Venard v. Greene

• Citation: 4 Utah 456,11 P. 337
• Court: Supreme Court of Utah
• Decision Date: 23 June 1886
• Parties: THOMAS VENARD, RESPONDENT v. WILLIAM G. GREEN AND EDWARD AUSTIN, INTERVENORS AND APPELLANTS, IMPLEADED WITH BARNEY MCMANAMON, IMPLEADED WITH OLD HICKORY MINING AND SMELTING COMPANY

11 P. 337

4 Utah 456

THOMAS VENARD, RESPONDENT IMPLEADED WITH BARNEY MCMANAMON, v. WILLIAM G. GREEN AND EDWARD AUSTIN, INTERVENORS AND APPELLANTS,

IMPLEADED WITH OLD HICKORY MINING AND SMELTING COMPANY

Supreme Court of Utah

June 23, 1886

APPEAL from a judgment of the district court of the second district. The ninth finding of fact made by the trial court is as follows:

"(9) That on the twenty-second day of September, 1883, Barney McManamon, co-plaintiff with the plaintiff Thomas Venard, in this action, obtained and received judgment against the Old Hickory Mining & Smelting Company, for the sum of $ 403.09 damages, and for costs of suit; and a decree of foreclosure and order of sale; that the Old Hickory Lode or Mining Claim hereinbefore described, the property of the defendant the Old Hickory Mining & Smelting Company, be sold for the payment of the said judgment, debt, and costs recovered by said McManamon against said defendant company; and that said property was sold under said judgment, order, and decree of foreclosure, and order of sale, to the plaintiff McManamon for the sum of $ 441.69."

The other material facts appear in the opinion of the court and in the opinion in the case of Venard v. Old Hickory M. & S Co., ante p. 67.

Judgment affirmed, with costs.

Mr. U. J. Wenner and Mr. Thos. Maloney, for the appellants.

Cited: Jones on Mort., Vol. 2, sec. 1654; Poweshiek v. Dennison, 36 Iowa 244; Carter v. Walker, 2 Ohio St., 339; Frische v. Kramer, 16 Ohio 125; West B. B. v. Chester, 11 Penn. St., 282.

Mr. Presley Denny, Mr. John W. Christian, and Messrs. Sutherland & McBride, for the respondent.

The questions of law and of fact being the same, the decision on the former hearing becomes the law of the case.

And on a second appeal the court cannot reverse its ruling on any question of law which was decided on the first appeal. The first decision, whether right or wrong, has become the law of the case: Pollock v. McGrath, 38 Cal. 666; Yates v. Smith, 38 Cal. 60; Page v. Fowler, 37 Cal. 100; 43 Cal. 323.

And a judgment by the court, in accordance with the decision or findings, cannot be reversed on appeal from the judgment, nor the law reopened or disregarded on subsequent appeal: Yates v. Smith, 40 Cal. 662; Pico v. Cuyas, 48 Cal. 639; Lick v. Diaz, 44 Cal. 479; Gates v. Salmon, 46 Cal. 362.

POWERS, J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

POWERS, J.:

This case has already been before this court: Venard v. Old Hickory Min. Co., ante p. 67. At the June term, 1885, a petition for rehearing was filed and denied. Upon the case being remanded, the court below entered up judgment, and the sole question on this hearing is whether judgment was entered in accordance with the opinion of this court. We decline to consider the question raised by the appellant as to whether this court erred in its construction of the law. That was a proper subject upon the petition for a rehearing. The questions of law and fact being the same, the decision on the former hearing becomes the law of the case. Upon a second appeal, when the questions are the same, this court will not reverse its rulings as made on the first appeal. So far as the particular case is concerned, the first decision becomes the law (Polack v. McGrath, 38 Cal. 666; Yates v. Smith, 38 Cal. 60; Page v. Fowler, 37 Cal. 100; Tyler v. Magwire, 84 U.S. 253, 17 Wall. 253, 283, 21 L.Ed. 576; Choteau v. Allen, 74 Md. 56; Martin v. Heinlen, 59 Cal. 181); and a judgment of the court below in accordance with the opinion of this court will not be reversed on appeal from the judgment (Yates v. Smith, 40 Cal. 662; Pico v. Cuyas, 48 Cal. 639; Lick v. Diaz , 44 Cal. 479; Gates v. Salmon, 46 Cal. 361).

Let us therefore determine whether the judgment of the lower court is in accordance with the decision of this court. Emerson, J., in delivering the opinion, uses this language: "The appellant was entitled to a judgment against the respondents for the amount of his wages which the court finds due and unpaid, and I can perceive no reason why he was not entitled to a decree foreclosing his lien, and for an order of sale as against the intervenors. His lien antedated that of the judgment upon which their rights were founded, and he has done nothing to forfeit it, waive or postpone it. It can make no difference with his rights, as against the respondents or intervenors, that his co-plaintiff had obtained a judgment for his claim, and a foreclosure of his lien. The record shows that the property will more than satisfy both liens, so that there will be no question about apportioning the proceeds of the sale. The purchasers at the execution sale, who are the intervenors here, must be held to have purchased the property subject to the prior lien of the appellant.

While we are not exactly satisfied with the reasoning of the learned judge, still, right or wrong, his conclusions...