This is an appeal by defendant from an order denying his motion for a new trial.
I agree with what is said in the opinion of Justice Works as to the record here, except what is said with reference to certifying exhibits left out of the statement on a suggestion of diminution of the record.
I do not understand that on its being made to appear that the record has been diminished by the omission to insert a part of it that this court can order certified to it anything but what is contained in the record in the court below. To constitute a part of the record, the exhibits offered in evidence must be inserted in the statement. This may be done by copying them into the statement, inserting them in hæcverba, or by stating their substance or contents. The statement must be complete, — must have all the evidence engrossed in it when allowed and certified by the judge.
When the exhibits are not inserted as pointed out above, they are not part of the record of the court below, whether on file or not, and cannot be brought to this court by its order on any suggestion of diminution.
I have examined the statement as to the exhibits said not to be inserted in it, and find that the contents of several of them do appear in the statement. All of the exhibits referred to are "plaintiff's exhibits." No. 21 is inserted in hæc verba on page 1199 of volume 3. The contents of Exhibit 9 are stated in Cushman's deposition, *Page 683 which I think properly here. It is there entitled Exhibit C. Exhibit 23 was an invitation given by Sharon to his daughter's wedding, and the contents were stated by plaintiff in her testimony when it was produced and marked as an exhibit. Exhibit 24 was a blank envelope which contained an invitation to Miss Sharon's wedding, which had been furnished to plaintiff. In the envelope with the invitation was a card "to go on a train," which had to be presented at the train. The plaintiff stated that it was such a card. Exhibit 26 is Dobinson's visiting card, so stated by the plaintiff when giving her testimony. Exhibits 51, 54, and 55 appear to be letters shown a witness (Mrs. Shawhan), who admitted they were in her handwriting. They were signed " 1132." Could they be material to any issue before this court? Exhibit 71, according to plaintiff's testimony, was a bill and receipt for meals furnished her from a restaurant. Exhibit 8 was a letter produced by a witness (Cushman) who stated that it was in the genuine handwriting of the defendant, Sharon.
The engrossed statement, in the form in which it now appears in the transcript, was stipulated to be correct by the attorneys for the plaintiff, and on this statement the motion for a new trial was heard. It could not have been heard until the statement was filed (Code Civ. Proc., sec. 660), and it could not have been filed until it was engrossed and certified to be correct by the judge. (Code Civ. Proc., sec. 659.)
This statement as it appears here must have been used on the motion for a new trial, and the statement so used, by the words of thestatute, is to go into the record to be used on an appeal from an order denying a new trial. (Code Civ. Proc., sec. 661.)
I think that no exhibits at all material have been left out of the record; that those not inserted were omitted because they were regarded by the counsel for both plaintiff and defendant as immaterial. *Page 684
As regards the depositions, it may be said that the stipulation of the attorneys of plaintiff on the record covers them, and plaintiff cannot object, in the face of this stipulation, to their being regarded as properly in the statement
In passing on the questions presented by counsel in this case, it becomes necessary to determine what was determined in Sharon v.Sharon, 75 Cal. 1.
The appeal in 75 California was from the judgment, and this is an appeal from an order denying a motion for a new trial in the same case.
The opinion of the court in the former appeal was drawn up by Justice McKinstry and concurred in by Searls, C. J., and Temple and Paterson, JJ. To determine what was ruled on the former appeal we have to examine that opinion.
In my judgment the following propositions were there decided to be law and applicable to the case: —
1. That an agreement between a man and a woman to become husband and wife made per verba de præsenti is not invalidated by the fact that it contains a collateral promise by one of the parties not to make the marriage known for two years without the consent of the other.
2. That under section 55 of the Civil Code it is not necessary to the validity of a marriage not attended by a solemnization that the present consent to marry should be followed by a public mutual assumption of marital rights, duties, and obligations.
3. That sexual intercourse may be inferred from cohabitation; that evidence that a man and woman have had sexual intercourse, whether direct, or consisting of proof of a further fact from which the intercourse may be inferred, as cohabitation, is, when preceded by the present consent of the parties to marry, evidence that the parties have actually assumed all the duties incident to marriage.
4. That present consent to marry kept secret, followed *Page 685 by secret cohabitation, is sufficient to constitute marriage.
Near the close of the opinion it is said: "The court below foundas facts that, during a certain period after the consent to marry, `the plaintiff and defendant lived and cohabited in the way usual with married people,. . . . and mutually assumed toward each other marital rights, duties, and obligations.' If, as we have said, they might mutually assume marital rights and duties, although their relation was kept secret, the insertion of the words `toward each other' does not vitiate the finding, and the finding of facts is conclusive on this appeal." (75 Cal. 36.)
As summing up the ruling in the opinion, it is said: "Our conclusion is, that the provision of the code requiring a mutual assumption of marital rights and duties to follow consent does not make it indispensable to the validity of the marriage that the relation between the parties shall be made public." (75 Cal. 37.)
Although the word "public" is used, in the portion last quoted from the opinion, to qualify the nature of the relation, it should be observed that in the portion previously quoted (which, by a few sentences, precedes the portion last quoted) the qualifying words are "although this relation was kept secret."
It seems to me that the fair construction of the opinion is, that it was intended to lay down the rules of law set forth in the propositions above stated as applicable to the relation between the parties, though it was during the whole period of their intercourse kept secret.
In holding that the findings sustained the judgment, the points above stated were, in my view, necessarily held. If they had not been, the court could not have determined to affirm the judgment.
Justice Temple concurred in the prevailing opinion, and expressed his views in plain and direct terms. He said: "The word `consummation' was avoided in section *Page 686 55 because it has come to be a euphemism for the more indelicate wordcopula, and thereby has acquired a more narrow meaning than was intended. Therefore, the phrase which only indicates the assumption of the contract relation was used. But in section 57 the word ` consummation' is substituted for the phrase. It cannot mislead here, for it has been defined, but it shows that the mutual assumption of marital rights, duties, or obligations is of the nature of consummation, — something in the nature of part performance of the consent to present marriage; though that is not limited to the copula.
"`Sec. 57. Consent and consummation may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.'
"Subsequent consummation as well as consent may be manifested in any form. What can this mean except exactly what I have claimed for it? And if in any form, why not by secret cohabitation, where the husband claims the right, believing himself a husband, and the wife submits, because she believes herself a wife?" (75 Cal. 51.)
The points ruled as above stated arose in the case and were argued by counsel. They cannot in any respect be regarded as obiter dicta.
The points decided in a cause by this court constitute "the law of the case."
This has been frequently held by this court. It was substantially so held in the case of Dewey v. Gray, 2 Cal. 377, which was the first case in this court in which the doctrine of the law of the case was applied. In Clary v. Hoagland, 6 Cal. 685, the court (by Murray, C. J.) said: "It is well settled that when a case has been taken to an appellate court and the judgment obtained on points of law involved, such judgment, however erroneous, becomes the law of the case, and cannot on a second appeal be altered or changed." (6 Cal. 687, 688.) "A previous ruling by the appellate court," said the court, by Field, *Page 687 J., in Phelan v. San Francisco, 20 Cal. 45, "upon a point distinctly made, may be only authority in other cases, to be followed and affirmed, or to be modified or overruled, according to its intrinsic merits." The same proposition is stated again as sound law in the opinion inLeese v. Clark, 20 Cal. 416, 417; and it is further said in that opinion: "The decision is no longer open for consideration, whether right or wrong; it has become the law of the case." (See cases cited inLeese v. Clark, supra, and Mulford v. Estudillo, 32 Cal. 131;Megerle v. Ashe, 47 Cal. 632; Jaffe v. Skae, 48 Cal. 540;Donner v. Palmer, 51 Cal. 636; Heinlen v. Martin, 59 Cal. 181.) It is true that what has been decided as the law of the case is applicable only while the facts are the same, substantially unchanged.(Megerle v. Ashe, supra; Donner v. Palmer, supra.)
It is contended here, conceding the rule as to the "law of the case" to be as stated above, that it does not apply to this case, that it only applies where the cause is sent back to the court a qua for some further proceeding to be there had in it, as when a judgment or order denying a new trial is reversed, and the cause remanded to be again tried.
In Leese v. Clark the question of the conclusiveness of the former decision in this court is considered. It is there said: "But in the case in which the decision is made, it is more than authority, — it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves." After stating that this has been the uniform doctrine of this court for years, and after repeated examinations and affirmations, it cannot be considered as open to further discussion, and that it is the doctrine of the supreme court of the United States, and of the supreme courts of several of the states, citing several authorities for the statements made, the opinion proceeds thus: "And the reason of the doctrine is obvious. The supreme court has no *Page 688 appellate jurisdiction over its own judgments; it cannot. review or modify them after the case has once passed, by the issuance of theremittitur, from its control. It construes, for example, a written contract, and determines the rights and obligations of the parties thereunder, and upon such construction it affirms the judgment of the court below. The decision is no longer open for consideration. Whether right or wrong, it has become the law of the case. This will not be controverted. So, on the other hand, if upon the construction of the contract supposed this court reverses the judgment of the court below and orders a new trial, the decision is equally conclusive as to the principles which shall govern on the retrial. It is just as final to that extent as a decision directing a particular judgment to be entered is as to the character of such judgment. The court cannot recall the case and reverse its decision after the remittitur is issued. It has determined the principles of law which shall govern, and having thus determined, its jurisdiction in that respect is gone. And if the new trial is had in accordance with its decision, no error can be alleged in the action of the court below."
