Opinion
Mo. 30310.
February 27, 1933.
APPEAL AND ERROR.
Holding on appeal that attorney's fees were not allowable became law of case, binding on both trial and supreme courts.
APPEAL from chancery court of Winston county. HON. T.P. GUYTON, Chancellor.
E.M. Livingston, of Louisville, and Baskin, Wilbourn Miller, of Meridian, for appellants.
Under the law of the case as determined and fixed by the opinion on the first appeal, no attorney's fee was recoverable.
Fair v. Federal Land Bank, 158 Miss. 87, 128 So. 733.
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.
Brewer v. Browning, 115 Miss. 358; Courst v. Conner, 86 So. 277, 123 Miss. 456; Pennington v. Purcell, 155 Miss. 554, 125 So. 99.
R.W. Boydstun, of Louisville, for appellees.
Upon the hearing of this cause on former appeal, 128 So. 733, the court held that appellee there, also appellee here, had failed to prove its case and the case was reversed and bill dismissed. Under that holding this court certainly, and very correctly, held that appellee was not entitled to recover an attorney fee. If this appellee could not recover on the main issue it certainly could not recover an attorney fee; the attorney fee is only incident of this suit and not the main issue.
The attorney's fee is recoverable in this case.
Tubberville v. Simpson, 47 So. 784, 94 Miss. 154; Witczinski v. Everman, 51 Miss. 841.
The decree in this case was affirmed on a former day of this term without a written opinion, 145 So. 338. In thus affirming, we overlooked the fact that the decree carried an additional amount of seventy-five dollars as attorney's fees; whereas, on the former appeal this court had held that attorney's fees should not be allowed under the facts of this particular case. D.L. Fair Lbr. Co. v. Fed. Land Bank, 158 Miss. 87, 92, 128 So. 733. This holding on the former appeal became, therefore, the law of the case, binding alike upon the trial court and upon this court, and which could not be set aside or disregarded by either court except for the most compelling reasons. This being the situation, we do not now attempt to draw what appeared to us on the former hearing to be some pertinent distinctions between this case and Tubberville v. Simpson, 94 Miss. 154, 47 So. 784. We leave this question of attorney's fees open so far as any future cases involving the same point may be concerned, but as to this particular case the opinion on the former appeal must control; and the suggestion of error will therefore be sustained to the extent that the attorney's fees will be eliminated from the decree by a decree rendered here. In all other respects the suggestion of error is overruled.
The suggestion of error will be sustained in part, the decree will be reversed, and a decree entered here for appellee. So ordered.