143 Iowa 733 | Iowa | 1909
Lead Opinion
This case has once been before us, and the opinion filed therein will be found reported in 126 Iowa, 158. After the remand to the district court, the objectors, heirs of the deceased, Lucian S. Cook, amended the objections upon which the ease had been tried and submitted here, by pleading the statutes of Nebraska, which provide that damages for the death of a person shall be for the exclusive benefit of the widow and next of kin, and shall be distributed to such widow and next of kin in the proportion provided by law for the distribution of personal property left by intestates; that is to say, in equal shares to the children. The executrix moved to strike this amendment because filed too late, and because all matters
Suggestion is made that as the case is in the probate, and the matter always open until final discharge of the executrix, a different rule should obtain. There might be cases which should be regarded as exceptional upon this ground alone; but this is not one of them. On the original hearing there was a square issue between the widow and the heirs regarding who was entitled to the money in the -hands of the executrix. In no other sense was there an accounting. No one was excepting to any items of account, either debit or credit. As the issue of right to the money was squarely presented and decided, the decision was as binding as if it had arisen in any other form of action. It was a full and complete adjudication of the rights of'the parties, and, when the case went to decree, that decree became as effective as any other and subject to the same rules and limitations. Appellees say in argument that “the question for determination under the objections was whether the fund was disposed of by the will of decedent; and the question still remains the same under the amended objections. This court determined that under the evidence introduced at the first hearing the will controlled the fund, nothing more.” With this concession in mind, it becomes very apparent that the objectors are seeking to try their case in piecemeal. A thorough discussion of the matter of amendments to pleadings after a reversal in this court will be found in Allen v. Davenport, 115 Iowa, 20.
The trial court was in error in permitting the amendment and in making the order it did. The case will be remanded to the district court for an order in harmony with the former opinion. Reversed and remanded.
Dissenting Opinion
(dissenting). — This is a controversy over the final report of the executrix, who is widow of the deceased. There was but one asset, and the controversy is over the division of that asset. The deceased was killed in-a railroad accident. The executrix received from the railroad company $3,200 in compromise of damages for the wrongful death. The deceased left a will devising all of his estate to his widow. The widow claimed the entire fund under the will. The objector, a son by a former marriage and a minor, appeared by his next friend, and claimed a share in the fund. The legal ground urged by him as a basis for his claim was that the death of the decedent was instantaneous, and that no cause of action therefor arose in his lifetime, and that, therefore, it did not pass by the will. The argument was that the cause of action was created in favor of the administrator by statute, and that it arose after the death or at the instant thereof. The trial court sustained this view, and ordered the executrix to pay the objector one-third of the fund. An appeal was prosecuted to this court, and the order was reversed, and the case remanded without direction. The only question considered on the appeal was the construction of Code, section 3313. After procedendo to the
The majority opinion refuses to deal with the merits of the case as made upon the second trial, but orders a peremptory reversal on the ground that every question, both of law and fact, was foreclosed and adjudicated by the first reversing opinion. If this were an equity case, triable de novo in this court, I should find no fault with the conclusion reached in the majority opinion, and would only dissent from that part of the argument therein which treats the reversal of an action at law as having the same adjudicating effect as a reversal of an equity case. This is not an equity case. It was not such at the time of the first appeal. The appeal was tried upon errors only. It was remanded without direction. This left the case in the trial court for retrial. The decision in this court was an adjudication of the legal question and nothing more. "Whether it would prove decisive of the case must depend upon the facts appearing upon the second trial. The jurisdiction of the trial court was as complete and broad upon the second trial as upon the first, and its discretion to permit amendments and its duty to receive evidence was in no manner different in the second trial than in the first. It was bound by the legal question adjudicated on the first appeal, but it was bound by no fact found upon the first trial. Hollenbeck v. Marshalltown, 62 Iowa, 21.
Even a question of law adjudicated upon the first appeal may. become inapplicable upon the second trial by
In Zimmerman v. Robinson, 118 Iowa, 117, on the first appeal the case -was reversed on grounds that were fatal to the plaintiff as the case was then made. The same case came back here on a second appeal on different pleadings and on. a different theory, and it was affirmed. See 128 Iowa, 72. The case of Boddy v. Henry & Conover, 113 Iowa, 462, 126 Iowa, 31, furnishes a similar illustration. It is' stated in the majority opinion “that the former opinion was res adjudícala not only as to all matters which were appealed, but as to all matters necessarily involved and which might have been appealed.” That this is the rule .that applies to prior adjudications in former actions I concede. But, as applied to the effect of a reversing opinion in an action at law before the termination of the litigation in a final judgment, the rule has never been announced so broadly before. All that has been held heretofore is that such reversing opinion in a law action adjudicates the'legal questions passed upon, and nothing more. Nor are the parties afterwards precluded from showing facts which may avoid the applicability of the legal questions so settled. The first five cases cited in the majority opinion in support of this proposition all involved final judgments in former actions. In the ZalesTcy. case the plaintiff’s pleadings had upon two successive trials admitted certain facts. On the third trial he amended his pleading and denied such facts, and this court held that the amendment under the circumstances should not have been permitted. In the Hendershotl case it was expressly stated that the evidence on the second trial was the same as on the first. The legal questions decided upon the first appeal were therefore determinative. The case of Wood v. Hall was an equity case and involved a question of estoppel against a taxpayer in relation to public improve
In the case at bar tbe • question of where the cause of action arose was not considered at all, nor was there any evidence upon that question except possibly tbe fact that tbe accident occurred in Nebraska. Tbe additional facts proved are in no sense inconsistent with any fact proved on the former trial. They are simply additional facts which are made. to appear upon the second trial. Inasmuch as tbe majority opinion has not considered tbe case on its merits, I do not go into that question. For tbe purpose of tbis dissent, I assume that tbe appellee presents here a meritorious case, and that be is entitled to maintain tbe judgment entered in bis favor in the court below, provided he can have a bearing here on tbe merits. I think be is entitled to such a bearing.