Since the decision in this case the appellee has moved for a *Page 607 re-argument. The judgment was reversed for error found in the plaintiff's first prayer, which had been granted by the trial Court. The reasons for the reversal are stated in the opinion of the Court, and need not be restated herein. The ground of the motion for the re-argument is that the effect of the decision in the former case of Belt R.R. Co. v. Sattler, 100 Md. 306, was to make that instruction the law of the case, binding both upon this Court, and the Court below, upon the subsequent trial. This position, it is contended by the appellee, is supported by the authority of the case of Mahoney v. Mackubin, trustee,54 Md. 268. An examination of the records will show that the cases are wholly dissimilar. In Mahoney's case, the question as to the allowance of commissions to Mr. Mackubin was under consideration. The Court found that in a prior case between the same parties (52 Md. 357), upon an appeal from an order ratifying a sale, the Court had distinctly decided that Mr. Mackubin was entitled to the commissions, and therefore, it was held that the question could not be again litigated.
The Court said: "But as the case now stands we regard the question of the allowance of commissions as already conclusively adjudicated. The order ratifying the sale allowed the mortgagee, or trustee, "the usual commissions," as well as expenses. From that order an appeal was taken by the present appellant, Mahoney, and on that appeal that order was affirmed by this Court, and the cause was remanded. The affirmance of that order makes it the law of the case in all future proceedings therein, and binding not only upon the Court below, but upon this Court." But in the case of the Belt R.R. Co. v. Sattler, 100 Md. 306, the judgment was reversed solely for errors found to have been committed in the rulings as to the admissibility of testimony. The prayer was not affirmed, approved or discussed, and inasmuch as it was clearly wrong for the reasons stated in the opinion in the subsequent case, it should not have been granted, unless it had been approved by the Court on the former appeal, and this the record shows was not done. Motion overruled.
(Decided April 26th, 1906.) *Page 608