Jones v. Charleston & Western Carolina Ry. Co. ( 1903 )

In this case the appellant has filed a petition for a rehearing on two grounds, the first of which is as follows: "Because, as it is respectfully submitted, the Court in its decision in this case, in holding that certain conclusions announced on the former appeal were resjudicata and required the Circuit Judge on the new trial to charge the jury in accordance therewith, whether right or wrong, he overlooked the fact that the principle governing this case is not res adjudicata — but if the former decision controls, it must be on the principle of Stare decisis, and if such decision has been weakened or overruled, then the latest decision must control." While this Court is satisfied that the authorities cited in the opinion amply sustain the ruling of this Court, nevertheless, out of deference to the earnest argument of appellant's counsel, we will refer to others, some of which are from our own State. In the case of Sanders v. Bagwell, 37 S.C. at page 150, 15 S.E., 714, Mr. (now Chief) Justice Pope uses this language: "The effect of the judgment of this Court simply reversing the first judgment in the Circuit Court, placed the parties litigant in the same plight and condition they had been in before any trial of the action, with this restriction — that they could not again litigate the same matters that had been passed upon by this Court, as evidenced by the opinion of the Court, accompanying its judgment. It may be as well to state in this connection, in answer to so much of respondent's position, `that the judgment of the Supreme Court on the first appeal was neither pleaded nor put in evidence,' that it was not necessary to either plead nor put such judgment in evidence. All parties were bound at their peril to give such judgment, in the identical action, between the same parties, with the same attorneys, instant and continued recognition and obedience." See, also, Cunningham v. Cauthan, 44 S.C. 106,21 S.E., 800; Mfg, Co. v. Price, 6 S.C. 278; Kibler v. Bridges, 5 S.C. 335. The two last mentioned cases are cited in the voluminous notes to Hastings v. Foxworthy, 34 L.R.A. (Neb.), 321, which discusses the question under consideration and shows that the ruling of this Court is sustained by the weight of authorities.

The second ground for a rehearing is as follows: "It is respectfully submitted that even if we are wrong in what we have above said — the former case and this case are not identical, as the facts were to some extent different on the two trials — and this fact was overlooked by the Court. On the former trial there was no evidence tending to show notices had been posted, forbidding the use of the track as a walkway. On the new trial there was such testimony." It makes no difference whether the testimony was the same or not. The material question is whether the same principle of law is involved.

It is, therefore, ordered, that the petition be dismissed, and that the order staying the remittitur heretofore granted, be revoked.