Shepherd v. Dougan , 59 Idaho 465 ( 1938 )

When this case was here before, 58 Idaho 543,76 P.2d 442, p. 449, I expressed the opinion, on petition for rehearing, that the previous judgment of the court was "erroneous in so far as it awards a lien against the property" involved in the litigation. The majority of the court, however, reached a different conclusion and directed the trial court "to enter a decree awarding a lien . . . . on the hotel property in favor of appellant." I still entertain the same views I expressed at that time. Notwithstanding my personal views, this court reversed the judgment of the trial court and remanded the case "with instructions to take such further evidence as may be necessary, if any, to enable it to compute the difference between said sums paid and expended as aforesaid, together with interest thereon, and the rental value of the hotel to be charged and deducted as herein directed, to make and file appropriate findings of fact and conclusions of law, and to enter a decree awarding a lien for such difference on the hotel property in favor of appellant."

It has been held by this court that, where a judgment is reversed and a new trial is ordered, pleadings may be amended upon the going down of the remittitur. (Parke v. Boulware,90 Idaho 225, 231, 73 P. 19; Harrison v. Russell Co., 17 Idaho 196, 204, 105 P. 48.) On the contrary, this may not be done where the amendment would contradict a position taken by same party on the former trial. (Elder v. Idaho-Washington etc. R.R., 26 Idaho 209, 141 P. 982.) Here it cannot be said that anew trial was ordered, although this court instructed the trial court "to take such further evidence as may be necessary, if any, to enable it to compute the difference between said sums paid and expended as aforesaid, together with interest thereon, and the rental value of the hotel." This authorized only a limited hearing confined to a single issue which had alreadybeen formed by the pleadings. For these reasons, I am constrained to the opinion that the previous decision (58 Idaho 543,76 P.2d 442) is the law of the case on the issue now presented, and that it was not within the power of the trial court to allow a reframing of that issue. (Hall v. Blackman, 9 Idaho 555, 75 P. 608; Vinyardv. North Side Canal Co., Ltd., 47 Idaho 272, 277, 274 P. 1069;Garvin v. First Nat. Bank, 50 Idaho 491, 492, 298 P. 359.)