Monaghan's Estate, In re
Decision Date | 19 January 1951 |
Docket Number | 5099,Nos. 5098,s. 5098 |
Citation | 71 Ariz. 334,227 P.2d 227 |
Parties | In re MONAGHAN'S ESTATE. MONAGHAN v. KENNERDELL. |
Court | Arizona Supreme Court |
H. S. McCluskey, of Phoenix, for appellant.
Wallace W. Clark, of Phoenix, for appellee.
On July 15, 1950, this court handed down the second of two opinions in the above entitled matter. The first opinion, In re Monaghan's Estate is reported in 65 Ariz. 9, 173 P.2d 107; the second, in 70 Ariz. 349, 220 P.2d 726. Subsequent to the second opinion appellant filed this motion for rehearing. It is now contended that the second opinion should be set aside on two grounds: (1) that it violates the rule of 'law of the case' as laid down in the first opinion; and (2) that the second opinion when compared with the first leaves the law in an ambiguous and uncertain state.
We consider primarily the first objection and, if it is well taken, the court need go no further. What is meant by the phrase 'law of the case?' The court first discussed it in Snyder v. Pima County, 6 Ariz. 41, 53 P. 6, in the following language: * * *'
The same rule is stated in Commercial Credit Co. v. Street, 37 Ariz. 204, 291 P. 1003, 1004, quoting 4 C.J., Sec. 3075, p. 1093: See, also, 5 C.J.S., Appeal and Error, § 1821.
There are many other cases in Arizona upholding the same rule. On the other hand some states follow the rule that when the appellate court on the second appeal is convinced the first decision is erroneous the 'law of the case' rule is not inflexible. And where the court expressly reserves its decision on any point raised in the first appeal it is not conclusive as to those matters reserved. Welton v. Cook, 61 Cal. 481. Nor is it conclusive on points where the first decision is ambiguous and conflicting. Gage v. Downey, 94 Cal. 241, 29 P. 635; Moore v. Barclay, 23 Ala. 739, 3 Am.Jur., Appeal and Error, Sec. 989.
It will be seen that two important principles are in conflict. The first is that a judgment clearly erroneous should not stand. The other is that at some time there must be an end to litigation and a final decision that parties can rely on. The reason for this latter principle is discussed in McGovern v. Kraus, 200 Wis. 64, 227 N.W. 300, 67 A.L.R. 1381. After a careful consideration of the matter we are of the opinion that in the long run better results will be obtained by upholding the rule, so long the law of Arizona, that, except on matters not expressly reserved or when the previous decision is ambiguous and uncertain, the court should continue to follow its many decision applying the rule of law of the case as res judicata.
We are of the opinion that the first decision In re Monaghan's Estate, supra, is subject to both exceptions: first, as having at least one of the most important questions involved in the instant appeal expressly reserved in that case; and, second as being in many points ambiguous and uncertain. We therefore consider the legal points involved anew.
There were in substance three questions raised by the second appeal and determined by the court in its opinion. They concerned various items of expense which were approved by the trial court and the questions involved whether these items should be charged prorata against the separate interests of decedent and of the surviving spouse in the entire community estate, or whether they should be charged entirely against the interest of the deceased.
As to all but one of these items, appellant is in no position to complain for the decision thereon, whether right or wrong, was in her favor. Thus, the only remaining item involved raises a question pertaining to the administrator's commission and the attorney fees, incurred partly at...
To continue reading
Request your trial-
State v. King
... ... Monaghan's Estate, 71 Ariz. 334, 336, 227 P.2d 227, 228 (1951) (citations omitted); see also 5 Am.Jur.2d Appeal and Error § 744 (1962); Annotation, Erroneous ... ...
-
State v. Johnson
... ... same case, provided the facts and issues are substantially the same as those on which the first decision rested ), quoting In re Monaghan's Estate, 71 Ariz. 334, 336, 227 P.2d 227, 228 (1951). The state is correct: Johnson made the same argument in his first appeal, this court rejected it, and ... ...
-
Cagle v. Carlson
... ... We disagree ... In the case of In Re Monaghan's Estate, 71 Ariz. 334, 227 P.2d 227 (1951), our supreme court addressed the effect a prior appellate decision has on subsequent determinations in the same ... ...
- State v. Dunbar