(dissenting).. The real estate upon which the. Supreme Court held that the bank had a lien is being administered in bankruptcy. Before the successful litigant can reap the fruits of its victory, the court below must act. Because the Supreme Court recognized this obvious fact and remanded the cause for further proceedings, I do not think that it intended to give the trustee another try at showing that no lien existed.
With all due deference to my Brethren, I cannot see that the view that that inquiry is still open is supported by any of the Supreme Court eases cited in the majority opinion. Some of them, such as In re Sanford Fork & Tool Co., 160 U. S. 247, 16 S. Ct. 291, 40 L. Ed. 414; