Burns v. Ledbetter

• Decision Date: 14 February 1882
• Docket Number: Case No. 1442.
• Citation: 56 Tex. 282
• Parties: J. R. AND ADELIA BURNS v. W. H. LEDBETTER.
• Court: Texas Supreme Court

56 Tex. 282

J. R. AND ADELIA BURNS

v.W. H. LEDBETTER.

Case No. 1442.

Supreme Court of Texas.

Feb. 14, 1882.

APPEAL from Fayette. Tried below before the Hon. N. G. Shelley, special judge.

J. R. Burns, for appellants.

No briefs for appellee.

GOULD, CHIEF JUSTICE.

With a single exception the questions now sought to be presented were settled on a former appeal. 54 Tex., 374. By agreement of parties the cause was, whilst pending in this court on that appeal, referred to the commissioners of appeal, and they having reported their award and opinion, said award was regularly made the judgment of this court. That award and judgment settled the questions of law decided therein, for the purposes of any further proceedings in the case, as conclusively as if the appeal had been disposed of by this court, without reference to the commissioners of appeal. It has even been suggested that, by reason of the consent of parties to the reference, the award may be more conclusive on them than would be the adjudication of the case by this court. However this may be, we are satisfied that the questions decided by the commissioners of appeal in arriving at their award are as conclusively settled as the law of the case as they would have been had the case been decided in the usual course of procedure by this court. How conclusive such an adjudication by this court would be, is a point on which the court expresses no opinion. Cases have occurred in which this court has deemed itself justified in departing from the law as decided on the former appeal. See Layton v. Hall, 25 Tex., 212; Reeves v. Petty, 44 Tex., 149; Ragland v. Rogers, 42 Tex., 422; White, Smith & Baldwin v. Downs, 40 Tex., 207.

Speaking only for myself, I desire to say that whilst on the authority of these cases it must be conceded that, in this state, the rule making the former decision the law of the case is not inflexible, but has its exceptions, that the rule itself is well established, is founded on the policy of preventing useless litigation, and that it should not be departed from even for the purpose of reinvestigating the correctness of the former decision, save for urgent reasons. Reference is made to some authorities supporting the rule. Wells on Res Adjudicata, ch. 44; Burke v. Matthews, 37 Tex., 74;Corning v. Troy Nail Co., 15 How., 466; Ogden v. Larrabee, 74 Ill., 510; Donner v. Palmer, 51 Cal., 699; Dodge v. Gaylor, 53 Ind., 368, citing numerous authorities. For convenience of reference some of these authorities are given here. Roberts v. Cooper, 20 How., 467;Cumberland Coal Co. v. Sherman, 20 Md., 117;Mitchell v. Davis, 23 Cal., 381;Parker v. Pomeroy, 2 Wis., 112; Booth v. Commonwealth, 7 Met., 285; Craig v. Bagby, 1 T. B. Mon., 148;Groff v. Groff, 14 Serg. & R., 181;Wilcox v. Hawley, 31 N. Y., 648; Nichols v. Bridgeport, 27 Conn., 459; Chambers v. Smith, 30 Mo., 156; Jesso v. Cater, 28 Ala., 475. See also Ram on Legal Judgments, ch. 14, p. 197, where it is said: “If the rule of stare decisis is of any value, it should be adhered to, when the precise question is again presented in the same court, between the same parties, and on the same state of facts, citing N. Haven R. R. v. Ketchum, 34 How. Pr., 304. In view of this rule, I would myself have thought it proper to dispose of all the questions passed on in the opinion of the commissioners of appeal by a simple reference to that opinion as having conclusively settled them for the purposes of this appeal. The other members of the court, however, entertain views which lead them more readily to re-examine such questions, and the authorities have been looked into sufficiently to satisfy us that the rules of law laid down by the commissioners of appeal are supported by the previous decisions of this court and should be adhered to.

The principal question was as to Ledbetter's right to recover back the purchase money bid and paid by him at an execution sale, void because the execution conferred no authority to sell any property of the defendants in the execution, the amount so bid having been applied to the payment of the judgment. Ledbetter was the attorney of the judgment creditor, and sued out the execution, notwithstanding the judgment had been so far superseded that there could be no sale, though execution might still issue, under which property might be levied and held subject to the result of the appeal. After buying in the land at the sale, he sued Burns and wife for its recovery, sequestered it, and obtained possession by himself replevying. When that suit was decided against him he brought this his second action of trespass to try title, seeking, however, as alternative relief, the recovery back of the purchase money with interest, and asking for other relief.

By the award of the commissioners he was allowed the recovery sought, and to secure him therein was subrogated to the lien of the original judgment which had been in part paid by his purchase. His right to recover back the purchase money is, we think, complete both on principle and authority. If the judgment creditor had been himself the purchaser at a sale, void because of the character of the process, and had thereby apparently satisfied his judgment “without any gain to himself or loss to the defendant,” he could on motion have had the satisfaction set aside, or, in this state, have maintained an action on the judgment as unsatisfied. Townsend v. Smith, 20 Tex., 465; Freeman on Judgments, ...