Steinfeld v. Zeckendorf

Decision Date28 February 1914
Docket NumberCivil 1347
Citation15 Ariz. 335,138 P. 1044
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Pima. Fred Sutter, Judge. Appeals dismissed.

The facts are stated in the opinion.

Mr Francis J. Heney, Mr. Eugene S. Ives and Mr. S. L. Kingan for Appellants.

Mr Frank H. Hereford and Mr. Edwin A. Meserve, for Appellees.

Mr. S M. Franklin, for Receiver.



The history of this case may be found in 10 Ariz. 221, 86 P. 7; 11 Ariz. 192, 89 P. 496; 12 Ariz. 245, 100 P. 784; and 225 U.S. 445, 56 L.Ed. 1156, 32 S.Ct. 728. It originated in the territorial days in the district court of Pima county, where it was twice tried. Two appeals were prosecuted from judgments of the trial court to the supreme court of the territory. From the last judgment of the latter court both parties appealed to the supreme court of the United States. The "statement of the facts of the case in the nature of a special verdict" was made and certified to the United States supreme court by the territorial supreme court, as provided in section 702, volume 4, Fed. Stats. Ann., 18 Stats. at Large, 27, of which statement the court, at page 448 of 225 U.S., at page 729 of 32 S.Ct. (56 L.Ed. 1156), said: "The supreme court of the territory made elaborate findings of fact, adopting the findings of the district court and making certain findings of its own. So far as necessary to determine the case as we view it, the findings may be summarized as follows. . . ." That court further said, at page 449 of 225 U.S., at page 730 of 32 S.Ct. (56 L.Ed. 1156): "The findings of fact sent up to us, and which must alone be the basis of our judgment, show," etc.

The mandate from the supreme court of the United States is "that such execution and further proceedings be had in said cause in conformity with the opinion and judgment of this court as, according to right and justice and the laws of the United States, ought to be had, the said appeals notwithstanding."

The opinion of the supreme court directs that "the case be remanded to the supreme court of the state of Arizona, as successor of the territorial supreme court, for such further proceedings as may not be inconsistent with the opinion of this court." This court remanded the case to the superior court of Pima county, Arizona, with directions "that such action be had in said cause as by the mandate of said supreme court of the United States may be proper said appeal notwithstanding."

The present appeal is from the judgment of the superior court of Pima county, entered upon the mandates above set forth. We are asked to dismiss the appeals on the ground and for the reason that the judgment appealed from is in accordance with and in strict conformity to the mandates of the supreme courts of the United States and the state of Arizona.

The appellants insist that, under the terms of the mandates, it was the duty of the trial court to give them a new trial -- that is, to hear other and additional evidence on certain features of the case. The court took the view that, under the mandates, it was powerless to open up the case as for a trial de novo, and proceeded to enter judgment upon the record as made and certified to the United States supreme court and in conformity with the decision of that court as contained in its opinion. It seems to us that the court did the only thing it was authorized to do. We cannot construe the mandate as permitting or directing a new trial of the issues that were submitted to and decided by the supreme court. The court of first instance was as much bound by the findings of fact in entering its judgment as the supreme court in determining the law questions presented to it.

The decisions are numerous to the effect that the findings of fact by the supreme court of a territory are conclusive and may not be reviewed on appeal to the supreme court of the United States. That court is limited to a review of questions of law only. Eilers v. Boatman, 111 U.S. 356, 28 L.Ed. 454, 4 S.Ct. 432; Idaho etc. Land Imp. Co. v. Bradbury, 132 U.S. 509, 33 L.Ed. 435, 10 S.Ct. 177; Zeckendorf v. Johnson, 123 U.S. 617, 31 L.Ed. 277, 8 S.Ct. 261; Haws v. Victoria Copper Co., 160 U.S. 303, 40 L.Ed. 436, 16 S.Ct. 282; Gildersleeve v. N.M.M. Co., 161 U.S. 573, 40 L.Ed. 812, 16 S.Ct. 663; Bear Lake etc. v. Garland, 164 U.S. 1, 41 L.Ed. 327, 17 S.Ct. 7; Eagle M. & I. Co. v. Hamilton, 218 U.S. 513, 54 L.Ed. 1131, 31 S.Ct. 27.

It was said by the circuit court of appeals in Haley v. Kilpatrick, 104 F. 647, 44 C.C.A. 102: "The law of the case was settled in the opinion of the court when the case was first here. It remains the law of the case in this court, the decree of the state court in another and different case to the contrary notwithstanding. Mathews v. Bank, 100 F. 393, 40 C.C.A. 444. It is well settled that a second appeal or writ of error in the same case only brings up for review the proceedings of the trial court subsequent to the mandate, and does not authorize a reconsideration of any question either of law or fact which was considered and determined on the first appeal or writ of error. Bridge Co. v. Stewart, 3 How. 413, 425, 11 L.Ed. 658; Sizer v. Many, 16 How. 98, 14 L.Ed. 861; Tyler v. Magwire, 17 Wall. 253, 283, 21 L.Ed. 576; Phelan v. City and County of San Francisco, 20 Cal. 39, 44; Leese v. Clark, 20 Cal. 388."

In Re Potts, 166 U.S. 263, 41 L.Ed. 994, 17 S.Ct. 520, the court said: "When the merits of a case have been once decided by this court on appeal, the circuit court has no authority, without express leave of this court, to grant a new trial, a rehearing, or a review or to permit new defenses on the merits to be introduced by amendment of the answer."

In Re Sanford Fork & Tool Co., 160 U.S. 247, 40 L.Ed. 414, 16 S.Ct. 291, this language was used: "When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled."

In the opinion of Gaines v. Rugg, 148 U.S. 228, 239, 13 S.Ct. 611, 615, 37 L.Ed. 432, the very language of the mandate in this case is discussed: "It is contended for the respondent that the decree of this court was one absolutely reversing the decree of the circuit court; that the circuit court had a right, therefore, to proceed in the case, in the language of the mandate, not merely 'in conformity with the opinion and decree of this court,' but also 'according to right and justice'; and that, therefore, it had authority to permit the defendant Rugg to take further testimony in support of his exceptions, 'by way of defense to the title to the lands in controversy,' and to set down the cause 'upon the issues formed by the pleadings and exceptions aforesaid as to the title to said lands'; in other words, that the whole controversy was to be reopened as if it had never been passed upon by this court as to the title and possession of the land. This cannot be allowed, and is not in accordance with the opinion and mandate of this court."

The pleadings of the parties to this case presented squarely to the court for decision the question as to whether the property involved in the litigation belonged to the Silver Bell Company or to Steinfeld, and, upon the findings of fact or "statement of the facts of the case" before it, the supreme court of the United States determined as question of law the issue against Steinfeld and in favor of the Silver Bell Company. An inspection of the judgment appealed from discloses that it is in accordance with the opinion and judgment of the supreme court, in that it is against Steinfeld and in favor of the Silver Bell Company for the amount of money and the property appropriated by Steinfeld to his own use, less certain allowances and credits given to Steinfeld, with the further general provision that the receiver for the Silver Bell Company shall pay to Steinfeld all sums of money heretofore necessarily paid by him for and on account of the Silver Bell Company after an account of same has been presented, audited, and approved by the court.

The judgment also allows the Silver Bell Company interest at six per cent per annum on the amounts recovered, from the date of the wrongful conversion of such sums by Steinfeld, and of this he complains. We think this was "according to...

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