Lead Opinion
Respondent brought this action to recover from appellants certain moneys which be claimed to bave advanced to one McDonald, and also to recover certain damages. When tbe cause was first tried in tbe lower court, at tbe close of respondent’s case, a judgment of dismissal was entered, and appealed to this court, where tbe judgment was reversed.
(McGill v. Baker,
. . the plaintiff offers in evidеnce the statement of facts in the first trial of this case, on February 8, 1927, as his evidence, and testimony in the second trial of this case, together with all the record and exhibits, to be considered as though the witnesses were called and were again sworn and testified and the exhibits introducеd in the same manner.”
On the first trial, all of the present appellants hаd been called as witnesses and had testified fully as to the transaction. In the instant case, the trial court stated in his memorandum opinion:
“I havе read the testimony given in the first case, as well as the extensive notes taken by me on the second trial, and I can see nothing added by the second trial. It will be recalled that each of the defendants were called as a witness by the plaintiff. The testimony given by the defendants as witnesses called by the plaintiff covers all of the ground embraced in thеir testimony as witnesses on their own behalf. So, if, under the testimony given at the first triаl, it followed that they had assumed the contract, a different conсlusion cannot now be reached.”
We have compared thе evidence introduced at the first .trial with that given at the second trial, and agree with the conclusion of the trial court. The rule seems to differ in various jurisdictions as to whether or not questions considered and determined by the court on a first appeal will be again considered оn a second appeal, but we are committed to the rule that, whether right or wrong, the first decision becomes the law of the casе, and will not again be reviewed. This rule was first laid down in
Wilkes v. Davies,
*416 “But this is the very question, and the only question, decided by this court when the case was before it on the former aрpeal. Hammock v. Tacoma,40 Wash. 539 ,82 Pac. 893 . The decision at that time holding the notice sufficient became the ‘law of the case,’ and the court cannot now properly review it, whether right or wrong. Wilkes v. Davies,8 Wash. 112 ,35 Pac. 611 , 23 L. R. A. 103; Furth v. Snell,13 Wash. 660 ,43 Pac. 935 .”
The record in the present casе being, as we have said, substantially the same as was the record befоre us at the time of our prior decision, we are bound by our prior holding, and will not re-examine the questions there decided.
Appellant urges that certain evidence offered in the instant case was imprоperly rejected. In presenting this assignment of error, only two speсific examples of rejected testimony are called to оur attention. An examination of the statement of facts indicates thаt in one instance the testimony offered was thereafter admitted, аnd' in the second instance we think the testimony as offered was purely hearsay and inadmissible.
Being bound by our prior decision, the judgment is affirmed.
Mitchell, O. J., and Main, J., concur.
Concurrence Opinion
(concurring) — On the question whether the record in the case before us prеsents a situation for the application of the doctrine known аs “the law of the case,” I have some doubt. However, I .am of the оpinion that the judgment is right from the standpoint of the merits, and for this reason I concur in the conclusion reached by the majority.
Holcomb, J., concurs with Fullerton, J.