Johnson v. Success Brick Machinery Co.

Citations

• 104 Miss. 217
• 61 So. 178

Syllabus

<p>1. Appeal and Error. Law of case. Principal, and surety. Failure to sue principal. Recovery against surety.</p> <p>The principles controlling the doctrine of “the law of the ease” are more binding upon courts than the law of precedent, and a decision on a question of law decided on a former appeal of the same ease will be adhered to on a subsequent appeal, though erroneous.</p> <p>2. Principal and Surety. Recovery against surety. Failure to probate note.</p> <p>The mere failure of a payee in a promissory note to probate it against the estate of a principal maker and thus ^permitting it to become barred as against the estate of the deceased debtor, does not prevent recovery against the surety on the note.</p> <p>ON SUGGESTION OF ERROR.</p> <p>1. Principal and Surety. Claim against estate. Failure to probate. Discharge of surety.</p> <p>While the failure to probate a claim against the estate of a deceased person bars the right of recovery from the estate, such failure does not discharge a living surety, unless the failure to probate occurred after the surety has demanded of the creditor that he probate his claim.</p> <p>2. Appeal and Ebroe. Law of case. Decision on former appeal.</p> <p>If the record on the second appeal to the supreme court is substantially the same as the record on the first appeal the court will adhere to its opinion on the first appeal, however wrong it may believe its opinion was in the first instance.</p> <p>3. Motions. Rulings. Reopening. Discretion.</p> <p>Where a matter has been duly considered and decided by the court on a motion or application in that behalf, such as a motion to dismiss the suit, or to quash an information, or for leave to amend a pleading, or to cancel a notice, the defeated party has no absolute right to renew the same contention and obtain another hearing on some different form of application or plea, but if the court doubts the correctness of its former ruling or desire a more thorough investigation of the question,