Opinion
Rehearing Denied Aug. 1, 1930
Hearing Granted by Supreme Court Sept. 11, 1930
Appeal from Superior Court, San Diego County; Charles C. Haines, Judge.
Action by Daniel A. Deacon against E.F. Bryans, as executor of the will of Helene D. Heinrich, deceased. From a judgment in favor of plaintiff, defendant appeals
Affirmed. COUNSEL
Arthur F.H. Wright and Eugene Daney, both of San Diego, for appellant.
Wright & McKee, and C.M. Monroe, all of San Diego, for respondent.
OPINION
BARNARD, J.
One Helene D. Heinrich died on November 30, 1922. This is an action against the executor of her estate based upon four separate promissory notes, aggregating $13,966. The plaintiff alleges that all four of these notes were lost or stolen from his pocket on June 1, 1922, the date upon which two of the notes were alleged to have been executed and delivered. The action was first tried in May, 1923, the court finding that three of the notes had never been made, executed, or delivered, and that one note for $3,000 had been made, executed, and delivered, and subsequently lost. Judgment was given in favor of the plaintiff for the amount claimed on said note. Upon the appeal that followed the judgment was reversed and the case remanded for a new trial upon all four counts. Deacon v. Bryans, 88 Cal.App. 322, 263 P. 371, 374. In that case the court said:
"It is urged that the trial court erred in sustaining objections to the plaintiff’s testifying to certain events and conversations which took place prior to the death of Helene D. Heinrich. Plaintiff concedes that, under section 1880 of the Code of Civil Procedure, ordinarily these rulings would have been required. However, he insists that the defendant waived the objection allowed by this section. It appears that, during the cross-examination of Deacon, counsel for defendant asked a number of questions having to do with the loss of the notes the answers to which necessarily concerned incidents happening before the demise of the maker. The questions and answers are as follows:
" ‘Q. When did you make your last search for the alleged notes in question? A. About three weeks ago. Q. When did you make your first search for them? A. After the deceased— do you want me to answer, before the deceased died? Q. Well, I say, when did you make the first search for the notes? A. The first search I made was— let me see— May 31, 1922. Q. Where did you make the search? A. In my office. Q. Did you have a safe? A. Yes, sir. Q. Did you look in the safe for them? A. I did. Q. Did you make a thorough search at that time to see if you could find them? A. I did. Q. How long before that had you missed them? A. I don’t remember. Q. Well, approximately how long? A. Oh, not more than a couple of hours. Q. The same day? A. The same day. Q. The search was made at your office? A. Yes. Q. Had you been keeping them in the safe? A. I had up to the time I took them to the apartment house. Q. That was the 31st of May, 1922? A. The last— yes, a year ago.’
"Helene D. Heinrich died on November 30, 1922."
It had been contended by the executor that, in an action upon a lost instrument, the proof of the loss is an incidental and preliminary matter; that the cross-examination of the plaintiff concerning the loss of the notes did not waive the provisions of subdivision 3 of section 1880 of the Code of Civil Procedure; and that said cross-examination did not make the plaintiff a competent witness as to any matter or fact occurring before the death of the deceased and concerning the execution or delivery of the notes in question. In passing upon that contention the court said:
"We conclude that, in cross-examining Deacon as to incidents occurring before the death of the deceased, the defendant waived the incompetency of the witness under the provision of section 1880 of the Code of Civil Procedure, and hence that the subsequent rulings of the trial court sustaining objections to questions on redirect examination having to do with other material issues and incidents occurring before the death of Helene D. Heinrich were prejudicially erroneous."
When the action was again tried, over the objection of the defendant that the witness was incompetent to testify under section 1880 of the Code of Civil Procedure to any transaction occurring before the death of Helene D. Heinrich, and that the testimony at the former trial could not be used where the witness was present in court at a subsequent trial, the court permitted the plaintiff to read into the record, from the record of the previous trial, the questions and answers shown in the above quotation from the opinion of the appellate court, and then permitted the plaintiff to testify at length to all the circumstances surrounding the execution and delivery of the alleged notes. Thereafter judgment was entered in favor of the plaintiff for the full amount claimed under all of the notes. From that judgment the defendant has appealed.
The appellant contends that, the judgment having been reversed and the case sent back for a new trial, he was entitled to have the whole case tried anew, as if it had never been tried before; that it was error for the court to permit said portion of the previous record to be read into the evidence in this trial; and that in any event the cross-examination so read into the record was only cross-examination upon an incidental and preliminary matter, and was not such as to waive the provisions of subdivision 3 of section 1880 of the Code of Civil Procedure. It is respondent’s contention that the question of the waiver of that section of the Code, and the competency of the plaintiff to further testify, was settled by the decision on the previous appeal and that this decision became the law of the case.
