Tiernan v. Miller & Leith

• Decision Date: 17 September 1903
• Docket Number: 13,058
• Citation: 96 N.W. 661,69 Neb. 764
• Parties: CHARLES TIERNAN, APPELLANT, v. MILLER & LEITH ET AL., APPELLEES
• Court: Nebraska Supreme Court

96 N.W. 661

69 Neb. 764

CHARLES TIERNAN, APPELLANT, v. MILLER & LEITH ET AL., APPELLEES

No. 13,058

Supreme Court of Nebraska

September 17, 1903

APPEAL from the district court for Box Butte county: JAMES J HARRINGTON, DISTRICT JUDGE. Affirmed.

AFFIRMED.

R. C Noleman, for appellant.

William Mitchell, contra.

DUFFIE C. POUND and KIRKPATRICK, CC., concur.

OPINION

DUFFIE, C.

This action was brought by the appellant, praying an injunction against the appellees enjoining them from asserting any exclusive control over numerous tracts of land claimed by the appellant to be government land, and from fencing the same or from driving the stock of plaintiff from said land. As we understand the record, twenty-nine homestead entries were made upon the lands in question, and duplicate receipts were issued to the parties by the receiver of the United States land office at Alliance. Miller & Leith claim to have leased the lands embraced in most of these homestead entries, and are about to fence in the same and take exclusive possession thereof. It is alleged that these entries are fraudulent, that Miller & Leith furnished the money to pay the land office fees, and also paid the entrymen certain sums for making said entries, which it is charged were made for the benefit of Miller & Leith; that the entries are a fraud upon the government and were made for the sole purpose of giving Miller & Leith a claim of right to the lands under which they are about to take exclusive possession thereof and to exclude the appellant therefrom, he having occupied a large portion of the lands with his herd of cattle for many years prior to the commencement of this action. The defendants filed a demurrer to the petition which was overruled--judge Harrington sitting in the case. Thereupon defendants filed a motion to dissolve the temporary injunction issued in the case, and, upon a hearing, the motion to dissolve was overruled and the temporary injunction continued. The hearing on this motion was before judge Harrington. At the next regular term of court, at which judge Westover presided, the plaintiff and appellant obtained leave to file a supplemental petition and thereupon a demurrer was interposed to the petition and supplemental petition which was sustained by the court, and the plaintiff refusing to amend or further plead, the injunction was dissolved and the plaintiff's petition dismissed. From this order the plaintiff has appealed to this court. The sufficiency of the petition being questioned both by demurrer and on motion to dissolve the temporary injunction issued thereon, and held sufficient by judge Harrington, it is now insisted that its sufficiency must be accepted as the law of the case and that judge Westover on the final trial was bound by these rulings.

In Marvin v. Weider, 31 Neb. 774, 48 N.W. 825, it was held that where the sufficiency of the petition was pet in question by a demurrer interposed thereto, and the demurrer overruled and leave given to the defendant to answer, which he did, that it was error for another judge of the same district to sustain an objection to the introduction of any evidence on the ground that the petition failed to state a cause of action.

In Kleckner v. Turk, 45 Neb. 176, 63 N.W. 469, a demurrer was interposed to a petition and overruled, whereupon the defendant filed answer. The trial was had before another judge of the same district and after the reception of the evidence the judge instructed the jury to return a verdict for the defendant for the reason that the pleadings, evidence and law would not sustain a different verdict. It was held that no error was committed, the reason given being that another element entered into the consideration of the case, namely, the evidence.

In Perry v. Baker, 61 Neb. 841, 86 N.W. 692, it was held that a judgment for defendant upon sufficient pleadings and evidence will not be reversed because another judge of the same court had, before the trial, sustained a general demurrer to the answer, the answer having been amended by leave of court after ruling on the demurrer, and this is the rule although no evidence is offered on the trial sustaining the allegation brought into the answer by such amendment. In the body of the opinion it is said:

"If a judge makes an erroneous ruling and afterwards in the trial of the case, with more exhaustive investigation of the question, finds his first ruling is wrong, he should not be bound by it. The principle of res adjudicata does not apply. The first ruling does not become the law of the case so as to bind the court in the further proceedings therein. The court remains the same whether the personnel changes or not. So far as a different rule was announced in Marvin v. Weider, supra, that case ought to be overruled. "

We conclude therefore from an examination of these authorities that where there are two or more judges of a district and one of them has passed upon the sufficiency of the petition or answer, his ruling does not become the law of the case and bind another who may be called upon to try the case on its merits, and especially is this the case where, as here, the pleadings have been changed and other elements have entered into the case. This brings us to a consideration of the case on its merits. The facts set forth in the plaintiff's petition and largely supported by his affidavits offered in resistance of the motion to dissolve the injunction, present a case which, if offered to the proper tribunal, would undoubtedly justify it in holding that the homestead...