competent court, of an issue of fact or of law between adversary parties over which it has jurisdiction, defining and establishing their rights. The right to a retrial is itself the mere consequence, not the judgment. The judgment must have been, not that there was an error in the record, but some certain error giving the plaintiff in error or appellant the right to new trial, and such a judgment determines the rights of the parties and includes in it determination of every matter of fact or of law necessarily included in or necessary to reach the judgment that there was "error in the record," that the judgment was not what on the issue it should have been. It follows necessarily that a judgment of reversal on a purely law issue does adjudge the law as that the pleadings are or are not sufficient to sustain the judgment below. If the same subject-matter comes in question JUNE, in a second action before an appellate court, it is bound by its own former decision. Black, Judgm. § 527. Black does not limit it to cases between the same parties or their privies, though such limitation is necessary. 115. Herman, Estoppel & Res Adjudicata, p. 117, No case is intended to be cited below which was not at the former hearing "reversed generally for a trial de novo," and citation where reversed, if the case was reported and is found, is made. How. 481, 15 L. ed. 973, error, ejectment, United States: Roberts, v. Cooper, 61 U. S. 20 How. 182, 15 L. ed. 341, for new trial genreversed; Cooper v. Roberts, 59 U. S. 18 erally, Grier, J.: led on a second writ of error in the same We cannot be compel case to review our own decision on the first." Chaffin v. Taylor, 116 U. S. 567, 29 L. ed. three months after the township plat was returned | rected to be entered failed to give the party what to the land office. Megerle v. Ashe, 47 Cal. 632. And where the action was one of ejectment, and it was contended that since the beginning of the action the party's title had been strengthened. To recover in ejectment the plaintiff must not only bave a right of entry at the trial but also when the suit is brought. Kile v. Tubbs, 32 Cal. 332. 414. questioned whether or not the attempt to make a And where the questions were the same. It was second appeal was not a contempt under Cal. Code Civ. Proc. § 1209, subsec. 4, which provided that par-party to an action was a contempt of the authority abuse of process or proceedings of the court by a of the court. Heinlen v. Beans, 73 Cal. 240. And where in deciding who were necessary ties to an action for partition, the prior decision held that the holder of a special location acquired the title of a tenant in common and stood in the place of his grantor in respect to the special location. Gates v. Salmon, 46 Cal. 361. And where the same question was presented. It was said that as to whether a composition deed would be binding upon the plaintiff if carried out, no question remains to be considered as that was passed upon by the court upon the previous decision. Continental Nat. Bank v. Koehler, 17 N. Y. S. R. 23. And where the prior decision construed a deed of trust. More v. Calkins, 95 Cal. 435. And where the prior decision construed a will, and held that the executors had no power to sell real estate. Huse v. Den, 85 Cal. 390. And where the prior decision held that a will was sufficient to pass the title of the land to the executors. Gaines v. Fender, 82 Mo. 497. And where the prior decision construed a will and the disposition of personal property, the charge of existing debts, the power of the executor, and the existence of a trust. Bank of United States v. Beyerly, 42 U. S. 1 How. 134, 11 L. ed. 75. And where the same question was presented, although a material fact appearing in the record was not recited among other facts which were stated in the opinion, as this did not tend to show that such fact was not considered by the court. Mulford v. Estudillo, 32 Cal. 131. And so where the same question was presented a second time. Such decision cannot be departed from so far as the questions of law or fact are concerned which were therein presented for review or decision. Palmer v. Murray, 8 Mont. 174. And where the same question was settled. "No question, once considered and decided by this court, can be re-examined at any subsequent stage of the same case." Re Sanford Fork & T. Co. 160 U. S. 247, 40 L. ed. 414. to the statute of limitations. It was said that the And so where the same questions were settled as effort to obtain a different decision upon the same conception of professional duty. Cook v. Norton, question was not respectful to the court, and a mis61 Ill. 285. And so where the questions were the same. It cannot be shown upon second appeal that the sumerits, when it appears from the record of its judgpreme court did not determine the case on its P. R. Co. v. Peterson, 115 Ill. 597. ment that it was so determined. Wabash, St. L. & court, and the same question on the second appeal And where the prior decision was by the supreme was before the court of appeals, an intermediate court. Tittman v. Thornton, 53 Mo. App. 512; & St. P. R. Co. v. Snyder, 27 Ill. App. 476, 128 Ill. Blondeau v. Sheridan, 47 Mo. App. 460; Chicago, M. 655. and the prior appeal was to the court of appeals, And where such appeal was to the supreme court, which did not reverse the case upon the merits, and therefore must have held the evidence was suffithe same in both cases. Dye v. Delaware, L. & W. cient to authorize a recovery, and the facts were R. Co. 59 N. Y. S. R. 583. made in an equity case to foreclose a mortgage. peal from a verdict rendered on a feigned issue. said that it was so conclusive that the court So where the same question was presented again. And where the law of the case was settled and an It was said that the rule established by the general affidavit was subsequently filed in the court below term as to the discretion to be exercised by courts by a party claiming a contrary effect of such deci-sidered, and the rules then laid down were not in determining such motions was carefully consion. Pico v. Cuyas, 48 Cal. 639. merely dicta of the judge rendering the opinion, And where it was claimed that the judgment di- but utterances of the general term and rules to 34 L. R. A. California: Dewey v. Gray, 2 Cal. 377; Phelan v. San Francisco, 20 Cal. 39; Reclamation Dist. No. 3 v. Goldman, 65 Cal. 635, Reversed 61 Cal. 205. 727, 114 U. S. 309, 29 L. ed. 198; Clark v. Keith, | Ark. 293; Taliaferro v. Barnett, 47 Ark. 362, 106 U. S. 465, 27 L. ed. 302, Reversed Keith Reversed 37 Ark. 511. v. Clark, 97 U. S. 466, 24 L. ed. 1075; United States v. 422 Casks of Wine, 26 U. S. 1 Pet. 549, 7 L. ed. 258, Reversed The Sarah, 21 U. S. 8 Wheat. 394, 5 L. ed. 644: Wayne County Supers. v. Kenicott, 94 U. S. 498, 24 L. ed. 260, Reversed Kenicott v. Wayne County Supers. 83 U. S. 16 Wall. 471, 21 L. ed. 322. Alabama: Matthews v. Sands, 29 Ala. 136, Reversed Sands v. Matthews, 27 Ala. 399; Miller v. Jones, 29 Ala. 180, Reversed 26 Ala. 247; Roundtree v. Turner, 36 Ala. 555, Reversed Turner v. Roundtree, 30 Ala. 706. Arkansas: Fortenberry v. Frazier, 5 Ark. 202, 39 Am. Dec. 373 (1843), Reversed Frazier v. Fortenberry, 4 Ark. 162; Rector v. Danley, 14 Ark. 307; Biscoe v. Tucker, 14 Ark. 523, Reversed 11 Ark. 145; Porter v. Doe, Hanley, 10 Ark. 191, Reversed Doe, Phillips, v. Porter, 3 Ark. 18, 62; Miller v. Barkeloo, 18 Colorado: Kansas P. R. Co. v. Bayles, 19 Colo. 350, Reversed Bayles v. Kansas P. R. Co. 13 Colo. 181, 5 L. R. A. 480, 2 Inters. Com. Rep. 643; Routt v. Greenwood Cemetery Land Co. 18 Colo. 132, Reversed Greenwood Cemetery Land Co. v. Routt, 17 Colo. 156, 15 L. R. A. 369; Israel v. Arthur, 18 Colo. 159, Reversed Arthur v. Israel, 15 Colo. 147, 10 L. R. A. 693; Israel v. Arthur, 7 Colo. 5; Lee v. Stahl, 13 Colo. 174, Reversed 9 Colo. 208. Connecticut: Smith v. Lewis, 26 Conn. 116, 24 Conn. 624, 63 Am. Dec. 180; Nichols v. Bridgeport, 27 Conn. 459, Reversed 23 Conn. 189, 60 Am. Dec. 636; Fowler v. Bishop, 32 Conn. 199, Reversed 31 Conn. 560; New Ha govern such motions. (This is a memorandum de- | ful propriety, but bad been settled by a long series cision, and the motion was not defined.) Ruther- of years. Yale v. Dederer, 68 N. Y. 335. ford v. Madrid, 30 N. Y. Supp. 1134. A second appeal from a judgment by the same party was a nullity where a prior appeal was regularly taken and then pending. Brown v. Plummer, 70 Cal. 337. In Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047, it was said that a decision upon a prior appeal was conclusive upon the second appeal where the same question was settled. b. Where the prior decision is erroneous. The cases in some of the states hold that a prior decision is conclusive upon a subsequent appeal where such prior decision is erroneous, some hold that it is conclusive even if it is erroneous, and some hold that it is conclusive whether it is right or wrong. This may be said to be the weight of authority, and these decisions are found in Alabama, Arkansas. California, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Montana, New York, Oregon, Pennsylvania, Vermont, Virginia, Washington, Wisconsin, and the Federal courts. Some states have adopted the same rule, but have cases holding that an erroneous decision is not conclusive, as Missouri, Nebraska, Utab, and Texas, and in addition to the above, Connecticut, New York, and Ohio hold that it is conclusive unless it is wrong, as in HASTINGS V. FOXWORTHY. So, the decision of a court upon a prior appeal was conclusive on a second appeal where such prior decision was erroneous because the record was incomplete. Nothing will be re-examined except proceedings subsequent to the mandate. Fortenberry v. Frazier, 5 Ark. 202. In Rutherford v. Lafferty, 7 Ark. 402, the prior decision, which was erroneous, was held not to be conclusive, where the court on the prior appeal overlooked the true state of the record, and consequently arrived at an improper conclusion, and confounded the names of John and James in a receipt and were induced to decide against the law of the case; but this case was overruled in Porter v. Doe, Hanley, infra. The decision on a former appeal was held conclusive on a second appeal where the question was made that the prior decision was erroneous. ter v. Doe, Hanley, 10 Ark. 186. And where the court said: "We regret that this question is not open in the present case." Parker v. Pomeroy, 2 Wis. 112. And where the court said: "We are bound by the decision then made, however much we may be inclined to a different view." Willis v. Smith, 72 Tex. 565. And where the same question was involved. This was so even though the court was satisfied that its former decision was erroneous. Alexandria Sav. Inst. v. McVeigh, 84 Va. 41. And where the court said: "We do not, and cannot, fully indorse the doctrine declared in the above quotation (instructions given) from our former opinion." Pittsburgh, C. & St. L. R. Co. v. Hixon, 110 Ind. 225. And where the court said: "In disposing of this case we are not to be understood as approving of the correctness of the former holding." Burlington, C. R. & N. R. Co. v. Dey, 89 Iowa, 13. And where the members of the court on the sec ond appeal did not concur in the former decision. Dougherty v. Horseheads, 39 N. Y. Supp. 447. And where the court was of the opinion that if the case was new the court would overrule it. Dewey v. Gray, 2 Cal. 377. And where the court said: "The latter portion of that decision is in abrogation of one of the plainest principles of law, and if this case was a new one I would not hesitate to overrule it." Davidson v. Dallas, 15 Cal. 75. And where the writer of the last opinion believed the former decision to be erroneous. Missouri P. R. Co. v. Walker (Tex. Civ. App.) 23 S. W. 855; Brewer v. Ford, 59 Hun, 17; Loomis v. Cowen, 106 Ill. 660; Drake v. Chicago, R. I. & P. R. Co. 70 Iowa, 59. And where the prior decision was by the court of appeals, although the superior court at general term on the second appeal disapproved of that decision. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 4 Misc. 426. And where the court said: "However much I might be inclined to differ from the opinion of this court which has been referred to . . . neverthePor-less that opinion is and must be the law of this case until it is reversed by a higher tribunal." Creighton v. Hershfield, 2 Mont. 169. The decision upon a prior appeal was conclusive upon a second appeal where the same question was presented, although the rule established on a prior appeal was erroneous. Hombs v. Corbin, 34 Mo. App. 33, Teurt v. Ambrose, Id. 360; McLendon v. McGlaub, 60 Ga. 244; Haynes v. Meeks, 20 Cal. 288. And where the rule laid down was one of doubt ven & N. Co. v. State, 44 Conn. 391; State v. New Haven & N. Co. 43 Conn. 351. Florida: Wilson v. Fridenberg, 21 Fla. 389, 19 Fla. 461; Fridenburg v. Wilson, 20 Fla. 359; Doyle v. Wade, 23 Fla. 94, Reversed Wade v. Doyle, 17 Fla. 522. versed Springfield v. Green, 120 Ill. 269; Reed v. West, 70 Ill. 479, Reversed West v. Reed, 55 Ill. 242; Smyth v. Neff, 123 Ill. 310, Reversed Neff v. Smyth, 111 Ill. 100; Taylor v. Frew, 113 Ill. 359, Reversed Frew v. Taylor, 106 Ill. 159; Johnson v. Von Kettler, 84 Ill. 317, Reversed Von Kettler v. Johnson, 57 Ill. 109, Johnson v. Von Kettler, 66 Ill. 63; Tucker v. People, 122 Ill. 595, Reversed 117 Ill. 88. Georgia: Central R. Co. v. Coggin, 73 Ga. 695, Reversed Coggin v. Central R, Co. 62 Ga. 685, 35 Am. Rep. 132; Dean v. Feely, 69 Ga. 804, 66 Ga. 273, Reversed O'Byrne v. Indiana: Hobson v. Doe, 4 Blackf. 489 (1838). Feeley, 61 Ga. 85; Shelton v. Ellis, 73 Ga. 138, Reversed 2 Black f. 308; Armstrong v. Harsh70 Ga. 300; Saulsbury v. Iverson, 73 Ga. 733, man, 93 Ind. 217; Harshman v. Armstrong, Reversed Iverson v. Saulsbury, 68 Ga. 790; Sa- 43 Ind. 126, Reversed Armstrong v. Harshvannah Bank & T. Co. v. Hartridge, 75 Ga.man, 61 Ind. 52, 28 Am. Rep. 665; Con151, Reversed 73 Ga. 223; Lewis v. Hill, 87 | tinental L. Ins. Co. v. Houser, 111 Ind. 268, Ga 466, 80 Ga. 402; Phillips v. O'Neal, 87 Ga. 731, as O'Neal v. Phillips, 83 Ga. 556, and Phillips v. O'Neal, 85 Ga. 142. Idaho: Palmer v. Utah N. R. Co. 2 Idaho, 350, Reversed Id. 290. 89 Ind. 258; Pittsburgh, C. & St. L. R. Co. v. Hixon, 110 Ind. 226, Reversed 79 Ind. 111; Tipton County Comrs. v. Indianapolis, P. & C. R. Co. 89 Ind. 101, Reversed Indianapolis, P. & C. R. Co. v. Tipton County Comrs. Illinois: Green v. Springfield, 130 Ill. 520, Re-70 Ind. 385; Forgerson v. Smith, 104 Înd. 247, And where the court said: "I am not prepared to commit myself to the correctness of this doctrine, as applied to the facts of this case. Johnson v. Northwestern Teleph. Exch. Co. 54 Minn. 37. And where it was expressly adjudged on the prior appeal that equity had jurisdiction over the matters in controversy, and that the bill was a creditor's bill, and on the second appeal the court said: "If it were an open question we should not | perhaps feel inclined to pronounce the bill as filed a creditor's bill. . . . It is sufficient for this cause, however, that it was so held when the case was in this court on the former appeal." Williams v. Newman (Va.) 26 S. E. 19. And where the supreme court on the second appeal unanimously disapproved of the decision on the first appeal, and the first decision had since been overruled. Saulsbury v. Iverson, 73 Ga. 735. And where the court said: "We do not hold it to be the law of other cases." Newberry v. Trowbridge, 13 Mich. 278. And where it was insisted that the Supreme Court of the United States since the first decision had held differently from a ruling made on one of the points. Conroy v. Vulcan Iron Works, 75 Mo. 651. And where, since the prior decision, the supreme court in another case involving similar facts had decided differently. Although the decisions of the supreme court were binding upon the appellate court as authority, the prior decision was held to be res judicata. Ogle v. Turpin, 8 Ill. App. 453. And where, since the prior decision, the supreme court has held in other cases a contrary doctrine, but the prior decision was the law of the case between the parties in that action. Tipton County Comrs. v. Indianapolis, P. & C. R. Co. 89 Ind. 101; Phoenix Ins. Co. v. Pickel, 3 Ind. App. 332; Brown v. Marion Nat. Bank, 18 Ky. L. Rep. 186; Thomson's Appeal v. Albert, 15 Md. 268. And where the former appeal affirmed the judgment, although the decision of the prior