First Nat. Bank of El Paso v. Cavin

• Decision Date: 07 March 1923
• Docket Number: No. 2679.,2679.
• Citation: 28 N.M. 468,214 P. 325
• Parties: FIRST NAT. BANK OF EL PASO, TEX.,v.CAVIN ET AL.
• Court: New Mexico Supreme Court

28 N.M. 468

214 P. 325

FIRST NAT. BANK OF EL PASO, TEX.,

v.CAVIN ET AL.

No. 2679.

Supreme Court of New Mexico.

March 7, 1923.Rehearing Denied April 21, 1923.

Syllabus by the Court.

All matters determined by a former decision of a case become the law of the case, and are binding upon the courts and litigants.

Additional Syllabus by Editorial Staff.

On remand, the trial court must necessarily look to the opinion, and not to the judgment or mandate, for the law of the case.

Appeal from District Court, Chaves County; Brice, Judge,

Action by the First National Bank of El Paso, Tex., successor to the Texas Bank & Trust Company, against G. E. Cavin and G. N. Amis. From a judgment for plaintiff, defendant Amis appeals. Reversed and remanded, with instructions.

All matters determined by a former decision of a case become the law of the case, and are binding upon the courts and litigants.

Reid, Hervey & Iden and Curtis Hill, all of Roswell, for appellant.

H. C. Maynard, of Roswell, for appellee.

HOLLOMAN, District Judge.

This is an action by the appellee, First National Bank of El Paso, being substituted as plaintiff in lieu of its predecessor, Texas Bank & Trust Company, the original plaintiff, against G. E. Cavin and G. N. Amis, on one certain promissory note. Judgment having been rendered in the lower court against the defendants, the defendant G. N. Amis appealed therefrom.

This is the second appeal of this case, the same having been before us in the case of Texas Bank & Trust Co. v. Cavin et al., reported in 26 N. M. at page 326, 192 Pac. 365. The facts having been stated in the former opinion it is not necessary to re-state them at this time. By our opinion rendered on the former appeal the entire case was determined as to this appellant, except as to one thing. The case was remanded, so that the lower court should have an accounting to determine the amount due plaintiff by the defendant Cavin on the note executed by Cavin to the plaintiff, for which the note in this action was given as collateral security. All that was necessary or proper for the lower court to do after the case was remanded was to determine that amount and render judgment in favor of the plaintiff therefor. The lower court, however, erroneously concluded that it was his duty to have a rehearing of the entire matter, which was done, and findings of fact were made at variance with the findings made at the first trial, which was appealed to this court and decided.

It is a familiar rule of law that all matters determined by a former decision of a case become the law of the case and are binding upon the courts and litigants. As all matters affecting this appellant, except ascertaining the amount due on Cavin's note to the plaintiff, were determined by the former opinion, it is unnecessary for us to further consider this case, except to reverse the same and remand it with instructions to render judgment for the plaintiff against the appellant Amis in the sum of $950.89, being the amount found by the lower court to be due on the note of Cavin to the plaintiff. Interest will not be allowed on said amount, as appellant at the time of the trial offered to pay in court the amount found to be due on said Cavin note; and

It is so ordered.

BRATTON and BOTTS, JJ., concur.

On Motion for Rehearing.

HOLLOMAN, District Judge.

The appellee has filed a motion for a rehearing of this case, and in support of its contention has filed voluminous briefs. In our opinion, heretofore filed in this case, we held that on the former appeal of this case to this court, the entire cause was determined, with the exception, to ascertain by an accounting, the amount owing appellee by the defendant Amis, and that, as in the second trial in the district court, such an accounting was made, the judgment of the lower court should be reversed and remanded, with instructions to render judgment in accordance with said accounting.

Appellee strenuously contends that the lower court, at the second trial, was correct in rehearing all the issues involved, and bases this contention largely upon the wording of the judgment and mandate of this court made and issued at the time this case was first before this court on appeal. Counsel for appellee, in their motion for a rehearing, and in their briefs in support of their motion, contend that the only thing the district court will look to is the mandate and judgment of this court. In effect they contend that, when a case is reversed and a new trial ordered, the lower court is bound by the judgment and mandate only, and may...