valid judgment upon the facts as presented, and no effort is made to correct the error or omission while such cause is within the jurisdiction of the trial court, the party who erred to his own prejudice is remediless unless the matter omitted may be made the basis' of an independent action. .
The order of the district court is reversed, and the plaintiff in error restored to whatever it may have lost by reason thereof.
