Stoudenmire v. De Bardelaben

• Decision Date: 20 July 1888
• Parties: STOUDENMIRE v. DE BARDELABEN.
• Court: Alabama Supreme Court

4 So. 723

85 Ala. 85

STOUDENMIRE v. DE BARDELABEN.

Supreme Court of Alabama

July 20, 1888

Appeal from chancery court, Autauga county; S. K. MCSPADDEN Chancellor.

Bill in equity by J. D. Stoudenmire against Warren De Bardelaben, to compel an account for waste. Decree for plaintiff for $1,621.85, from which he appeals.

Brickell, Semple & Gunter, for appellant.

Watts & Son, for appellee.

CLOPTON J.

These are cross-appeals. J. D. Stoudenmire, who is complainant in the bill, makes a preliminary motion to strike out the assignments of error relating to the decree of February 8 1886, assigned by defendant. The contestation on the motion is: Complainant insists that the decree is final, and, having been affirmed at a former term on appeal by the defendant, it is beyond the power of the court to open and reconsider it on this appeal; and defendant contends that, under the statute it is the duty of the court to declare the law of the case without regard to any former ruling, or to the time when such ruling was made. The decree of February, 1886, affirmed that complainant was entitled to the equity he seeks by the bill. It settled the equities between the parties, and there only remained a reference by the register for the ascertainment of the amount. By all our decisions the decree was final, and would support an appeal. Garner v. Prewitt, 32 Ala. 13; Jones v. Wilson, 54 Ala. 50. More than one year had elapsed after its rendition before the present appeal was sued out; an appeal from the decree was barred. Under our uniform ruling and practice in such cases, the assignments predicated on alleged error in the decree of February, 1886, must be stricken out, unless the statute invoked operates the abrogation or modification of such rule in cases where there has been a ruling on appeal from a final decree, and the case is again brought before the court by a subsequent appeal from the decree rendered on ulterior proceedings, and for the adjustment of incidental or dependent matters. Bradford v. Bradley, 37 Ala. 453; May v. Green, 75 Ala. 162. Section 683 a, Code 1886, declares: "The supreme court in deciding each case, when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion at that time, is law, without any regard to such former ruling of the law by it." The manifest purpose of the statute is to abrogate the pre-existing rule, that the principles decided and the rulings made on appeal, however erroneous, were the law of the particular case, and governed the inferior court in all subsequent proceedings, and the appellate court on a subsequent appeal in the same case. Moulton v. Reid, 54 Ala. 320. But this is the full scope and operation of the statute, when construed in connection with other statutes regulating appeals. It was not intended to repeal pro tanto the statute of limitations restricting the right of appeal, nor to indirectly give the benefit of appeal, when the right is barred, by authorizing assignments of error purely retrospective in their effect and relation; nor to abrogate the well-established rule that a judgment of affirmance is beyond the power of this court after the expiration of the term when rendered, unless suspended by a proper and seasonable application for rehearing. By its terms, the statute only contemplated a case properly brought before the court for decision by appeal or other appropriate supervisory proceeding, and only has operation when the case thus brought before the court a second time involves the same principles and questions decided on the former appeal, and devolves on the court the necessity and duty to reconsider and affirm or overrule its former rulings. The defendant appealed from the decree of February, 1886, and it was affirmed by this court. 2 South. Rep. 488, (May 10, 1887.) The statute was not designed to impose on the court the duty ex mero motu to revise its former rulings, when the same rulings are not presented nor involved in the second appeal; and has no operation when a final decree on appeal has been affirmed, the term of the court has expired, and more than one year has elapsed from the rendition of such decree before...