Supreme Court of Honor v. Tracy ( 1904 )

Ames, C.

This case has twice previously been before the court, and in both instances it was extensively briefed, argued at length orally, and at length and formally decided. The first opinion was written by Mr. Commissioner Albert, and concurred in by Mr. Commissioner Duffie and myself, and is published, unofficially, in 4 Neb. (Unof.) 189. The second opinion was upon a rehearing and written by-Mr. Commissioner Duffie, and concurred in by Messrs. Commissioners Pound and Kirkpatrick, and is also published, unofficially, in 4 Neb. (Unof.) 195. The suit is brought for a recovery by the beneficiary of a member of a fraternal benefit life insurance company, and involves an interpretation of the charter and by-laws of the association. A trial in the district court resulted in favor of the association, which by the first decision was reversed and the cause remanded for a new trial. Upon the rehearing the former decision was adhered to and a mandate was issued accordingly. Upon a new trial upon precisely the same record that had been presented in this court, the district court, in strict obedience to the opinions accompanying the mandate,, rendered a judgment for the plaintiff, there being no dispute as to the facts, and the sole question of law involved having been determined in the manner above stated by this court. The asso-’ ciation now prosecutes this proceeding, alleging, in substance, that the district court erred in obeying the mandate, and seeking to reargue the questions twice previ-, ously decided here. Nothing has been brought to our attention indicating to onr minds that the former decisions erroneously interpreted the contract, but, if there had been, we should be of opinion that the precise question decided in this court upon appeal or error cannot be relitigated upon a retrial of the same case in the district court.

It is recommended that the judgment of the district court be affirmed.

Letton and Oldham, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be

Affirmed.