The same rule is laid down in Ex parte Sibbald v. United States, 12 Pet. 488. In that case the supreme court had entered its decree reversing in part the decree of the superior court of East Florida inUnited States v. Sibbald, 10 Pet. 313-325, and had remitted to the superior court its mandate to be executed. The lower court refused to execute the mandate, and the party concerned (Sibbald) proceeded by petition (there were two) to procure the enforcement of the mandate of the court.
On the hearing of these petitions Mr. Justice Baldwin delivered the opinion of the court. He said: —
"Before we proceed to consider the matter presented by these petitions, we think proper to state our settled opinion of the course which is prescribed by the law for this court to take, after its final action upon a case brought *Page 689 within its appellate jurisdiction as well as that which the court, whose final decree or judgment has been thus verified, ought to take.
"Appellate power is exercised over the proceedings of inferior courts, not on those of the appellate court. The supreme court have no power to review their decisions, whether in a case at law or in equity. A final decree in chancery is as conclusive as a judgment at law. Both are conclusive on the rights of the parties thereby adjudicated.
"No principle is better settled or of more universal application than that no court can reverse or annul its own final decrees or judgments for errors of fact or law after the term in which they have been rendered, unless for clerical mistakes, or to reinstate a cause dismissed by mistake, from which it follows that no change or modification can be made which may substantially vary or affect it in any material thing. Bills of review in cases of equity, and writs of error coram vobis at law, are exceptions which cannot affect the present motion.
"When the supreme court have executed their power in a cause before them, and their final decree or judgment requires some further actto be done, it cannot issue an execution, but shall send a special mandate to the court below to award it. Whatever was before the court and is disposed of is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. They cannot vary it or examine it for any other purpose then execution, or give any other or further relief, or review it upon any matter decided on appeal for error apparent, or intermeddle with it further than to settle so much as has been remanded. After a mandate no rehearing will be granted. It is never done in the house of lords; and on subsequent appeal, nothing is brought up but the proceeding subsequent to the mandate." (12 Pet. 491.) *Page 690
The above, it will be observed, is stated as the settled opinion of the supreme court of the United States as to the course they should pursue upon its decree or judgment after its final action upon a case brought within its appellate jurisdiction.
In the case cited the trial court had taken no action upon the mandate sent down to it. The supreme court held it, nevertheless, as binding on itself as though it had. It laid down the general rule that no court can interfere with its own judgments after its jurisdiction over them has ceased (except in a few cases, neither of which appears here); that when the cause has gone beyond its jurisdiction it can neither reverse nor annul its decree or judgment for any errors, whether of fact or law; that, in such a case, the judgment is just as binding on the higher as on the lower court.
The ruling in Sibbald's Case was approved in Washington BridgeCompany v. Stewart, 3 How. 426, and is, no doubt, the settled law of the United States supreme court. There are other cases to the same effect in that court which need not be referred to. They can be readily found in the digests.
We think it settled law in this state, fixed and beyond debate, that the points involved in a cause finally decided by this court are beyond its jurisdiction; that it has no power to reverse or modify its judgment after the case has passed by the issuance of its remittitur from its control; that such decision, whether right or wrong, is binding on this court and every other court; that it is a final adjudication, from the consequences of which this court cannot depart, nor the parties relieve themselves. As was said by Field, J., speaking for the court inLeese v. Clark, supra: "The court cannot recall the case and reverse its decision after the remittitur is issued." (20 Cal. 417.) Its jurisdiction over the case is gone.
The contention of the defendant limiting the applicability *Page 691 of the rule of the law of the case finds no countenance in any decision of this court.
The remittitur has long since issued on the former appeal, and cannot now be recalled. The power of this court in regard to that appeal has long since ceased.