appeal was erroneous. If the judgment had been reversed on the prior appeal, the rulings on the prior appeal might be examined if presented in the proper shape. State, Hay, v. Harper, 56 Mo. App. 611. The court of appeals on an appeal refused to notice that a decree which was used in evidence in the trial court had been reversed since the decree, although it was held to be a bar in the case below. The court of appeals could only decide the case as presented by the record. Cates v. Loftus, 4 T. B. Mon. 443. The decision upon a prior appeal was conclusive upon the second appeal, where on the second trial a motion was made to correct the computation of the amount found due by the supreme court. Lombard v. Gregory, 88 Iowa, 431. Some cases hold that the prior decision is conclusive even if erroneous. So, the decision upon a prior appeal was conclusive on the second appeal where the same ques. tion was involved, even if it was clear that the prior decision was a mistake. Stuart v. Preston, 80 Va. 625. And where the same questions were settled, even if the decision was erroneous. The only mode of reviewing the same is by a petition for a rehearing. Ward v. Johnson, 5 Ill. App. 30; McCormick Harvesting Mach. Co. v. Gray, 114 Ind. 340; Morgan County Comrs. v. Pritchett, 85 Ind. 68; Heffner v. Brownell, 75 Iowa, 341; Davenport v. Kleinschmidt, 8 Mont. 467; Taliaferro v. Barnett, 47 Ark. 362; Hough v. Harvey, 84 Ill. 308; Johnson v. Von Kettler, Id. 315; Gunter v. Laffan, 7 Cal. 588; Vogel v. Little Rock, 55 Ark. 609. And where the same question was settled, it was said that even though the prior decision may have been overruled there is no ground for altering the decision in any case where the decision was made before it was overruled. Herrick v. Belknap's Estate, 27 Vt. 699; Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 478. The decision upon a prior appeal was conclusive upon the second appeal where the prior decision directed a decree to be entered. Although the appellate court might have erred in its decree, it had no power to correct the error after the term had expired in which the decision was rendered. Bradford v. Patterson, 1 A. K. Marsh. 347. And where the same question was presented, however erroneous it might be; but as to new parties in a different controversy it was not conclusive. Frazier v. Frazier, 77 Va. 783. And where the first decision reversed a decree, and the former appellee prosecuted a writ of error to reverse the same decree. It was conclusive if the prior decision was ever so erroneous. Rice v. Wheatly, 9 Dana, 271. And where the questions presented were the same. The court had no power to review its former judgment except upon the petition for a rehearing, and if the court misapprehended the facts in the former record, it was too late to urge the same. Reed v. West, 70 Ul. 479. And where it was contended that on the second appeal the court had misapprehended the facts upon the prior appeal. Simplot v. Dubuque, 56 Iowa, 639. And where the court said that no court can reverse or annul its own final decree or judgment for errors of fact or law after the term, unless for Reversed Smith v. Ferguson, 90 Ind. 229; Kentucky: Bradford v. Patterson, 1 A. K. Kress v. State, Wagoner, 65 Ind. 106, Reversed Marsh. 346 (1819), Reversed 4 Bibb, 584; Smith Larr v. State, Wagoner, 45 Ind. 364; Gerber v. | v. Brannin, 79 Ky. 119; Williams v. Rogers, 14 Friday, 87 Iud. 366, Reversed Gerber v. Sharp, | 72 Ind. 553; Dodge v. Gaylord, 53 Ind. 365, Reversed Gaylord v. Dodge, 31 Ind. 41; Bartholomew County Comrs. v. Jameson, 86 Ind. 154; Jameson v. Bartholomew County Comrs. 64 Ind. 524; Test v. Larsh, 76 Ind. 452, Reversed Larsh v. Test, 48 Ind. 130; Rich mond Street R. Co. v. Reed, 83 Ind. 9; Reed v. Richmond Street R. Co. 50 Ind. 342. Iowa: Adams County v. Burlington & M. R. Co. 55 Iowa, 94, Reversed 39 Iowa, 507, and 44 Iowa, 335; Babcock v. Chicago & N. W. R. Co. 72 Iowa, 197, Reversed 62 Iowa, 594; Heff ner v. Brownell, 75 Iowa, 341, Reversed 70 Iowa, 591. Kansas: Crockett v. Gray, 31 Kan. 346, Reversed Gray v. Crockett, 30 Kan. 138: Headley v. Challiss, 15 Kan. 602, Reversed Challiss v. Headley, 9 Kan. 684. Bush, 776; Davis v. McCorkle, Id. 746; Kennedy v. Meredith, 4 T. B. Mon. 409, Reversed Meredith v. Kennedy, Litt. Sel. Cas. 516; Kennedy v. Meredith, 3 Bibb, 465; Nelson v. Clay, 7 J. J. Marsh. 