Holcomb v. McClure, 38737
| Decision Date | 18 May 1953 |
| Docket Number | No. 38737,38737 |
| Citation | 64 So.2d 689,217 Miss. 617 |
| Parties | HOLCOMB et ux. v. McCLURE. |
| Court | Mississippi Supreme Court |
Ben Stevens, Hattiesburg, L. Barrett Jones, Jackson, S. H. Long, Tupelo, for appellants.
C. R. Bolton, Tupelo, for appellee.
This is the second appearance of this case in this Court. See Holcomb v. McClure, 211 Miss. 849, 52 So.2d 922.
As the facts in the case are rather fully set forth in the opinion on the first appeal, they will not be shown in detail here. It is sufficient to say that on March 27, 1946, appellants conveyed to appellee by warranty deed a certain parcel of land in the City of Tupelo, lying in the northwest intersection of Jackson Street on the south side and Madison Street on the east side. The consideration was $7,500 in cash. The point of beginning in the description was the southeast corner of the southwest quarter of section 30, township 9, range 6 east. The lot was supposed to have a frontage of 225 feet on Madison Street by 320 feet on Jackson Street. Actually, the frontage was only 180 feet on Madison Street, so that there was a shortage of 45 feet on the north side of the parcel of land. The deed excepted that portion of the lot 'now being used as a street, Jackson and Madison, either or both.' Appellee relied on a survey which showed that the south line of said section 30 was in conformity with the north line of Jackson Street. Appellants relied on a long established understanding in the community that the south line of said section was approximately 45 feet south of the north line of Jackson Street. Appellee sued appellants for breach of warranty on account of the 45 foot shortage.
When the case was tried the first time, the chancellor rendered a decree in favor of appellee and allowed appellee damages for breach of the warranty in the deed on account of said shortage. On the first appeal, the cause was affirmed on liability and remanded to the chancery court for a new trial on the issue of damages alone, the holding of the Court being that the values determining damages must be proved as of the time of the deed. (See opinion on first appeal.) When the case was tried the second, time, the court below heard the case only on the matter of damages and entered a decree for appellee in the sum of $2,000 plus interest at six per cent per annum from the date of the deed.
On this second appeal, the principal proposition argued by appellants is that the prior decision of this Court in this case was completely erroneous and should be overruled, and that said decision should not be applied as the law of the case. Appellants rely upon Brewer v. Browning, 115 Miss. 358, 76 So. 267, 519 L.R.A.1918F, 1185, and upon the proposition that this Court has the power to decline to follow its decision made on the first appeal of a case and should so decline if the first decision was wrong. Appellee relies on the strict doctrine of the law of the case, and also argues that the decision on the first appeal establishing the liability of appellants was correct.
'The decisions agree that as a general rule, when an appellate court passes upon a question and remands the case for further proceedings, the question there settled becomes the 'law of the case' upon a subsequent appeal, provided the same facts and issues which were determined in the previous appeal are involved in the second appeal.' 3 Am.Jur., Appeal and Error, Sec. 985, p. 541. It is further stated, however, that '* * * there has been a considerable tendency, and probably a growing one, to make an exception where it clearly appears that the former decision was erroneous; and, as a consequence, there is respectable authority to the effect that a decision rendered on one appeal, if clearly erroneous, is not conclusive upon the court upon a subsequent appeal of the same case.' Ibid., Sec. 990, p. 547.
When the Brewer case, supra, was decided, over the vigorous dissent of two justices, this Court aligned itself with those courts referred to in the latter quotation from American Jurisprudence. In that case, the Court declined to apply the law as determined in the first appeal, and, in the opinion, quoted from authorities to the effect that, although ordinarily a question considered and determined in an appeal is deemed to be settled and not open to reexamination on a second appeal, this rule is not inflexible, and if the prior decision is 'palpably erroneous' it is competent for the Court to correct it on the second appeal. The Court summarized its holding in this language: 'We think the rule of 'the law of the case' is a good rule of practice, and should be followed, except in rare cases where the decision is manifestly and palpably erroneous and to follow it would result in grave injustice being done.' [115 Miss. 358, 76 So. 270.]
In Pennington v. Purcell, 155 Miss. 554, 125 So. 79, 81, the Court in applying the 'law of the case' said of Brewer v. Browning that the Court 'there recognized the general rule that ordinarily a question considered and determined in a former appeal is deemed to be settled, and is not open for re-examination or reconsideration on a second appeal.' It was commented that there must be an end to litigation, and that when the principles of a case have been announced and the case remanded to the lower court, then this Court should enforce the general rule, that is, apply the law of the case, 'unless the mistake of the court in its former opinion is so palpable as to amount to a miscarriage of justice.' In the case of Stone v. Reichman-Crosby Co., Miss., 43 So.2d 184, the Court used language indicating that the law of the case is absolutely binding, but it was found in that case that the former decision was correct, and the Brewer case was not mentioned.
Without further discussion of the cases, we will say that the rule in this State is that the law of the case as established on a first appeal will normally and ordinarily control on later trials and appeals of the same case involving the same issues and facts. The doctrine of the Brewer case is that the Court has the power to refuse to apply the law of the case if it is found to have been erroneously established on the first appeal, but that the Court will not undertake to do so except in rare and exceptional cases where the first decision was palpably and obviously wrong and results in...
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