Klauber v. San Diego Street Car Co.

Citations

• 98 Cal. 105
• 32 P. 876
• 1893 Cal. LEXIS 867

Syllabus

<p>Appeal—Law of the Case—Different Facts on Second Appeal.—The rule that upon a second appeal in a cause the court must accept its former decision as the law of the case is applicable only when the same matters that were determined on the first appeal are brought before it on the second appeal, and should not be extended to prevent a judicial consideration of the case beyond the exigences which demanded its application, and whenever upon the second hearing the record presents a different state of facts, or different questions of law, the former determination ceases to be an estoppel, and this court is at liberty to consider the questions presented as fully as though presented upon a first appeal.</p> <p>Id.—First Appeal by Plaintiff—Reversal of Judgment upon Findings_ Second Appeal by Defendant—Bill of Exceptions—Dismissal.—Where the plaintiff took a first appeal from the judgment upon the judgment-roll alone, without a bill of exceptions, and a judgment was thereupon ordered to be entered upon the findings for appellants, and a second appeal was thereupon taken by the defendant from the judgment so entered, upon a record containing exceptions taken by him at the trial, and settled by the judge who tried the cause» such exceptions could not have been considered upon the first appeal, and may be properly determined upon the second appeal; and the second appeal will not be dismissed upon the ground that the decision of the first appeal is the law of the case upon the second appeal, and that no appeal could be taken from the final judgment ordered upon that appeal.</p> <p>Id. — Final Judgment—Entby of New Judgment in Lieu of Vacated Judgment—Notice of Entby—Time fob Settlement of Exceptions. — There can be only one final judgment in an action; and when a judgment entered has been vacated and another entered in lieu thereof, the last judgment becomes the only judgment in the cause, and the notice of its entry is the point of time from which the right of the party again