The respondents set forth two general grounds. The first deals with the holding as to the jurisdiction of the district court to determine the issue involved in the appeal from the order of the county court.
With reference to this it is sufficient to say the petition practically amounts to "a restatement or reargument of matters contained" in their brief and thus already decided. This matter was presented fully and argued strenuously. Under rule 16 such matter cannot be made a basis for rehearing.
The second point involves "the law of the case"; the claim being this was settled in Borner v. Larson, 70 N.D. 313, 322, 293 N.W. 836. This requires some clarification.
The doctrine of "law of the case" is based upon the theory of res judicata and necessarily applies to the issue determined. Certainty and orderliness require some such doctrine. As said in Wittmayer v. Security State Bank, 57 N.D. 934, 224 N.W. 303:
"Questions fairly raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal, they become the `law of the case', and are binding upon the parties in all subsequent stages of the litigation."
In Jacobson v. Mutual Ben. Health Acci. Asso. 70 N.D. 566, 570,296 N.W. 545, 549, we say:
"The decision on the former appeal became, and is, the law of the case and the questions then determined are not subject to review on this appeal."
But such rule is applicable only to the question actually before the court and actually decided. In Bryson v. Crown Oil Co.185 Ind. 156, 112 N.E. 1, it is stated,
"The doctrine of the `law of the case,' while conclusive, like a former adjudication as to all matters properly within its scope, cannot be invoked, except on questions which were actually presented and considered at the former trial, or on appeal from the judgment thereon."
In Walling v. Jersey Cent. Power L. Co. 123 N.J.L. 37,7 A.2d 865, 866, the court was confronted with the question as to the extent of a former decision and therein the court said, "To the extent of the decided issue that determination is, of course, *Page 122 controlling; . . ." The court limited the application of the rule to the issue before it in the former case.
In St. Louis S.F.R. Co. v. Conarty, 124 Ark. 454, 188 S.W. 310, it is held: "Whatever is before the court on appeal, and disposed of, and only that, is the `law of the case' on a second trial." This rule is stated in 5 CJS 1499, "It is a general rule that the decision of an appellate court is the `law of the case' in further proceedings in the cause . . . in all subsequent stages of the action or proceeding. . . ." But the same authority (page 1503) shows this rule of "law of the case does not extend to matters not decided, even though the appellate court may have made some statements or remarks with respect thereto. . . ."
In Borner v. Larson, 70 N.D. 313, 293 N.W. 836, supra, the issue before the court was whether the appellees here were entitled to name the administrator of the estate of Fritz Gappert deceased; the claim being founded solely upon the theory they were the adopted children of the decedent. If the adopted children, they had the right to name the administrator. The record in that case showed "there was no evidence whatever showing compliance with the statutory requirements relative to adoption." Because of this they were not entitled to the administration of the estate. "Not being entitled to administration they are not entitled to name an administrator." This was the only matter determined.
The opinion however shows that during the proceedings and during the argument there were "general statements to the effect that the children were taken for adoption, and were to be adopted and to be treated as the children of the decedent." Because of this it was evident that those claiming to have been adopted were claiming an interest in the estate and we point out that "the question of the right to administer an estate and the question of an interest and share in an estate are, in this case, two separate and distinct matters." We say in the opinion: (page 322)
"This decision in no way determines that the respondents have no interest in the estate, and therefore, this matter is left *Page 123 undetermined. If proof of an executed contract to adopt isforthcoming, then the rights of the respondents thereunder willbe determined at the time of the settlement and distribution ofthe estate."
The claim of the respondents here is based upon this last sentence; that, in effect, we stated as the "law of the case" that the county court, at the time of the settlement and distribution of the estate, would determine the existence, validity and extent of this alleged "executed contract of adoption."
The "law of the case" is the determination of the court in regard to the issue that was before the court. The issue was not the existence of a contract to adopt or the rights of the respondents thereunder, but were they adopted children. This court was careful to show there was nothing in the opinion to preclude them from asserting any interest they might have in the estate — this assertion to be in proper form and at the proper time. In the sentence relied upon, there is no holding that the county court could determine the issues arising upon the claim of an executed contract to adopt.
In Hudson v. Riley, 114 Kan. 332, 219 P. 499, the court in its syllabus states:
"Nor did any ruling or comment made in the decision of a former appeal from the granting of a motion for a new trial of the case become res judicata as to the facts developed on the second trial, and, even if an erroneous view had been taken, it would still be competent for the court to correct the error, where it can be done before the litigation is finally terminated."
In Breuer v. Arenz, 209 Wis. 435, 245 N.W. 116, the court makes reference to a former opinion on the same subject. The Wisconsin court had made a statement as to the position which the plaintiff might be required to take, or could take, in a subsequent action, and in the second case it was claimed that such statement became a part of the "law of the case" and was, "Res adjudicata upon the question of whether an expressed contract existed between the parties, as it is claimed that the decision on the appeal in that case adjudicated the non-existence of any *Page 124 such contract, as a result of which the present judgment is without any basis or foundation."
However the court said:
"There is certain language in the opinion which, taken by itself, suggests the conclusion of this court that the only theory upon which the plaintiff could recover was that of liability for money had and received. However, the judgment of the court remanded the case with directions to grant a new trial. The judgment of the court did not limit the new trial to the cause of action stated for money had and received. Moreover, the opinion taken as a whole reveals no intention on the part of this court to so limit the new trial, nor does it indicate the conclusion of this court that the plaintiff had no cause of action upon express contract."
The situation which confronted the Wisconsin court in the second case is similar to the one here. The issue as to the effect of an agreement to adopt was not before this court in the first case and it is clear this court was not laying down any rule as to how or where interested parties could present proof in regard to any claim which they may have had.
From a casual reading of that sentence standing alone, the respondents inferred the rights to be determined "at the time of the settlement and distribution of the estate" might be determined by the county court. From this slender thread the respondents suspend their claim they had the right to assume this was the "law of the case" laid down in Borner v. Larson, 70 N.D. 313, 293 N.W. 836. But even such casual reading of the opinion should show this was not the issue before the court, it was not the matter determined and therefore any such implication drawn from the sentence could not be "the law of the case."
The petition is denied.
CHRISTIANSON, Ch. J., and NUESSLE, BURKE and MORRIS, JJ., concur. *Page 125