138, 23 Am. Dec. 387 (1834), Reversed Clay v. Nelson, 5 Litt. (Ky.) 155; Sims v. Reed, 12 B. Mon. 52; Meredith v. Clarke, Sneed (Ky.) 189 (1802); Ford v. Gregory, 10 B. Mon. 175, Reversed Gregory v. Ford, 5 B. Mon. 471; Legrand v. Baker, 6 T. B. Mon. 244, Reversed Baker v. Legrand, Litt. Sel. Cas. 253. Louisiana: Tufts v. Casey, 16 La. Ann. 336, Reversed 15 La. Ann. 260; Boisse v. Dickson, 32 La. Ann. 1150, Reversed 31 La. Ann. 753; Gillaspie v. Scott, 32 La. Ann. 767. Maine: Atkins v. Wyman, 45 Me. 400. Maryland: Preston v. Leighton, 6 Md. 97, Reversed Leighton v. Preston, 9 Gill, 201; clerical mistakes. Er parte Sibbald v. United case it must be the law applicable to further proStates, 37 U. S. 12 Pet. 488, 9 L. ed. 1167. ceedings in the same case. Perry v. Little Rock & Some cases hold that the prior decision is conclu- Ft. S. R. Co. 44 Ark. 383. sive whether right or wrong. So, the decision upon a prior appeal was conclusive upon the second appeal where the question was the same, whether right or wrong. Gerber v. Friday, 87 Ind. 366; Meyer v. Shamp, 26 Neb. 729; McKinney v. Harral, 36 Mo. App. 337; Central Warehouse Co. v. Sargeant, 40 Ill. App. 438: Brewer v. National Union Bldg. Asso. 64 Ill. App. 161; Bab- | cock v. Chicago & N. W. R. Co. 72 Iowa, 197; Central Branch Union P. R. Co. v. Shoup, 28 Kan. 394, 42 Am. Rep. 163; Holleran v. Meisel, 91 Va. 143; Wilkes v. Davies, 8 Wash. 112, 23 L. K. A. 103: Wright v. Sperry, 25 Wis. 617; Cole v. Clarke, 3 Wis. 323; Du Pont v. Davis, 35 Wis. 638; McLeod v. Bertschy, 34 Wis. 244; Noonan v. Orton, 27 Wis. 310; Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562. And where the facts were the same; whatever doubt the court might entertain on the second appeal as to the rule laid down in the former decision. Rector v. Danley, 14 Ark. 304; Ridgway v. Bacon, 63 N. Y. S. R. 874. And where the same question was involved, even if there should be doubt as to the soundness of the prior decision. Brandon v. Fritz, 94 Pa. 88. And where the question was admitted to be of difficult and doubtful solution. An opinion of the appellate court determining the case upon two distinct grounds was regarded as a decision upon both grounds, and not as a dictum on either. Corn v. Rosenthal, 3 Misc. 72. And where the same question was presented whatever views the different members of the court And where the first ruling was not essential to entertained as to the soundness of the former dethe prior decision and became a part of the law of cision. Stacy v. Vermont C. R. Co. 32 Vt. 551; the case, whether intrinsically correct or not. Adams County v. Burlington & M. R. Co. 55 Iowa, Table Mountain Tunnel Co. v. Stranaban, 21 Cal. 94; Southwest Lead & Z. Co. v. Phoenix Ins. Co. 41 548. And where the lower court followed such decision, and this rule applied without regard to whether the prior decision was right or wrong. Burke v. Matthews, 37 Tex. 73. Mo. App. 406. And where the prior decision was approved by the court of appeals. It would not be re-examined, even if its correctness was doubtful. Rose v. Hawley, 53 N. Y. S. R. 403. And where it was said that it would make no dif And where the same question was presented as to the construction of a contract, and this rule ap-ference whether the prior decision was correct or plied whether the prior decision was right or wrong. Chicago, M. & St. P. R. Co. v. Hoyt, 44 Ill. App. 48. And where the first decision was on a motion to dismiss an appeal. The ruling in that decision, whether erroneous or not, was the law of the case. Walker v. Heller, 104 Ind. 327. And where the prior decision sustained a complaint on demurrer. The prior decision is the law of the case whether right or wrong. Linton Coal & M. Co. v. Persons (Ind.) 43 N. E. 651. And where the same question was presented; the court saying: "In thus yielding to the former decisions we do