“injustice” and “unsound” principle of law led to departure from rule
How later courts described this case
- “injustice” and “unsound” principle of law led to departure from rule
Written by the judges who cited it.
The opinion
WARD, Circuit Judge
(dissenting). The opinion of the court concedes that the record on this appeal is the same as that on the former appeal. If the question then decided were raised between different parties, we should be affected only by the rule of stare decisis, and might overrule our former decision on the law; but between the same parties our former decision makes the law of the case, and is in this respect res adjudícala. I refer, among many other opinions of the Supreme Court, to Supervisors v. Kennicott, 94 U. S. 498 , 24 L. Ed. 260 ; Clark v. Keith, 106 U. S. 464 , 1 Sup. Ct. 568, 27 L. Ed. 302 ; Thompson v. Maxwell, 168 U. S. 451 , 18 Sup. Ct. 121, 42 L. Ed. 539 ; We have so understood the law in this circuit (Development Co. v. King, 170 Fed. 923 , 96 C. C. A. 139 ), and it has been so declared in the following Circuit Courts of Appeals: Fourth Circuit, Linkous v. Virginia Ry. Co., 242 Fed. 916 , 155 C. C. A. 504 ; Fifth Circuit, Woodruff v. Yazoo Co., 222 Fed. 30 , 137 C. C. A. 567 ; McClellan v. Rose, 222 Fed. 67 , 137 C. C. A. 519 , certiorari refused 241 U. S. 668 , 36 Sup. Ct. 552, 60 L. Ed. 1229 ; Seventh Circuit, Standard Co. v. Leslie, 118 Fed. 557 , 55 C. C. A. 323 ; Eighth Circuit, United Press Association v. National Association, 254 Fed. 284 , 165 C. C. A. 572 ; Ninth Circuit, Matthews v. Bank, 100 Fed. 393 , 40 C. C. A. 444 ; National Bank v. U. S., 224 Fed. 679 , 140 C. C. A. 219 .
I think the opinion of the court is a departure from a wise and salutary rule, which requires us to affirm the final judgment in this case, and thferefore dissent.