In re MONAGHAN'S ESTATE.
For former opinion, see 70 Ariz. 349, 220 P.2d 726.
Former decision adhered to.
H. S. McCluskey, of Phoenix, for appellant.
Wallace W. Clark, of Phoenix, for appellee.
Udall, C. J., Stanford, De Concini, and La Prade, JJ., and Gordon Farley, Superior Judge, concur.
[71 Ariz. 335] On July 15, 1950, this court handed down the second of two opinions in the above
entitled matter. The first opinion, In re Monaghan's Estate is reported in 65 Ariz. 9, 173 P.2d 107; the second, in 70 Ariz. 349, 220 P.2d 726. Subsequent to the second opinion appellant filed this motion for rehearing. It is now contended that the second opinion should be set aside on two grounds: (1) that it violates the rule of "law of the case" as laid down in the first opinion; and (2) that the second opinion when compared with the first leaves the law in an ambiguous and uncertain state.
We consider primarily the first objection and, if it is well taken, the court need go no further. What is meant by the [71 Ariz. 336] phrase "law of the case?" The court first discussed it in Snyder v. Pima County, 6 Ariz. 41, 53 P. 6, in the following language: "* * * Even though we should now be convinced that this court had made a mistake in its former judgment, directing the district court to overrule the demurrer and proceed to trial, yet that judgment is the law in this case. Its construction is more than stare decisis. It becomes res adjudicata. While this court may reserve to itself the right to reverse that decision as it may be applied to another case, yet it is well settled that a judgment of an appellate court in a case becomes the law of that particular case, and is not subject to review thereafter on second appeal. (Citing cases.) * * *"
The same rule is stated in Commercial Credit Co. v. Street, 37 Ariz. 204, 291 P. 1003, 1004, quoting 4 C.J., Sec. 3075, p. 1093: "'It is a rule of general application that the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first decision rested, and, according to some authorities, provided the decision is on the merits. This doctrine is not one whose extension is looked upon with favor, and it is adhered to in the single case in which it arises and is not carried into other cases as a precedent.'" See, also, 5 C.J.S., Appeal and Error, § 1821.
There are many other cases in Arizona upholding the same rule. On the other hand some states follow the rule that when the appellate court on the second appeal is convinced the first decision is erroneous the "law of the case" rule is not inflexible. And where the court expressly reserves its decision on any point raised in the first appeal it is not conclusive as to those matters reserved. Welton v. Cook, 61 Cal. 481. Nor is it conclusive on points where the first decision is ambiguous and conflicting. Gage v. Downey, 94 Cal. 241, 29 P. 635; Moore v. Barclay, 23 Ala. 739, 3 Am.Jur., Appeal and Error, Sec. 989.
It will be seen that two important principles are in conflict. The first is that a judgment clearly erroneous should not stand. The other is that at some time there must be an end to litigation and a final decision that parties can rely on. The reason for this latter principle is discussed in McGovern v. Kraus, 200 Wis. 64, 227 N.W. 300, 67 A.L.R. 1381. After a careful consideration of the matter we are of the opinion that in the long run better results will be obtained by upholding the rule, so long the law of Arizona, that, except on matters not expressly reserved or when the previous decision is ambiguous and uncertain, the court should continue to follow its many [71 Ariz. 337] decision applying the rule of law of the case as res judicata.
We are of the opinion that the first decision In re Monaghan's Estate, supra, is subject to both exceptions: first, as having at least one of the most important questions involved in the instant appeal expressly reserved in that case; and, second as being in many points ...