Thatcher v. Gottlieb, 329.
| Decision Date | 29 January 1894 |
| Docket Number | 329. |
| Citation | 59 F. 872 |
| Parties | THATCHER v. GOTTLIEB. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J Warner Mills, (Henry C. Dillon, on the brief,) for plaintiff in error.
R. T McNeal, (E. T. Wells and John G. Taylor, on the brief,) for defendant in error.
Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.
This case comes before us a second time on a writ of error, which was sued out this time by Thatcher, who was the defendant in error when the case was formerly before this court. The decision on the former hearing, and a full statement of the facts out of which the litigation arises, is reported in 4 U.S. App. 616, 2 C. C. A. 278, 51 F. 373. After the record had been remitted to the circuit court, and a judgment had been rendered in favor of the defendant, Gottlieb, pursuant to the mandate and opinion of this court, Thatcher, who had prevailed on the first trial in the circuit court, paid all the costs, and obtained an order vacating the last judgment in favor of the defendant, and granting to the plaintiff a new trial, pursuant to section 272 of the Colorado Code of Procedure relating to new trials in suits for the possession of real property. Another trial was then had in the circuit court, which resulted in a verdict in favor of the defendant Gottlieb. The latter verdict was returned by the jury in obedience to a peremptory instruction directing them to find for the defendant. To reverse the judgment entered on that verdict, the present writ of error is prosecuted. When the case was formerly in this court, it was brought here on a special finding of facts made by the trial judge, a jury having been waived on the first trial. After a full consideration of the facts reported in such special finding, this court held that the deed under which Gottlieb claimed title to the land in controversy constituted color of title; that the facts found and reported by the trial court showed that such color of title was 'made in good faith,' and, as a matter of law, would not warrant or justify an inference of bad faith; and, lastly, that having paid the taxes legally assessed on the premises in dispute for more than five years, under color of title, made in good faith, Gottlieb thereby became entitled to the premises, under the Colorado statute quoted in our former opinion. Gen. St. Colo. 1883, § 2187. It must be carefully borne in mind that this court cannot review the decision of a circuit court on a question of fact, in a law case, even where a waiver of a jury is filed, but can only decide as to whether the findings are adequate to support the judgment. Walker v. Miller, 59 F. 869. Therefore, the decision on the former hearing as to the question of good faith was in fact a decision that the facts reported in the former special finding would not warrant an inference of bad faith, and were insufficient in law to support such a finding. We are not disposed to recede from that position, nor could we do so, for the ruling formerly made has now become the law of the case, if the evidence on the first and last trials is substantially the same. Skillerns v. May's Ex'rs, 6 Cranch, 267; Bridge Co. v. Stewart, 3 How. 413; Barney v. Railroad Co., 117 U.S. 228, 6 S.Ct. 654; Dodge v. Gaylord, 53 Ind. 365; Trust Co. v. Coulter, (Or.) 31 P. 280; Elliott's App. Proc. § 578.
It is suggested, however, that the testimony bearing on the issue of good faith, which is incorporated in the present record differs materially from the facts reported in the special finding of the trial judge, which was contained in the former record; and, because of the alleged difference in the testimony, it is urged that the question of good faith should have been submitted to the jury on the last trial, and that the court erred in withdrawing it, and in directing a verdict for the defendant. With reference to this contention, it is quite sufficient to say that we have made a careful examination of the record, with a view of discovering, if possible, any new fact or circumstance which could fairly be regarded as giving to this feature of the case a new complexion, and we have failed to discover any such additional testimony. The evidence on which the former special findings were based was largely of a documentary and record character, and the same documentary and record evidence was adduced at the last trial. Neither do we observe any material difference between the former findings, which apparently rested on oral testimony, and the facts that were established at the last hearing by verbal testimony. The most that can fairly be said is that in some few instances the same fact or proposition is stated in the respective records in a slightly different form, and that one fact, of no special significance or importance, which is narrated in the seventh paragraph of the former special findings, does not appear to have been either proven or disproven on the last trial. Perhaps we could give no better illustration of the practical identity of the facts established on the respective trials than to allude to the fact that the learned counsel for the plaintiff in error, in attempting to show that there is a material difference in the testimony, has been compelled to place much stress on the circumstance that on the last trial the defendant showed by the testimony of his former attorney, Mr. Brown, that the latter advised the defendant to make a levy on the McCormick note, whereas on the former trial it was found by the circuit court 'that before having his execution levied on said note the defendant took the advice of his counsel as to whether the same was subject to levy and sale under execution, and was advised that it was so subject.' We confess our inability to comprehend the distinction which is thus attempted to be made between the testimony in the two trials upon this point. But, without pursuing this subject further, it is sufficient to say that we are unable to point out a single fact or circumstance having any material bearing on the question of the defendant's good faith in asserting title to the property in controversy that was not disclosed with equal certainty by the findings in the former record; and this court then held, on full consideration, that the facts found and reported were insufficient to warrant an...
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City and County of Denver v. Denver Tramway Corporation
...also have become the law of the case, and are not open to review here. Such is the established practice in this circuit. Thatcher v. Gottlieb (C. C. A.) 59 F. 872; Haley v. Kilpatrick (C. C. A.) 104 F. 647; County Board of Com'rs of Ouray v. Geer (C. C. A.) 108 F. 478; Crotty v. Chicago Gre......
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Meyer & Chapman State Bank v. First Nat. Bank
... ... second hearing, becomes the law of the particular case. In ... this jurisdiction, see Thatcher v. Gottlieb, 59 F ... 872, 8 C.C.A. 334; Balch et al. v. Haas, 73 F. 974, ... 20 C.C.A. 151; ... ...
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