Frankland v. Cassaday

• Decision Date: 17 November 1884
• Docket Number: Case No. 1684.
• Citation: 62 Tex. 418
• Parties: C. C. FRANKLAND v. MARY B. CASSADAY.
• Court: Texas Supreme Court

62 Tex. 418

C. C. FRANKLAND

v.MARY B. CASSADAY.

Case No. 1684.

Supreme Court of Texas.

Nov. 17, 1884.

ERROR from McLennan. Tried below before the Hon. B. W. Rimes.

This case has been twice before considered on appeal. For a statement of its character, reference is made to 55 Tex., 452. There also will be found the doctrine here held to be stare decisis,--that though the superior title remains with the vendor of land until the purchase money is paid, the right in the vendor is not assignable with the debt.

Chas. A. Jennings and Clark & Dyer, for plaintiff in error.

Herring & Kelley, for defendant in error.

WALKER, P. J. COM. APP.

This cause has twice before been considered on appeal to the supreme court; on the first appeal it was submitted to the decision of the commissioners of appeals at the Austin term in 1880, and in 1881, on the appeal of Mrs. Cassaday, it was determined in the supreme court. See Cassaday v. Frankland, 55 Tex., 452. The charge given by the court plainly indicates that it was given with direct reference to the decision and the opinion rendered by the supreme court in the case above cited, upon the decisive issues then before the court upon the evidence developed on the trial. It is manifest that the questions to be decided and determined on the trial had been determined on the last appeal in this case, and that that decision was applicable to the evidence before the jury on the last trial, and that the law of the case which was applicable on the former trial was equally so on the last trial.

The record shows that the pleadings had undergone no change; the issues of law and fact were identically the same; and it is stated without contradiction in the brief of counsel for defendant in error, that “on this trial the statement of facts agreed to and approved by the court on the second trial was used instead of depositions and witnesses; and upon comparison will be found to be identical.” The charge of the court, too, implies that the case made by the evidence on the last trial was substantially, at least, the same as that upon which the supreme court acted on the second appeal. 55 Tex., supra.

The charge given by the court, in effect, was decisive of the case; it directed the jury to find a verdict for the appellee; the giving of which is thus assigned as error by the plaintiff in error:

“The court erred in charging the jury that the legal effect of the deed from Frankland and Terry, trustees, to John A. Wharton, for the land in controversy, dated March 6, 1855, and the mortgage and notes executed on said date by said Wharton to Ambrose Lanfear, passed the title to said lands out of said Frankland and Terry, and out of the estate of said R. P. Jones, and vested the same in John A. Wharton, and that the legal effect of the deeds from the heirs of Wharton down to the defendant, all of which, together with the documentary evidence above mentioned, admitted to be in evidence to the jury, passed the title to said tracts of land, and vested the same in defendant--so held by the supreme court,--and you will, therefore, return a verdict for the defendant.”

This assignment correctly embodies the entire charge that was given. The plaintiff in error asked eight several instructions embracing mainly and substantially the legal questions and propositions which were involved in the case on the second appeal; all of which were refused. The refusal of the court to give which is assigned as error.

The defendant in error, as a full answer to each and every proposition of the plaintiff in error, submits the counter proposition that “ stare decisis can be successfully invoked and confidently relied upon, when, upon the same statement of facts, the same decision has been twice made by a court of last resort,” referring to the decision made by the commission of appeals, and Mary B. Cassaday v. C. C. Frankland, 55 Tex., 452, decided by the supreme court, opinion by Judge Quinan of the commission of appeals, adopted by the supreme court; and citing as authority Wells on Res Adjudicata and Stare Decisis, secs. 613, 614 et seq.;Burns v. Ledbetter, 56 Tex., 283.

The statement of facts contained in the record before us contains nothing to rebut the inference that the evidence was substantially the same as that which the statement of the case and the opinion imports, contained in the report of this case in 55 Texas. The opinion of Judge Quinan, read in connection with the reporter's statement of the same, would be as applicable to the evidence in this record as it was to the case when decided by that opinion; and we might well infer that the facts developed on both trials were substantially the same, and that that decision embraced all the material questions presented herein under the evidence. The court below, it appears from the charge, so regarded it. That court had before it the entire record of the proceedings had in the cause at every preceding trial, together with the mandates and opinions delivered by the appellate tribunals which had acted on the preceding appeals, and with that data before the court, it must be presumed, in the absence of anything to countervail the conclusion, that the interpretation of the judge in respect to what the supreme court had held upon the case as developed to the court and jury under the evidence, was warranted by a comparison by himself of the evidence in both trials.

From these considerations, we think, it may be assumed that the facts of the case were substantially the same on both trials, and if they were otherwise, it was incumbent on the plaintiff in error to have caused the record, in some appropriate manner, to show wherein the difference consisted, as for instance in the statement of facts, by bill of exception, or in the motion for new trial. There is nothing in the record to negative the presumption that under the same issues on two several trials that the evidence would be substantially the same, unless circumstances existed which would rebut such an inference, especially where the court, having the whole proceedings before it, acted upon that hypothesis, without question being made as to the correctness of such an assumption.

Recurring to the rule, stare decisis, relied on by the defendant in error, the general rule is thus stated by Wells in his treatise on Res Adjudicata and Stare Decisis, sec. 613: “It is a well settled principle that the questions of law decided on appeal to a court of ultimate resort must govern the case in the same court, and the trial court, through all subsequent stages of the proceedings, and will seldom be reconsidered or reversed, even if they appear to be erroneous.”

The application of this rule, however, contemplates that the facts on the second appeal shall be substantially the same, or rather, perhaps, that they shall not be such as to affect materially the legal questions involved under the first appeal.

The general rule as quoted from Wells on Res Adjudicata and Stare Decisis, it will be noticed, qualifies the universality of its application by the statement that the court of ultimate resort “will seldom” reconsider or reverse its previous decision in the same cause, even when it appears to the court to have been erroneously decided; thus stated, it would seem that the rule which has been generally accepted as unquestionable, goes at least to the extent that only in exceptional cases will the court exercise its discretion in deviating from its ordinary application.

The rule under consideration is laid down and followed, it would seem, in some of the states without any qualification whatever, and even inexorably applied in cases in which the former decision is admitted to have been “in abrogation of one of the plainest principles of law.” See Wells on Res. Adjudicata, sec. 621, citing and quoting from Dewey v. Gray, 2 Cal., 377. The ground stated by the judge delivering the opinion being that “The decision having been made in this case, it has become the law of the case, and is not now the subject of revision.”

In Vermont the rule is recognized and followed with undeviating uniformity in its application to all appeals which come within it. In the case of Stacy v. R. R., 32 Vt., 552, which was presented with a different statement of facts, but, as the court held, without any substantial difference, the opinion said: “The rule has been long established in this state, often declared from the bench, and, we believe, uniformly adhered to, that in the same cause this court will not reverse or revise their former decisions…. And whatever views the different members of this court may...