60 Neb. 406 | Neb. | 1900
Lead Opinion
This cause, which is now before the court for the second time, was instituted by Paul F. Clark to recover of the Missouri, Kansas & Texas Trust Company the rental value of a hotel in the city of Lincoln, from July 15,1891, to February 15, 1895. The petition alleges that defendant took and retained possession of the premises wrongfully, and that the rental value thereof, during the tíme
The contention of the defendant is that when this court reversed the judgment the cause stood for trial de novo in the district court. To this proposition we can not agree. The books are full of decisions to the contrary. When a judgment is reversed for an error occurring at the trial, the cause must necessarily be tried again. There is no other way to cure the mistake. But if the error upon which a judgment of reversal is based intervened after the trial, there is no good reason for a retrial of the issues. A conclusion having been once reached which was satisfactory to and accepted by the parties, it ought to be permitted to stand. When the judgment of a trial court has been reversed in an error proceeding, the court should retrace its. steps to the point where the first material error occurred; it should put the litigants back where they were when the initial.mistake was committed; justice requires that much, but it does not require more.
The defendant having failed to move seasonably for a new trial, and the judgment of reversal having left the findings of fact untouched, it was the duty of the district court to render judgment on those findings. This it did, adding interest to the ascertained rental value of the property. The defendant insists that the allowance of interest was unauthorized and cites in support of its position the case of Wittenberg v. Mollyneaux, 59 Nebr., 203. That case was correctly decided. It was an action to recover damages which were not only unliquidated, but were incapable of even approximate ascertainment by reference to the ordinary standards, such as calculation and market value. The damages in the present case were not speculative or dependent upon uncertain elements; the property had a rental value which was easily ascer
The defendant having had the use, for several years, of property having a rental value, we think it is bound to pay interest on the amount which it collected, pr which, by the exercise of diligence it might have received, as rent. If the law does not allow interest in cases of this kind, then it denies to the injured party complete indemnity for the loss which he has sustained through the tortious act of another; it favors the wrongdoer rather than his victim. The case before us happens to be one of peculiar hardships; but it does not justify us in establishing a bad precedent. We see no way by which the defendant can avoid the consequences of what was technically a wrongful act. The plaintiff is entitled to insist .on his advantage; the defendant has made a mistake and it must pay the penalty; “the court awards it, and the 1 aw doth give it.” The judgment is
. Affirmed.
Dissenting Opinion
dissenting.
I dissent, The judgment of the district court on the