Meyers v. Dittmar

47 Tex. 373 | Tex. | 1877

Moore, Associate Justice.

All the questions upon which it is necessary for us to pass in this ease have been heretofore considered and determined in accordance with the decisions of the Supreme Court of the United States in similar cases. (See Mathews v. Rucker, 41 Tex., 636; Short v. Abernathy, 42 Tex., 94; San Patricio County v. McLane, 44 Tex., 392, and other cases not yet reported.) It would, therefore, he a useless consumption of time to reiterate the views which have been already expressed in regard to them.

In the cases to which we have reference, the court directly overruled the entire line of previous decisions on suits upon executory contracts, which, in any way, involved in their consideration what is commercially known as Confederate money.

The instructions given the jury in this case were unquestionably in strict accord with the view formerly entertained by this court in regard to such contracts, and also with what was expressly declared to be the law of this case when it was before the court on a former appeal. (Dittmar, Adm’r, v. Myers, 39 Tex., 295.) It may, therefore, be insisted with much force, and no doubt with great weight of authority, that whatever may be thought as to the correctness of the general views formerly entertained by the court, or the influence and control which they should have in other cases now coming before us for determination, the rulings in this particular case on the former appeal must be regarded as res adjmlicata, and equally conclusive and binding upon this court as upon the court below when before it. This proposition seems, it must be admitted, to be sustained by the very highest authority. (14 S. & M., 100; 21 Cal., 548; 28 Id., 591; 23 Id., 381; 3 How., (U. S.,) 424; 12 Peters, 488; 4 Gilman, (Ill.,) 546; 4 Stew. & Port., 79.)

But the law, as ruled in the cases, is, unquestionably, contrary to the practice of this court, and has never received its sanction or approval, (40 Tex., 225; 25 Tex., 204;) and, at present, at least, we see no reason for its adoption. To do so, we would have to disregard our own repeated decisions upon contracts of the character upon which this action is brought, to give effect to one by our predecessors, which has been,-by these decisions, directly overruled. If the practice of this court had been otherwise than it has, and such as it seems to be else.where, we should, of course, have no hesitancy in doing this; hut as it is, we should have to make a radical change in this respect, merely to affirm what we ourselves have repeatedly held to he an erroneous judgment. This, we are of the opinion, we should not do.

The judgment is reversed and the cause remanded.

Eeversbd and Bemanded.