State v. Paxton

• Decision Date: 04 June 1902
• Docket Number: 12,217
• Citation: 90 N.W. 983,65 Neb. 110
• Parties: STATE OF NEBRASKA v. WILLIAM A. PAXTON ET AL
• Court: Nebraska Supreme Court

90 N.W. 983

65 Neb. 110

STATE OF NEBRASKA v. WILLIAM A. PAXTON ET AL

No. 12,217

Supreme Court of Nebraska

June 4, 1902

ACTION brought by the state in the district court for Douglas county, before BAXTER, J. against William A. Paxton and others, sureties on state treasurer's bond. The state and defendants Brown, McNish and Ames, separately prosecute proceedings in error. Reversed.

REVERSED AND REMANDED.

Frank N. Prout, Attorney General, Norris Brown and William B. Rose for the state.

John C Cowin, Frank T. Ransom, Robert Ryan and Frank Irvine, contra.

John C Cowin and Robert Ryan (E. E. Brown, also for himself), for plaintiffs in error, E. E. Brown et al.

POUND, C. BARNES, C. concurs. OLDHAM, C. did not sit. HOLCOMB, J. took no part in the decision.

OPINION

POUND, C.

This cause is here for the third time. Four petitions in error are presented,--one by the state, plaintiff below, and one each by Messrs. Brown, McNish and Ames, defendants below. The several petitioners in error seek a review of the third trial of this cause, at which a verdict and judgment were had in favor of the state and adverse to said defendants Brown, McNish and Ames, and adverse to the state and in favor of the defendants Paxton, Swobe and Taylor. The general features of the case fully appear in the two prior reports. State v. Bartley, 56 Neb. 810, 77 N.W. 438; Paxton v. State, 59 Neb. 460, 81 N.W. 383. Suffice it to say in this place that the defendants Brown, McNish and Ames were among those who signed the bond in suit originally, and will be referred to hereinafter as the original sureties, while the defendants Paxton, Swobe and Taylor signed it subsequently and will be spoken of as the additional sureties.

Both the state and the defendants Paxton, Swobe and Taylor rely in large part upon the two prior decisions of this court, and invoke the rule that such prior decisions become the law of the case and are to be followed in subsequent appeals. As a general proposition, it is well settled that a decision of this court becomes the law of the case not only as to the points expressly considered in its opinion, but as to all matters necessarily involved in the judgment rendered. Home Fire Ins. Co. v. Johansen, 59 Neb. 349, 80 N.W. 1047; Nebraska Savings & Exchange Bank v. Brewster, 59 Neb. 535, 81 N.W. 441; Todd v. Houghton, 59 Neb. 538, 81 N.W. 508; Hayden v. Frederickson, 59 Neb. 141, 80 N.W. 494; Richardson Drug Co. v. Teasdall, 59 Neb. 150, 80 N.W. 488. This has been carried so far as to hold that it is not permissible for an appellate court, on a subsequent appeal of a cause, to reconsider and correct an erroneous decision made in the same case on a former appeal. Wittenberg v. Mollyneaux, 60 Neb. 583, 83 N.W. 842. And the rule has been applied to decisions upon the sufficiency of evidence, when necessarily involved in a judgment here rendered. Todd v. Houghton, supra. But it refers only to questions expressly or necessarily adjudicated; and expressions of opinion respecting matters not actually involved in the decision reached, have no binding force. Wittenberg v. Mollyncaux, supra. Hence it would seem to follow that it has not the same application where the evidence at successive trials of the same cause is so materially different as to affect the conclusions reached. An adjudication resting on a particular state of facts is not an adjudication of the effect of materially different facts. The very purpose of a new trial is to ascertain the facts of the case anew. There is no requirement that the evidence be exactly the same and to exactly the same effect as at the former trial. Consequently, where the evidence at a new trial is or may be presumed to be materially different from that at a trial already reviewed by this court, in a subsequent review it will investigate the record uninfluenced by the former decision except so far as questions of law were there adjudicated which apply equally to the evidence at each trial. Lane v. Starkey, 20 Neb. 586, 31 N.W. 238; Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N.W. 744; State v. Cass County, 60 Neb. 566, 83 N.W. 733; First Nat. Bank v. Grosshans, 61 Neb. 575, 85 N.W. 542. In the light of these principles, as the attorney general contends that the first decision in this cause, in which a judgment in favor of all the defendants was reversed, is a final and conclusive determination that the bond sued on is a valid obligation as against and binding upon all the defendants, and that the second opinion of this court requires the same conclusion, while the defendants Paxton, Swobe and Taylor urge that the second decision of this court requires their release, an examination of the issues and evidence, and the matters passed on by the court in its judgments, at the two former hearings, becomes necessary. This examination must be made from the reported opinions and the record now before us.