not approve them as precedents, nor do we disapprove them, we simply yield to them as former judgments, and decline to enter upon a discussion of the general question." Howe v. Fleming, 123 Ind. 262. And where the questions presented were the same, whatever might be the views of the court on that question, at the time of the second appeal. Test v. Larsh, 76 Ind. 452. And where the court on the last appeal said that the conclusions then reached were correct. In any not, it could not be modified or changed. Central R. Co. v. Coggin, 73 Ga. 695; Ryan v. Martin, 18 Wis. 673; Powell v. Dayton, S. & G. R. R. Co. 14 Or. 22. And where the judgment was reversed, and the appellate court held that the complaint was sufficient. It was said that this would be the rule whatever might be the views of the court upon the second appeal. Lucas v. San Francisco, 28 Cal. 591. And where the same question was involved on demurrer to a complaint. It was said that this was the rule whether right or wrong. Brimm v. Jones (Utah) 45 Pac. 46. And where the questions were the same, and this was said to be the rule whether the prior decision was correct or not, in holding the complaint stated a cause of action and therefore settling the question as to whether the proper party was plaintiff. Reclamation Dist. No. 3 v. Goldman, 65 Cal. 635. And where the questions were the same, and this was said to be the rule, whatever opinion might be subsequently entertained of the original question involved in the action in which the decision was rendered. Sharpstein v. Freidlander, 63 Cal. 78. Brown v. Somerville, 8 Md. 454, Reversed, and 64 Mich. 93; Gamble v. Gates, 97 Mich. Somerville v. Brown, 5 Gill, 399. Massachusetts: Booth v. Com. 7 Met. 286; Hunter v. Farren, 127 Mass. 485, 34 Am. Rep. 423; Pratt v. Boston Heel & L. Co. 134 Mass. 300; Negus v. Simpson, 99 Mass. 395; Kent v. Whitney, 9 Allen, 65, 85 Am. Dec. 739; Amherst Bank v. Root, 2 Met. 542: Joyner v. Great Barrington, 118 Mass. 465; Bardwell v. Conway Mut. F. Ins. Co. Id. 469. Michigan: Henry v. Quackenbush, 48 Mich. 417, Reversed Quackenbush v. Henry, 42 Mich. 75; Great Western R. Co. v. Hawkins, 18 Mich. 431, Reversed Hawkins v. Great Western R. Co. 17 Mich. 57, 97 Am. Dec. 179; Bassett v. Shepardson, 57 Mich. 428, Reversed 52| Mich. 3; Hickox v. Chicago & C. S. R. Co. 94 Mich. 236, Reversed 78 Mich. 615; Damon v. De Bar, 94 Mich. 594, Reversed 83 Mich. 262; Newberry v. Trowbridge, 13 Mich. 278, Reversed 4 Mich. 391; Mynning v. Detroit, L. & N. R. Co. 67 Mich. 677, Reversed 59 Mich. 257, And where, it was said that this was the rule, whether the former decision was correct or not. Page v. Fowler, 37 Cal. 100; Polack v. McGrath, 38 Cal. 666; Heinlen v. Martin, 59 Cal. 181; Lillie v. Trentman, 130 Ind. 16; Nickless v. Pearson, 126 Ind. 477. 465, Reversed 92 Mich. 510. Minnesota: Caldwell v. Bruggerman, 8 Minn. 286; Tilleny v. Wolverton, 54 Minn. 75, Reversed 46 Minn. 256, and 50 Minn. 419. Mississippi: Smith v. Elder, 14 Smedes & M. 100, Reversed 7 Smedes & M. 507; Bridgeforth | v. Gray, 39 Miss. 136, Reversed Gray v. Bridgeforth, 33 Miss. 312; Green v. McDonald, 13 Smedes & M. 445, Reversed Mc Donald v. Green, 9 Smedes & M. 138, Reversed Green v. Finucane, 5 How. (Miss.) 542. Missouri: Overall v. Ellis, 38 Mo. 209, Reversed 32 Mo. 322; Metropolitan Bank v. Taylor, 62 Mo. 340, Reversed 53 Mo. 444: Hombs v. Corbin, 34 Mo. App. 394, Reversed 20 Mo. App. 497; Feurt v. Ambrose, 34 Mo. App. 360, Reversed Feurt v. Brown, 23 Mo. App. 332. Montana: Daniels v. Andes Ins. Co. 2 Mont. 502, Reversed Id. 78: Creighton v. Hershfield, 2 Mont. 169, Reversed 1 Mont. 639; Kelley v. Cable Co. 8 Mont. 440, Reversed 7 Mont. 70; ner, in the same cause on a later appeal when necessary. Rutledge v. Missouri P. R. Co. 123 Mo. 121. And where the same question was involved. It was said: "We have, of course, power-considered as mere power-to recall that judgment, if of opinion that it was erroneous; and appellate courts have sometimes, on a second appeal, taken a differ former appeal. But we remain of the opinion then expressed, and do not think it necessary to