Lederer v. Real Estate Title Insurance & Trust Co. of Philadelphia

• Decision Date: 16 June 1921
• Docket Number: 2648.
• Court: U.S. Court of Appeals — Third Circuit
• Parties: LEDERER, Collector of Internal Revenue. v. REAL ESTATE TITLE INS. & TRUST CO. OF PHILADELPHIA.

273 F. 933

LEDERER, Collector of Internal Revenue. v. REAL ESTATE TITLE INS. & TRUST CO. OF PHILADELPHIA.

No. 2648.

United States Court of Appeals, Third Circuit.

June 16, 1921

Gordon Auchincloss, of New York City, for plaintiff in error.

Maurice Bower Saul, of Philadelphia, Pa., for defendant in error.

Before WOOLLEY and DAVIS, Circuit Judges, and MORRIS, District Judge.

MORRIS District Judge.

This is the same case that was before us at the October term, 1919. Real Estate Title Insurance & Trust Co. v. Lederer, 263 F. 667. Judgment against the Trust Company, the plaintiff below, following a compulsory nonsuit, was then reversed. A new trial has been had resulting in a verdict and judgment in favor of the Trust Company. The defendant, Lederer, is plaintiff in this writ.

The questions decided upon the first writ of error are no longer open, for it is well settled that matters once considered and decided by an appellate court constitute the law of the case and will not be re-examined upon a subsequent writ of error. Consequently we have now to consider only whether the present judgment was had in due pursuance of the previous opinion and mandate of this court. United States v. Camou, 184 U.S. 572, 22 Sup.Ct. 515, 46 L.Ed. 694; Supervisors v Kennicott, 94 U.S. 498, 24 L.Ed. 260; Roberts v Cooper, 20 How. 467, 481, 15 L.Ed. 969. Minerals Separation v. Miami Copper Co. (C.C.A.) 269 F. 265, 269. The evidence produced at the second trial was substantially the same as that offered at the first. An examination of the record discloses that the trial judge carefully followed the course pointed out in our former opinion, both in his rulings during the trial and in the charge to the jury. Numerous errors in the court's charge and in the admission of evidence are alleged, but save one, the assignments supported by proper exceptions merely present anew matters heretofore decided by us.

The assignment presenting the question not heretofore examined is based upon the admission, over the objection of the defendant, of the testimony given at the first trial by a witness absent from the second by reason of paralysis. The evidence so received was objected to at the trial upon the sole ground 'that there is better evidence available ' That objection is not here pressed, but, in its stead the defendant now urges that the testimony was incompetent by reason of section 861 of the Revised Statutes of the United States (Comp. St. Sec. 1468). This objection comes too late here, and will not be considered, for it is an established rule of law that when a party objects to the admission of...