In none of the cases cited by counsel for appellant (Walden v.Murdock, 23 Cal. 540; 83 Am. Dec. 135; Fulton v. Hanna, 40 Cal. 278,281, and McDonald v. McConkey, 57 Cal. 325) is there anything, in my judgment, adverse to what has been said above. They are all in harmony with it. Where a judgment is affirmed, a new trial may still be granted after such affirmance on errors of law not considered or passed on in affirming the judgment, but a new trial cannot be granted when the court, in order to grant it, contravenes what has been adjudicated by the previous decision.
The numerous cases decided by this court with regard to the law of the case may be easily found by reference to the digests; what has been said above is in line with what is decided in them.
We pass to the points made on the insufficiency of the evidence to justify the decision.
It is urged that the second finding, that "the marriage contract" was signed by William Sharon, cannot be held by this court to be justified by the evidence.
In limine, I will say that in my judgment the opinion of the learned judge in this case, before whom it was tried in the superior court, is not a part of the record on this appeal. That opinion is not in the transcript on this appeal, and this court cannot look into it in another record. The record on the former appeal can be looked into to ascertain what facts were then before the court, so as to see to the correct application of the rule that such decision is the law of the case.(McKinley v. Tattle, 42 Cal. 576.) We can look into the opinion of Judge Sullivan in this case when it relates to any question of law arising in this case, or in any other case, just as we *Page 692 may examine the opinions or judgments of any court, to enable the court to determine what the law is applicable to the facts of a case which is before it for determination.
But we cannot look into the opinion of Judge Sullivan to ascertain in what mode he dealt with the credibility of witnesses, or what weight or value he accorded to the evidence before him in deciding this case. To pass on any point in the case, whether relating to insufficiency of the evidence or any other matter debated, we are confined by the law to that which may be found on the pages of the transcript furnished to us on this appeal.
Now, in regard of the evidence as to the signing of the marriage contract by William Sharon, the plaintiff testifies that he signed it in her presence after it was written. Sharon testified that he never signed it. This presents a substantial conflict.
The circumstantial evidence bearing on the issue of the execution of this paper does not remove this conflict. That evidence is also conflicting. Whatever view is taken of the evidence on this issue, a substantial conflict is presented. Hence there can be no reversal of the order on the ground that the evidence is insufficient to justify the second finding.
Granted that it does appear on a comparison of the finding and the evidence that the court below must have found that the plaintiff testified falsely as to Sharon's introducing her as his wife, still the law does not require the rejection of her testimony on other points. The rule for the guidance of the trial court is thus expressed in the code: "That a witness false in one part of his testimony is to be distrusted in others." (Code Civ. Proc., sec. 2061.) I cannot go so far as to say that this distrust was not exercised, and that the credibility of the plaintiff was not weighed by the trial court according to the mandate of this rule. The credit to be given to the witness was for the court below, and not for this court. *Page 693 Admitting that this court might go further on an extreme case, I cannot say on this record that this is such a case.
It is also urged that the evidence is insufficient to justify the third finding, which is in these words: —
"That afterward, and about the day of September, 1880, the plaintiff and defendant commenced living and cohabiting together in the way usual with married people, although their cohabitation was kept secret, and so continued for the space of more than one year, and down to the twenty-fifth day of November, 1881, and during all of said time the plaintiff and defendant mutually assumed toward each other marital rights, duties, and obligations."
In the sense in which cohabitation is regarded by the counsel for the appellant, the evidence does not show it. There is no evidence of such cohabitation as is defined in Yardley's Estate, 75 Pa. St. 211; orOhio v. Connaway, Tapp. 59; or in Calef v. Calef, 51 Me. 366; 92 Am.Dec. 549; or in Bouvier's Law Dictionary, under the word Cohabit; or in any other case or book of authority. The evidence does not show any "living together" by the parties ostensibly as husband and wife. (See 1 Bishop on Marriage and Divorce, 6th ed., 777, and note 2.)
But the evidence does establish what was found by the trial court, and the court on the former appeal held this was, with other matters found, sufficient to constitute marriage.
As appropriate to this question, and to show what was decided on the former appeal in this case, in addition to what has been said previously in this opinion and the quotations from Justice McKinstry's opinion, I will refer to some other portions of the opinion. In it it is said: —
"The word `consummation,' whenever used as something different from the mere consent or formal solemnization of marriage, had always been held to mean `simply sexual intercourse, — copulation, — nothing more *Page 694 nor less.' Section 57 of our Civil Code provides how this consummation may be proved."