repeat our reasons for so holding." Little v. McAdaras, 38 Mo. App. 187. And where it was said to be the rule even if "we doubted the correctness of the ruling when ap-ent view of the law from that announced on the plied to other cases." Hawley v. Smith, 45 Ind. 183. And where the facts were the same, as the supreme court had no appellate jurisdiction over its own judgments and could not review or modify them after the case passed from its control. This rule applies whether the prior decision was right or wrong, and was as conclusive in a case of reversal as where a particular judgment was directed to be entered, and applied to an action of ejectment where the evidence was the same. Leese v. Clark, 20 Cal. 388. In Lawrence v. Ballou, 37 Cal. 518, it was said that a decision upon a prior appeal was conclusive upon the second appeal, and this whether right or wrong. This only applies to a decision of a court of last resort. And where such decision was correct. It was said that a prior decision will not be re-examined, or the ruling then made reversed, unless manifestly incorrect. Fuller v. Cunningham (Neb.) 67 N. W. 879. In Fuller v. Cunningham, supra, the case of HASTINGS V. FOXWORTHY was approved as to the doctrine that a decision upon a prior appeal was conclusive unless manifestly incorrect. The decision upon a prior appeal was conclusive upon the second appeal where the same question was presented. It was said that if there was any Some cases hold that the prior decision is conclu- reason to suppose that the merits of the question sive unless it is wrong. So,the decision of the supreme court on a question reserved by the superior court upon a statement of facts was conclusive on the supreme court where the same question was again presented on a writ of error. But as to whether or not there might be circumstances which would authorize a re-examination of the prior questions was not decided. Smith v. Lewis, 26 Conn. 116, So, the decision on a prior appeal was conclusive on a second appeal where the same question was presented, unless some general principle of law had been manifestly decided incorrectly the first time, or injustice to the rights of the parties would be done by adhering to the first opinion. Chambers v. Smith, 30 Mo. 156. And where the same question was presented. But it was said in Missouri that there are some exceptions to this general rule. Keith v. Keith, 97 Mo. 223. And where it was said that there were exceptions to the general rule, but this case was not within the exceptions. Ibid.; Belch v. Miller, 37 Mo. App. 628. And where it was said that courts of last resort occasionally find it proper and just to overrule, and thus correct their former declaration of legal principles. It sometimes is a matter of congratulation that justice can be finally done in that man had not been fully considered, or that any fact had been misunderstood or any principle or any authority bearing upon the validity of the contract in question had been overlooked, it might justify a review of the question. Justice v. Lang, 52 N. Y. 323. And where it was said that the decision should not be reversed unless there had been some plain mistake, as in overlooking some statutory provision, or some controlling decision of that court. Eaton v. Alger, 47 N. Y. 345. And where it was said that a prior judgment was binding unless there was a plain error committed by the court in declaring or applying the rules of law applicable to the case, or unless the point determined was not involved in the case before it, or unless there were new facts which subvert the ground of the former judgment and change the character or measure of relief to which the party was entitled. Worrall v. Munn, 53 N. Y. 185. And where it was said this rule should not be departed from except in extreme cases founded upon some change in the law of the land either by legislation or by courts of last resort, or when the court is satisfied that an erroneous conclusion bas been declared. Brennan v. New York, 1 Hun, 315. And where both appeals were to the appellate division of the general term. But the court |