| Iowa | Nov 26, 1917
I. The foregoing statement fairly presents what must of necessity be, and is, the position of the appellee. It insists that the aforesaid judgment of reversal, being based upon insufficiency of the evidence for plaintiff, operates as a final judgment, and that it should so operate because the law purposes “that a man shall not be twice
We held, in Landis’ case, that the maxims “that a man shall not be twice vexed for one and the same cause,” and “it is to the public welfare that there be an end of litigation,” are not applicable to the case of a remand on appeal for retrial or resubmission of the facts under the same issue; that a general order of reversal in a law action tried below to a jury has the effect of sending the cause back to the lower court for full retrial, even though the opinion on reversal shows that the evidence was insufficient to sustain the judgment of the lower court; and that, while the Supreme Court may in such case avoid a retrial, if that is what should be done, in its judgment, it does not so order by a general reversal, but must do so by entering special order, or by specifically directing the lower court to enter a final judgment.' We applied this principle to an action for personal injury where, on appeal from a judgment in favor of plaintiff, the Supreme Court found that he was guilty of contributory negligence, and was not entitled to recover on the doctrine of the last clear chance, and .where the final language of the opinion on reversal was, “for the reasons pointed out, the judgment must be and it is reversed,” and
Our final conclusion was that, therefore, the court erred in sustaining the motion of the defendant for judgment. We adhere to this position. Wherefore, the order and judgment appealed from must be — Reversed.