Woodside v. Tynan — 5 Cal. Unrep. 807

Majority

p. 807

WOODSIDE et al. v. TYNAN.^[1]

Sac. No. 323;

September 30, 1897.

50 Pac. 424.

Headnote

Appeal—Law of Case—Re-examination on Second Appeal.—On a second appeal the decision on a former appeal as to the law of the case will not be re-examined.

APPEAL from Superior Court, Stanislaus County; W. 0. Minor, Judge.

Action by one Woodside and others against Thomas E. Tynan, on whose decease his executor, one Hewel, was substituted as defendant. From a judgment dismissing the eom

p. 808

plaint and from an order denying a new trial plaintiffs appeal.

Affirmed.

L. J. Maddux for appellants; W. H. Hatton, L. W. Fulkerth and D. M. Delmas for respondent.

Upon the former appeal in this case (Woodside v. Hewel, 109 Cal. 481 , 42 Pac. 152 ) the judgment and order denying a new trial were reversed upon the ground that the evidence failed to justify the findings of the court. Upon the next trial, the superior court, at the close of the plaintiffs’ case, granted the motion of the defendant for a nonsuit, and entered a judgment dismissing the complaint. Prom this judgment and an order denying a new trial the plaintiffs appeal.

The plaintiffs offered at the trial the same evidence which was given at the former trial, and, in addition thereto, certain testimony of the defendant; but the evidence presented in'the record, is substantially the same as that presented upon the former appeal, and under the principles declared on that appeal the court properly held that the plaintiffs had failed to establish a cause of action against the defendant. In their brief herein the appellants attempt to show that the former opinion and judgment of this court was incorrect, presenting in great part the same arguments which were presented upon that appeal; but, that decision having become the law of the ease, it was properly observed by the superior court, and we are not only fully satisfied with the correctness of our former judgment, but, under well-established rules, we also are precluded from re-examining it upon this appeal. The judgment and order are affirmed.