Hart v. Stribling , 25 Fla. 435 ( 1889 )

On Petition eor Rehearing.

When a question presented by petition for rehearing has heen considered and adjudicated by the court, there is no such omission or mistake as furnishes ground for a rehearing ; and in this case the question of the liability of certain sureties being held not to have been determined on a former appeal in such way as to settle the question as the law of the case, a rehearing- will not he granted on the ground of alleged error in the decision of that point.

Maxwell, J.:

When this case was under consideration, we liad fully before us the previous action of this court on former appeals, and one of the questions to be determined was whether we were precluded by the decision in the first appeal from considering the point as to the liability of the sureties, in favor of whom the bill had been dismissed by the Circuit Court. The petition for rehearing calls attention to the fact that the question of the release of the sureties was before the court by the assignment of errors, and was argued by counsel, in that appeal, and submits that the decision then given, holding the sureties liable, “is not dicta, but the law of the case.”

It will be seen from the opinion in the present case that we did not fail to consider the question, whether that decision, so far as it related to the liability of the sureties, was intended to be conclusive on that point, and that we held it was not. There was, therefore, no such omission or mistake as furnishes proper ground for a rehearing.

In addition to reasons given in the original opinion, it may be observed that the cqurt in the.first appeal dealt with the question of the liability of. the sureties not so much upon the substantive merits of the question as upon its relation to the main matter ot the decision, which was that the decree pro oonfesso had. been improperly set aside. Having held that no good cause for setting it aside had been shown, the court, to strengthen the conclusion, says “ nor do we think that the case is one of such hardships as to imperatively demand a favorable exercise of the discretion,” (20 Fla., 235,) and then, to show why, proceeds to a brief examination of the question of liability. It is to be observed further that on the second appeal, the same Justice delivering the opinion, the court directed that the bill as to the obligators in the bond should be dismissed “ unless by amendments a case of primary liability on their part is made, to which new case they will have a right to make defence.” 21 Fla., 136. Amendment was made, and answers filed, and proceedings had which resulted in the decree brought here for review. That was the “ new case ” authorized. This would not have been done if the court had thought the liability of the sureties had been already finally determined.

We have said this much in support of our conclusion in the original opinion, because we wish it understood that, while wre fully recognize the rule that a question once finally decided in a case is thereby settled as the law of that case, we do not think the rule has been disregarded by us in this case.