Malone v. Carroll

33 Ala. 191 | Ala. | 1858

BICE, C. J.

The bill in this case was filed to obtain the benefit of an equitable set-off. In 1854, upon a hearing of the cause “ on bill, answers, demurrers and proof,” the chancellor pronounced his decree dismissing the bill. On appeal by the complainant from that decree, this court, at its January term, 1856, pronounced and filed its opinion, which not only declared the principles that should govern the case, but applied them to the pleadings and proof, and decided all the material points in favor of the complainant, and reversed the decree of the chancellor, and remanded the cause “for further proceedings, not inconsistent with the principles ” declared in the opinion.—See Carroll v. Malone, 28 Ala. Bep. 521.

After the cause was thus remanded, the respondents applied to the chancellor for leave to take further testimony, and also for leave to file a cross bill for discovery from the complainant. The chancellor overruled each application. The pleadings and proof being substantially the same as they were when the case was formerly here, the cause was finally disposed of by the chancellor, and a decree was pronounced in conformity to the points decided and principles settled by our opinion on the former appeal. From that decree the respondents took the present appeal.

The points now relied on for a reversal are disposed of by the following incontrovertible positions:

1. After the chancellor, upon a hearing of a cause on bill, answers, demurrers, and proofs, has filed his decree dismissing the bill; and the supreme court, on an appeal by the complainant from that decree, has filed its opinion, declaring the principles which govern the case, and applying them to the pleadings and proofs, and determining all the material points in favor of the complainant; and has, in connection with that opinion, reversed the decree of the chancellor, and remanded the cause for further proceedings, not inconsistent with the principles settled by the opinion,—neither party is allowed, as matter of right, to enter into a fresh examination in that cause of the questions in issue, either by a further examination of witnesses, or by discovery from his adversary. Hamersly v. Lambert, 2 Johns. Chancery Reports, 432 ; Southard v. Russell, 16 How. Rep. 547 ; McClellan v. Crook, 7 Gill, 333 ; Young v. Frost, 1 Md. R. 377.

2. On the second appeal in a case, the points decided and principles settled on the first appeal must govern the appellate court, unless the record shows so material a change of the case as to render them inapplicable. Brown v. Somerville, 8 Md. R. 444. And no error can be imputed to the inferior court, if in its subsequent proceedings it conformed to the points so decided, and to the principles so settled.—Young v. Frost, supra; Thomas v. Doub, 1 Md. R. 324; Matheson v. Hearin, 29 Ala. R. 210; Matthews v. Sands, 29 Ala. R. 136.

3. WheD, in the absence of all indemnity, a complainant would be entitled to the benefit of an equitable set-off set forth in his bill, his mere failure to disclose in his bill that he had received partied indemnity thereon cannot -operate to deprive him of all claim to relief. If it could so operate in any case, it could not in one like this, where, upon the very same evidence in relation to the partial indemnity, and in the very same cause, the appellate court had previously reversed the decree of the ■chancellor dismissing the bill, and had, in effect, decided that the complainant was entitled to relief, notwithstanding his failure to disclose that he had received partial indemnity.—See brief of the counsel for appellee, and the authorities there cited.

If there be any error, it is not to the prejudice of the appellants; and the decree of the chancellor must be •affirmed, at their cost.