Hunter v. Porter

• Decision Date: 08 July 1904
• Citation: 77 P. 439,10 Idaho 86
• Parties: HUNTER v. PORTER
• Court: Idaho Supreme Court

77 P. 439

10 Idaho 86

HUNTER v. PORTER

Supreme Court of Idaho

July 8, 1904

Petition denied.

OPINION

PER CURIAM.

We devoted a great deal of time to an examination and investigation of the questions involved in this case before the writing of the original opinion, but the evident time and labor counsel for appellant has given to the preparation of a petition has induced us to again consider the matters complained of in the petition. Such further examination and discussion convinces us of the correctness of the conclusion first reached. Complaint is made in the petition that the principal point decided was upon an error committed in appellant's favor rather than against him. This is only partially true. Upon consideration of the case we found that the judgment against defendant on plaintiff's allegation of unlawful detainer was sustained by the evidence and was properly rendered and entered; at the same time we found that error was committed against defendant wherein the court found that the lease contained no implied covenant of fitness of the demised premises. Entertaining these views we could not reverse the judgment in unlawful detainer against defendant. To grant a new trial upon defendant's cross-complaint and the answers thereto would afford him no more relief than we have granted him. Since the case was not properly tried in the first instance on a cross-complaint or counterclaim, it could not properly be so tried upon a new trial. Counsel complains of the following sentence contained in the opinion: "If after an examination of the many errors assigned by appellant both as to the constructions of the lessor's convenants contained in the lease and the introduction of evidence upon the cross-complaint, we should find error and reverse the judgment and remand the case for a new trial, this question might then be raised by the plaintiff, and the defendant would be in a worse position than he will be after our having settled this issue." That language was intentionally used and expresses our view. When a new trial is granted it is done for all purposes. A party who seeks and obtains a new trial cannot avail himself of the chance of gaining more without incurring the hazard of getting less than upon the former trial. This is true as to all questions of both law and fact not directly passed upon by the appellate court on the appeal. The doctrine of "law of the case" extends only to the questions...