It is, of course, well settled in this state, that the provisions of subdivision 3 of section 1880 of the Code of Civil Procedure may be waived by an executor. Kinley v. Largent, 187 Cal. 71, 200 P. 937; McClenahan v. Keyes, 188 Cal. 574, 206 P. 454. It having been held on the previous appeal in this case that the incompetency of this witness had been waived by the executor, the first question to be considered is whether that decision was controlling in the second trial of the case, where the same cross-examination was not repeated. In general, it may be said that the principle of the "law of the case" applies to all questions of law that have been decided, whatever be their character. Leese v. Clark, 20 Cal. 387. The decision of a question as to the admissibility of evidence is a decision of a question of law and becomes the law of the case, and is conclusive when the same question is raised on a subsequent appeal. Kerns v. Dean, 77 Cal. 555, 19 P. 817; Smith v. Sinbad Development Co. 15 Cal.App. 166, 113 P. 701; Hubbard v. Lee, 10 Cal.App. 477, 102 P. 528. It has been held that a previous decision that certain evidence was incompetent, and therefore not sufficient to justify the decision, became the law of the case, being a decision upon a question of law. Wallace v. Sisson, 114 Cal. 42, 45 P. 1000. It would seem that the same rule must apply where the previous decision held that the evidence was competent, and that there are even more reasons for the rule when the question is as to the competency of a witness, rather than the competency of particular evidence. In Yuba Inv. Co. v. Yuba Consol. Gold Fields, 199 Cal. 203, 248 P. 672, the principle was not applied to a previous decision that parol evidence in respect to a certain deed was inadmissible only for the reason that on the new trial the pleadings had been amended. In Gould v. Stafford, 101 Cal. 32, 35 P. 429, the rule that a decision as to the admissibility of certain evidence is binding upon the court at the next trial, if the pleadings are not materially amended, is approved. While it is true that when a case is sent back for a new trial it is to be tried de novo, it is not entirely true that the whole case is to be tried anew, as if it had never been tried before. In Sharp v. Miller, 66 Cal. 98, 4 P. 1065, the court said:
"The reversal of the judgment and order denying the motion for a new trial when the cause was here before, *** placed the parties in the lower court in the same position as if the case had never been tried, with the exception that the opinion of this court must be followed so far as applicable in the new trial."
When a case is remanded for a new trial it is to be tried upon the principles of law, declared in the opinion of the previous trial so far as these are applicable. Davidson v. Dallas, 15 Cal. 75; Leese v. Clark, supra; Ransome-Crummey Co. v. Coulter, 50 Cal.App. 150, 194 P. 1051.
"When a cause is to be tried anew after an appeal, the parties are in the same position, and the cause is to be retried as if it had never been tried, with the exception that the former opinion of the appellate court must be followed, so far as applicable, in the new trial." 2 Cal.Jur. 1061.
We think that a decision upon the question of whether the incompetency created by subdivision 3 of section 1880 of the Code of Civil Procedure has been waived by particular acts of the opposing party is a decision of a question of law, and as we have seen, such a previous decision is conclusive when the same question is raised on a subsequent appeal. On the previous appeal in this case the question as to the waiver here relied upon was decided adversely to appellant. We think the same question is again before us on this appeal. The only possible question would be whether the same question is now properly raised. If the same cross-examination that occurred in the previous trial had been repeated at the second trial, it must be conceded that the previous decision would be the law of the case. The appellant contends that, the new trial being de novo, he had a right to obviate the mistakes of the previous trial (if any), and that the question has not been properly raised here, for the reason that the respondent had no right to read into the record of this trial the cross-examination of the plaintiff that occurred at the first trial. It may be conceded that there is no authority in law for reading into the evidence in this case that portion of the record on the former trial. In our opinion the error in permitting this to be done was not prejudicial for the reason that the respondent put the same witness on the stand and proceeded to question him on the additional matters. The law of the case applies when the same situation arises, but in the second trial of this case it was not necessary in order that the same situation should arise that the same cross-examination should be repeated. When the respondent was placed upon the stand and offered as a witness as to the additional matters an objection was made that he was incompetent to testify as to those matters. This objection raised the question of his incompetence and as to whether such incompetence had been waived. The court then had to pass upon the question as to whether or not the witness was disqualified, just as the court had to pass upon that question on the first trial. And in so doing, it was bound by the former decision of that question. Without the introduction of the excerpt from the previous evidence, when this question was raised, it was the duty of the trial court to follow the decision of the Appellate Court, which was to the effect that the objection was not well taken, because such incompetence had been waived. We therefore feel compelled to hold that the court was not in error in overruling the objection and permitting the further testimony. The court was bound by that decision whether the question was correctly decided therein or not. Ellis v. Witmer, 148 Cal. 528, 83 P. 800; Heinlen v. Martin, 59 Cal. 181; Lawrence v. Ballou, 37 Cal. 518. For the purposes of this decision we must, therefore, assume that the disqualification of this witness had been waived.
While we feel compelled to so hold because of what we regard as the established law of the case we do so with regret for the double reason that we do not agree with the decision on the previous appeal, and because the facts of this case, so far as shown by the record, are such as to confirm the wisdom of the rule of law established by subdivision 3 of section 1880 of the Code of Civil Procedure.
For the reasons given the judgment is affirmed.
We concur: MARKS, Acting P.J.; AMES, Justice pro tem.