t blush, passion or prejudice or corruption on the part of the jury. 128 All presumption on an appeal are in favor of the judgment, and of the rulings and correctness of the proceedings in the trial court, when the record shows nothing to the contrary.129 The effect of an unqualified reversal of a judgment is to remand the cause for a new trial.130 Error in the admission of evidence is ground for reversal, unless the appellate court can see from the record, that the appellant was not injured by such error.131 If the justices of the Supreme Court qualified to sit and act in a case on appeal be equally divided in opinion as to whether the judgment appealed from should be reversed or affirmed, such judgment should be affirmed. 132 A reversal of an order of the lower court refusing to grant a new trial and an order of the Supreme Court remanding the cause for a new trial vacates the judgment in the action.133 A new trial may be granted by the Supreme Court on an appeal from an order refusing to grant such new trial, notwithstanding an affirmance of the judgment in the action, on an appeal from such judgment alone.134 It is a maxim never to be disregarded that general expressions in every opinion of the Supreme Court are to be taken in connection with the case, in which such expressions are used 135 The decision of the Supreme Court on an appeal becomes the law of the case as to whatever was necessarily involved in the decision on the facts of the case as presented on that appeal, 136 If such decision, through inadvertence states two principles 128. Howland v. Oakland C. St. Ry. Co., 110 Cal. 523. 129. Von Schmitt v. Von Schmitt, 104 Cal. 547, and 103 Cal. 7: 105 136. Polack v. McGrath, 38 Cal. 666; Eversdon v. Mayhew, 85 Cal. 1. of law, one of which is inconsistent with the other, neither of the principles so stated constitutes the law of the case. 137 When the record on the second appeal presents a state of facts different from the state of facts presented by the record on the former appeal, the decision of the Supreme Court on such former appeal is not the law of the case in respect to such different state of facts, or different questions of law, shown by the record on such second appeal, and these will be considered as fully as they would have been, if presented on a first appeal.188 The dismissal of an appeal by the Supreme Court is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.139 Upon an appeal from a judgment, the court may review the verdict or decision, and any intermediate order or decision excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken.140 When the judgment or order is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment or order, so far as such restitution is consistent with the protection of a purchaser of property at a sale ordered by the judgment, or had, under process issued upon the judgment, on the appeal from which the proceedings were not stayed; and for relief in such cases the appellant may have his action against a respondent enforcing the judgment, for the proceeds of the sale of the property after deducting therefrom the expenses of the sale. When it appears to the appellate court that the appeal was made for delay it may add to the costs such damages as may be just, 141 137. Gage v. Downey, 94 Cal. 241. 138. Klauber v. San Diego St. Car Co., 98 Cal. 105. 140. Code of Civil Procedure, Sec. 956. 141. Code of Civil Procedure, Sec. 957. CHAPTER XXXVIII. OF WRITS OF ERROR TO THE SUPREME COURT OF A STATE FROM THE SUPREME COURT OF THE UNITED STATES. There are some cases in which the judgment of the Supreme Court of a state on an appeal, are not absolutely final, until the time has passed for the issuance of writs of error from the Supreme Court of the United States, for the purpose of having reviewed, in that high tribunal, such judgments of the Supreme Court of a state. By the provisions of article III, section 2, of the constitution of the United States, the Supreme Court of the United States has appellate jurisdiction both as to law and fact, with such exception and under such regulations as the congress shall make in all cases in law and equity arising under the constitution and the laws of the United States, and treaties made or which shall be made under their authority, to controversies in which the United States shall be a party, to controversies between citizens of the same state, claiming land under grants of different states, and between the citizens of a state and foreign states' citizens and subjects. Congress has enacted that a final judgment or decree in any suit in the highest court of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty, statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity; or where any title, right,. privilege, or immunity is claimed under the constitution, or any treaty, statute of, or commission held, or authority exercised, under the United States and the decision is against the title, right privilege or immunity specially set up or claimed, by either party, under such constitution, treaty, statute, commission or authority, may be examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed on in a court of the United States; and the proceedings upon the reversal shall be the same, except that the Supreme Court may at its discretion proceed to a final. decision of the case and award execution, or remand the same to the court from which it was so removed. On such writ of error the Supreme Court may (reaffirm) reverse, modify, or affirm the judgment or decree of such state court, and may at its discretion award execution or remand the same to the court from which it was removed, by the writ. Writs of error from the Supreme Court to a state court must be brought within two years after the entry of the judgment decree or order of the state court sought to be reviewed by the writ, saving to persons under a disability by reason of infancy, insanity, or imprisonment, a like period of two years, to bring such writ after such disability is removed.2 A writ of error returnable to the Supreme Court of the United States may be issued as well by the clerks of the Circuit Courts of the United States under the seal thereof as by the clerk of such Supreme Court.3 When the writ is issued to a state court, the chief justice, judge, or chancellor of that court, or a justice of the Supreme Court of the United States, if of opinion, judicially, that such writ should be allowed, is to sign a citation to the defendant named in the writ and the signing of such citation is in effect an allowance of the writ.4 A judge of a district court of the United States has no authority in law to sign such citation, nor to take and approve 1. C. S. Rev. Statutes, Sec. 709. 2. U. S. Rev. Statutes, Secs. 1003, 1008. 3. U. S. Rev. Statutes, Sec. 1004. 4. U. S. Rev. Statutes, Sec. 999; Greely v. Townsend, 25 Cal. 604. of security, in order to make the writ of error operate as a supersedeas. The judge or justice who allows the writ by signing the citation must take good and sufficient security that the party applying for the writ who is designated as the plaintiff in error, shall prosecute his writ to effect and if he fail to make his plea good, he shall answer all damages and costs, when the writ is a supersedeas and stays execution; and all costs only, when it is not a supersedeas." There shall be annexed to and returned with such writ of error an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with the citation to the adverse party, who is designated as the defendant in error. When appellant jurisdiction has been conferred by the constitution on the Supreme Court of this state, then, in a case in which such jurisdiction has been conferred and for which the legislature has not provided for an appeal, such case may be brought before the higher court for review by a writ of error.8 It is not my purpose in this work to treat of civil remedies by writs of error returnable to the Supreme Court of the United States, and further notice of such writs of error are outside of the purpose for which this work was written. 5. Tompkins v. Mahoney, 32 Cal. 231. 8. Ex parte Thistleton, 52 Cal. 220. |