On Rehearing. On a rehearing, the cause has been again orally argued, particularly on the facts. The varying views of the justices remain as before. It has been contended that to warrant recovery in a case of this kind there should be more than a preponderance of evidence. Without deciding that question, the majority adhere to the former conclusion as supported by clear and convincing evidence.
It is now contended by appellees that the judgment must be affirmed for the reason *Page 565 that the complaint will support none other. The point made is that 1929 Comp. St. § 154-112, vacating wills as to unmentioned children, does not apply in the case of illegitimate children.
If this proposition be sound, the complaint is incurably bad, and a judgment letting the illegitimate children in to share in the estate, contrary to the terms of the will, would be inherently and fundamentally erroneous. It would be such an error as it would be our duty to correct, even though never brought to the attention of the trial court, and brought to our attention only on motion for rehearing. This appellants admit.
But it is equally apparent that the proposition now advanced stared appellees in the face at the very outset. Orderly procedure and fairness to court and litigants required them to raise it by demurrer. If they are now right, much time and great expense have been consumed in two trials and two appeals in a controversy over facts which, if finally adjudged in appellants' favor, would not warrant any relief. Appellants contend that "the law of the case," as settled on the former appeal, requires an overruling of the contention appellees now make.
If "the law of the case" is established only by express pronouncement, as a minority of the courts hold (Annotation, 1 A.L.R. at page 733), there is nothing to appellants' contention. But, by great weight of authority, the doctrine applies in subsequent appeals to questions that "might have been, but were not, raised or presented on a prior appeal." 1 A.L.R. at page 725. And this is well established as the rule in this state. Armijo v. Mt. Elec. Co., 11 N.M. 235, 67 P. 726; Davisson v. Citizens' Nat. Bank, 16 N.M. 689, 120 P. 304; State ex rel. Garcia v. Board of County Com'rs, 22 N.M. 562, 166 P. 906, 1 A.L.R. 720. It applies even to the contention here made that the complaint fails to state a cause of action. Arizona C.R. Co. v. Denver R.G.R. Co., 16 N.M. 281, 117 P. 730; Davisson v. Citizens' Nat. Bank, and State ex rel. Garcia v. Board of County Com'rs, supra. And we have frequently said that on the second appeal nothing was before the court for review except the proceedings subsequent to the first mandate. Davisson v. Citizens' Nat. Bank, supra; McBee v. O'Connell, 19 N.M. 565,145 P. 123; State ex rel. Garcia v. Board of County Com'rs, supra.
In the case at bar, after they had answered the complaint and after appellants had replied, appellees filed a demurrer raising the fundamental question now urged. It seems never to have been brought on for ruling. The parties went to trial and appellants introduced their evidence and rested. Appellees then demurred to the evidence, and, among other grounds, specified, irregularly of course, that illegitimate children are not within the purview of 1929 Comp. St. § 154-112. The trial court sustained that demurrer on the single ground of the insufficiency of the evidence of general and notorious recognition. We reversed the resulting judgment, holding that such evidence was sufficient as against demurrer. The second trial was concerned with nothing but the facts of parentage and recognition. On the second appeal, *Page 566 additional counsel for appellants having been recruited, there was included in the brief in chief a somewhat elaborate argument to demonstrate that illegitimate children are contemplated and embraced within the statute. This argument was ignored by appellees. They submitted the case on the single proposition that the facts as to parentage and recognition had been correctly found. On the decision of the second appeal, taking notice of the illness of appellees' counsel, we afforded unusual opportunity for a motion for rehearing and welcomed the appearance of new counsel, who now press the contention.
This recital demonstrates that the question we are now asked to decide has not been overlooked by appellees. It has either been held in reserve, or been abandoned as without merit. It has been waived if waiver is possible. Considering the fundamental nature of the question, the silence of the trial judge when it was presented to him, though irregularly presented, must be deemed an adverse ruling upon it. Our present appellate practice afforded appellees ample means to have it reviewed. N.M. App. Proc. Rule XV, § 2.
We have never been unmindful of the presence of this question at the very threshhold of the case. We have been at pains so to frame our opinions as not to establish precedent. But, for this particular case, we have accepted the law to be as manifestly acquiesced in by counsel. For purposes of this case there has been "necessarily involved" in both of our opinions a holding adverse to the contention now made. Cf. U.S. v. Denver R.G.R. Co., 11 N.M. 145, 66 P. 550.
The recital demonstrates also that, having in mind the necessities for orderly procedure and for an end of litigation, every reason here exists for applying the doctrine of "the law of the case." It demonstrates that appellees have had their day in court.
It is to be regretted that there will remain open a question which, if presented sooner, might have led to a different result. The doctrine presupposes that very thing. "Right or wrong," the "law of the case" is controlling, as we have often expressed it. U.S. v. Denver R.G.R. Co.; McBee v. O'Connell; Davisson v. Citizens' Nat. Bank, supra; Dye v. Crary, 13 N.M. 439,85 P. 1038, 9 L.R.A. (N.S.) 1136. And see First Nat. Bank v. Cavin,28 N.M. 468, 214 P. 325; Farmers' State Bank v. Clayton Nat. Bank,31 N.M. 344, 245 P. 543, 46 A.L.R. 952.
In Farmers' State Bank v. Clayton Nat. Bank, 31 N.M. 344,245 P. 543, 46 A.L.R. 952, while refusing to extend the doctrine to what was not technically a subsequent appeal, and while referring to what a writer had characterized as "a considerable tendency, and probably a growing one," to except from the doctrine a decision "clearly erroneous," we recognized the rule as so well established here that if the case then before us had been a subsequent appeal, we would have been bound by the former decision. There we briefly summarized the reasons for and against the doctrine. *Page 567
Citing a few of the decisions from the annotation mentioned in the case last mentioned (1 A.L.R. 1267), appellees urge that the rule is not inflexible nor invariable, and that it is within our discretion to apply it or not. We have the power, no doubt, to vary the doctrine. But, as we conceive, it is not only the part of wisdom, but a high duty, to pursue a consistent course. If considerations of justice in the particular case are to be paramount, there is no room for "the law of the case." If we are here deterred by the fear that what we have heretofore assumed, and what is necessarily involved in what we have heretofore decided, may be wrong, we abolish the doctrine itself.
This case does not present that feature which gave concern to the courts whose decisions are collected in the note just mentioned. What we here hold to be "the law of the case" is not "clearly erroneous." The scope of the argument; the voluminous briefs, aggregating nearly 500 pages; the confidence each of the able counsel manifests in the soundness of his contention — all show that the question is a close one.
Pointing out that counsel for appellants argued the question in their brief in chief on the second appeal, as already noted, appellees suggest that they invited full consideration of it and waived "the law of the case." Appellants did no doubt anticipate the present contention and invite appellees to present it. If the invitation had been accepted, it would have been a waiver of the point in so far as it was theirs to waive. If that waiver would have warranted the court in entertaining the proposition at that time, it does not follow that it warrants us in entertaining it now, after appellees have passed up the invitation and the opportunity, and have speculated upon their chances of winning otherwise.
We accordingly adhere to our former respective opinions, and to the original disposition of the appeal.
SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.
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