Pinkham v. Pinkham
| Decision Date | 03 October 1900 |
| Docket Number | 11,168 |
| Citation | 83 N.W. 837,60 Neb. 600 |
| Parties | MARTHA J. PINKHAM v. JOHN H. PINKHAM, APPELLEE, AND EMMA E. RYAN ET AL. APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Otoe county. Heard below before RAMSEY, J. Affirmed in part.
Cause remanded, with directions. Decree affirmed in part.
Ricketts & Ricketts and H. H. Wilson, for appellants.
J. C Watson, F. E. Brown and Frank Irvine, contra.
The present controversy arises over the title to certain real estate claimed by appellants, as heirs, and by the appellee as grantee of one Calvin Pinkham, now deceased. The validity of the instrument under which appellee claims title is challenged on the ground of fraud and undue means in its procurement, and it is also averred in the petition that it was executed in anticipation of the death of the grantor as a final disposition of his property, and that, after recovery he sought to revoke and cancel the same, but was prevented from so doing through fear of bodily harm at the hands of the grantee. The case has once been before this court, the opinion then rendered being found in Pinkham v. Pinkham, 55 Neb. 729, 76 N.W. 411. It is there held that the instrument under which appellee's right to the land is to be determined, although in form a deed, which by its terms was to operate only after the death of the grantor, was testamentary in character, and passed no present estate in the premises therein described. The decree of the trial court, quieting title in appellee, was reversed, and the cause remanded for further proceedings, with directions to proceed according to law. After the case was remanded, appellee applied for and obtained leave to amend his answer so as to plead mistake and error in the manner of drawing the deed, it being pleaded in the amendment that the recital, "This deed is to take effect and be in full force from and after my death," should read according to the true intention and desire of the parties, so as to reserve to the grantor only a life estate in said premises; and asked for a reformation of the instrument by a correction of the alleged mistake, so as to make it conform to the desire and intention of the parties. Issues were joined under the amended pleadings, and a trial thereof resulted in a second decree in favor of appellee, reforming the instrument as prayed for, and quieting the title in the said John H. Pinkham, appellee. Appellants claim that the character of the instrument under which appellee claims was litigated in the first trial, and that the opinion rendered in this court on the first appeal, construing the instrument as testamentary in character, has become "the law of the case," thereby preventing further litigation regarding the said instrument.
It is very true that a decision by the appellate court upon any question presented to it in reviewing the proceedings of the trial court ordinarily will not be re-examined, and becomes the law of the case, binding upon the court and the parties in the further litigation of the case, from the consequences of which the court can not depart, nor the parties relieve themselves. Omaha Life Ass'n v. Kettenbach, 55 Neb. 330, 75 N.W. 827; O'Donohue v. Hendrix, 17 Neb. 287, 22 N.W. 548; Hiatt v. Brooks, 17 Neb. 33, 22 N.W. 73. It is not, however, we assume, in the present case, a question as to what the rule is, so much as to whether it is applicable to the point under consideration. On the first appeal it was determined that the deed, in the form in which it was written, was testamentary in character, and passed no present estate in the land. That question has been adjudicated, and will not be, nor is there any request to have it, further examined into or overturned.
Can it be said that the question as to the right of appellee to have a reformation of the instrument under which he claims, has been determined in the opinion first rendered? We think not. This proposition is entirely different from the construction of the instrument according to the wording then on the face of it. It is incontrovertible that in the first opinion the question under consideration was as to the legal effect of the instrument in its present form, while in the present hearing we are confronted with the proposition of correcting an alleged mistake, an entirely separate and independent proposition from that first considered. The latter question brings into the case an element not heretofore considered or determined, and the doctrine of the law of the case would therefore seem to be inapplicable. It is, however, urged that, the character of the instrument being in issue in the first trial, the defendant was required to set forth his defense with respect to the alleged mistake, which, it is admitted, he might have done on that trial, and that, because of his failure so to do, the opinion on the first appeal has rendered the character of the instrument res adjudicata. We are cited to a number of cases to support the rule, that all defenses that might have been interposed will be deemed to have been adjudicated in the trial of a cause, and are, therefore, res adjudicata, and invulnerable against collateral attack. We regard the authorities cited as in point only in cases that have been finally adjudicated, but not as applicable to different steps in the proceedings of the same action. If carried to its logical conclusion, the proposition advanced would prevent amendments in the proceedings of a case in any stage thereof, after a point in controversy had been ruled upon. It is to be observed that the amendment made is consistent with the position of the appellee during all the proceedings had in the case, nor does it conflict with, or seek to overturn, the conclusions reached in the first opinion filed. He has been, during the entire proceedings, claiming the land in controversy by virtue of the instrument as a deed of conveyance of the land, and not as a testamentary writing of the grantor. When this court found that, by its wording, although in form a deed, it was testamentary in character, and passed no present estate, the appellee alleged mistake in its drafting, and prayed for a reformation to conform to the alleged intention of the parties, such action being in harmony with his contention during the whole course of litigation. We regard the propositions advanced with respect to the law of the case, and res adjudicata, as being subordinate to, and hinging upon the more important one of whether the appellee may properly amend his answer in the manner sought, and at the time the amendment was made. If, under a proper construction of the rules of procedure, amendments to pleadings are permissible after a case has been reversed on appeal, and remanded for further proceedings, it would seem that, in the present instance, appellee might rightfully amend his pleading, and would not be concluded by the prior litigation and the opinion rendered as to matters brought in issue by the amendment.
It is urged that, the case being remanded "for further proceedings," it should be proceeded with only with a view of determining the rights of the parties litigant under the instrument as construed in the opinion, and that it was error to permit an amendment of the pleadings and relitigate the issues as amended. Our conception of the case is that it was remanded generally, and without directions, to be proceeded with in any particular manner. The direction was "to proceed according to law." Had there been directions to proceed in a particular manner therein specified, doubtless no further proceedings inconsistent with the directions in the mandate could be permitted. The appellee and all parties to the action would be precluded from pursuing a different course than that pointed out, and the only remedy would have been by a motion for a rehearing and modification of the opinion. No special directions being given, the parties, we think, were justified in regarding, as they did, the remanding of the case as being general, there to be proceeded with according to the established rules of procedure, to be determined by the trial court, in the exercise of a sound discretion in it vested. It is a firmly established rule of practice in this and other states to permit amendments not inconsistent with the opinion of the supreme court, when a judgment in an action in equity has been reversed on appeal and remanded generally to the district court for further proceedings. Troup v Horbach, 57 Neb. 644, 78 N.W. 286; Badger Lumber Co. v. Holmes, 55 Neb. 473, 76 N.W. 174; Cahn v. Tootle, 48 P. 919; Heidt v. Minor, 45 P. 700; Interstate Savings & Loan Ass'n v. Knapp, 55 P. 931; Jennings v. Parr, 32 S.E. 73. In Badger Lumber Co. v. Holmes, supra, it is held: "Where a decree in favor of plaintiff, foreclosing a mechanic's lien, is reversed on an appeal by the defendants, and the cause remanded to the trial court for further proceedings, the situation of the plaintiff is precisely the same as if his rights had never been tried." Says SULLIVAN, J. in the opinion in Troup v. Horbach, supra: Applying the foregoing rules to the case at bar, we perceive no meritorious objection to the amendment allowed. The appellee in nowise seeks to change his position, or invoke a remedy inconsistent with his former attitude. His contention has been all along, as we...
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