The first decision is reported as State v. Bartley, 56. Neb. 810. A verdict had been rendered in favor of a the defendants, and judgment thereon was reversed on two points--that two of the instructions given by the trial court permitted the jury to find or infer facts of which there was no evidence, and that the verdict, in so far as it was based on a negative finding upon the issue whether there had been a breach of the bond, was contrary to the evidence, to the instruction of the trial court and to the law. Both of these points involved solely the question whether there had been a default on the part of the principal and a breach of the conditions of the bond. The instructions complained of bore upon that issue, and the verdict was set aside because that issue had not been determined correctly. We may remark, therefore, by way of summary: None of the defenses now before us were passed on at the first hearing; as to the defendants now in the case, the sole defense was that no breach of the bond sued on had been established, or, at least, such was the only defense passed on; the judgment was reversed because the verdict on this defense was contrary to an instruction of the court and to the evidence, and because in submitting this defense to the jury the court permitted them to consider two questions upon which there was no evidence.

The second decision is reported as Paxton v. State, 59 Neb. 460, 81 N.W. 383. At the trial there under review the district court directed a verdict for the state, and judgment was rendered against all the sureties accordingly. The petition alleged that the bond in suit was delivered to the governor on January 3, 1895, and on that day filed for record in the office of the secretary of state; that the bond was afterwards returned to Bartley, the principal therein, that he might obtain the signatures of additional sureties; and that on January 9 it was again handed to the governor, who then approved it and filed it with the secretary of state. The original sureties denied that the bond was filed on January 3, and contended that they were not bound because the bond had not been accepted and approved before that date,--that being the first Thursday after the first Tuesday in January of said year,--so that, under the decision in State v. Lansing, 46 Neb. 514, 64 N.W. 1104, the office to which the principal had been elected had become absolutely vacant before the bond was delivered. As to this defense, the court held that the evidence showed conclusively that the bond was not filed in the office of the secretary of state until January 9, and did not take effect till that day that, while Bartley had forfeited the office by failing to have his bond approved and filed on or before January 3, the state could waive its right to oust him, and elect to deal with him as treasurer; that the statute as to official bonds was designed for the protection of the public and not for the benefit of the sureties, and consequently that the latter could not be heard to object that the approval and filing were not within the prescribed time. The defendant Brown contended further that the additional sureties signed without his consent, and that thereby he became released from his obligation. The evidence at the trial then under review had shown that the bond was not delivered till January 9. That being so, the court held that the written waiver hereinafter discussed gave rise to an inference that the bond had not yet been filed, and, as no officer had any right to demand additional sureties upon a state treasurer's bond after the same had been delivered and approved, the original sureties must have signed such waiver knowing, or at least believing, that the bond had not become effective. In such case, they either had notice of the alteration before delivery, or else consented to it after it was made and before delivery, and were clearly bound. The additional sureties, Paxton, Swobe and Taylor, claimed that the bond had already become effective and the principal had entered upon his office when their signatures were obtained, and that their undertaking was of no force for want of consideration. But as they signed prior to January 9, and the evidence then before the court showed that the bond was not delivered and filed and did not take effect till January 9, the defense failed. The judgment was reversed, however, because the sureties claimed further that the shortage occurred during Bartley's first term (they being bound, if at all, for his second term only), and the court directed a verdict for the state notwithstanding there was some competent evidence that the shortage, or portions thereof, took place during the first rather than the last term. NORVAL, J. dissented on points not now material, but held that the former decision, reversing a judgment in favor of the sureties, was an adjudication that the bond...