On page 33 it is said: "There are two principal ends of marriage, — a lawful indulgence of the passions, to prevent licentiousness, and the procreation of children under the shield and sanction of the law. (Stewart on Marriage and Divorce, sec. 103.) The intercourse, which is the means by which these ends are attained, is both a right and duty. Evidence that the man and woman have enjoyed the right and discharged the duty, whether direct or consisting of proof of another fact from which the intercourse may be inferred, — as cohabitation, — is, when preceded by present consent to marry, evidence that the parties to the contract have actually assumed all the duties incident to marriage."
Taking the paragraphs quoted together, I think it was intended to decide, and that the court did hold and decide, that secret sexual intercourse following a present consent to marry consummates the marriage. Cohabitation is only regarded as a circumstance proving such intercourse, while it is said that this intercourse may be proved by direct evidence. The court intended to decide that the consent and the intercourse above stated consummated the marriage, and was an assumption of marital rights, duties, and obligations. The cohabitation spoken of in the opinion of Justice McKinstry means nothing but occupying the same bed. In determining what is decided in a cause, we must give to the words used the sense in which they were employed in it; and in my judgment the word "cohabitation" is used in the opinion to denote what is stated above. Cohabitation was only evidence of what was regarded as consummation, viz., the intercourse mentioned above. In my opinion it was decided, and the court intended to decide, that if the parties consented to marry per verba de præsenti, this consent was followed by sexual intercourse, though everything in relation to the marriage was enacted by *Page 695 them under "a cloak of darkness," that the marriage was perfected, became verum matrimonium. The decision of the court may be expressed by a little change in the maxim, Consensus, non concubitus, facitnuptias. Let it be read, Consensus et concubitus faciunt nuptias, and it will express the conclusion reached.
In this view, the kind of cohabitation spoken of by counsel becomes immaterial. The court having decided as is explained above, there was no necessity for the cohabitation contended for to constitute the marriage.
The evidence does establish such cohabitation as was found by the court, and does not establish the cohabitation urged in the argument of appellant's counsel. The court has to apply the law of the case to the facts which are established by the court. This rule must be applied in all the proceedings in the case. The evidence establishes the same facts as the court acted on, and the law of the case must always be applied when the facts are unchanged. To fail to do so would be a mere evasion, and in making such application to the evidence it must be held to prove all the cohabitation required by law.
The opinion relative to this question was, in my judgment, erroneous. But the court is controlled by the law of the case, and cannot, in this case, reverse the former decision.
The only question left open, in my judgment, by the former decision was whether the sexual intercourse between the parties in this case was licit or illicit. If it was had in pursuance of the present consent, it was licit; if not, it was illicit. I can find no evidence in the record that this intercourse was disconnected from the contract, and not in pursuance of it. I will add that in considering this point the contract must be regarded as genuine, in obedience to the former decision. It is argued that the decision herein is against law; but the evidence, as we have seen, establishes the facts as they are found, and the court on the former appeal held that *Page 696 the plaintiff was entitled to have judgment entered on them in her favor. It may be said, then, that on the same facts the court has held that the decision is not against law, for it affirmed a judgment entered on them. The opinion on the former appeal compels an adverse ruling on the contention that the decision is against law.
On the question of the illegality of the marriage contract by reason of the clause of secrecy, I cannot perceive that the question is changed on this appeal from what it was on the former appeal. In fact, the same point was made and argued on the former appeal as now, and determined adversely to the contention of appellant. The court there held that the marriage contract was not rendered void by the clause of secrecy, and to that ruling this court must defer.
I concur in the opinion of Justice Works as to the decree of the circuit court of the United States in Sharon v. Terry, and in what is said as to the ruling in regard to the admission of the testimony of Martha Wilson and the exclusion of that of the attorney, Hornblower.
As regards the question put to the witness Mrs. Samson, I am inclined to think that the court had a right in its discretion to allow the question to be put, the witness having the privilege of refusing to answer it. In saying this I do not intend to say that People v.Hamblin, 68 Cal. 102, is not properly decided. The decision there may be sustained on the principle which ruled People v. Crapo, 76 N. Y. 288; 32 Am. Rep. 302. As the order is reversed and the cause cannot be tried again, it is not necessary that I should express a decided opinion upon the point (the question put to Mrs. Samson). I prefer to reserve the question for further examination and consideration when the same or a like question shall come before this court.
I rest my concurrence in the reversal of the order upon the exclusion of the testimony of the witness Horn-in *Page 697 the cause, viz., the genuineness of the marriage contract. The defendant was clearly injured by its exclusion, and therefore I am for reversing the order denying the motion for a new trial.