Gadsden v. Thrush

63 Neb. 881 | Neb. | 1902

Holcomb, J.

This is the second appearance in this court of the above-entitled cause on appeal. On the first appeal the decree of the district court was reversed and the cause remanded for a new trial, with directions to ascertain the amount of money advanced to Thrush by the Schuyler National Bank, deduct therefrom all payments, whether of principal or interest, and award foreclosure for the remainder, if any; to postpone the lien of the First National Bank to that of the plaintiff, and for such further proceedings as might be necessary, and not inconsistent with the opinion rendered in the case. Gadsden v. Thrush, 56 Nebr., 565. A rehearing of the cause was subsequently allowed, and upon reargument a decision was rendered adhering to the former judgment of reversal. At the close of the opinion on rehenring it is said: “For the reasons given we think the former opinion should be adhered to, and the order therein prescribed should govern the further proceedings in this case.” Gadsden v. Thrush, 58 Nebr., 340, 348. Upon the cause being remanded for a new trial in conformity with the views expressed in the two opinions heretofore referred to another trial has been had in the district court, and a decree rendered consistent with the mandate filed in the court below. From this decree the Schuyler National Bank and William H, Sumner appeal.

The former opinions give a full statement of the matters in issue, and it is unnecessary to here restate them. No complaint is made as to any action of the trial court which could be regarded as contrary to the la.w of the case as heretofore announced on the first appeal, nor is it contended that any error or mistake was made in determining the amount due the appellant bank for which it should have a lien and foreclosure thereof in conformity with the views expressed in the first opinion. From the briefs filed by appellants, we are asked only to again investigate and reconsider the same questions presented for consideration and determination .on the first appeal, and which were therein decided. This we can not do. The questions presented for decision by the first appeal having been fully considered and adjudicated, must be accepted as the law of the case binding on the parties in all subsequent proceedings, and can not again be opened up for reexamination, and a new decision thereon. In Missouri P. R. Co. v. Fox, 60 Nebr., 531, it is held: “It is a settled rule in this court that a legal principle involved in the trial of a case, when once determined, becomes thereafter the law of the case, binding, not only upon the trial court, but this court as well, and will not, ordinarily, be reexamined in a subsequent review of the proceedings of an inferior court had in the further trial of the action.” See, also, Barker v. Wheeler, 60 Nebr., 470; Wittenburg v. Mollyneaux, 60 Nebr, 583; State v. Commissioners of Cass County, 60 Nebr., 566; Motley v. Motley, 60 Nebr., 593; Hendershott v. Western Union Telegraph Co., 87 N. W. Rep. [Ia.], 288; Teryll v. City of Faribault, 87 N. W. Rep. [Minn.], 917; Finney v. Guy, 87 N. W. Rep. [Wis.], 255.

We observe nothing to indicate that this case as now presented does not come altogether within the rule' mentioned, and for that reason we must hold the decree appealed from to be in conformity with law, and the same should therefore be, and accordingly is,

Affirmed.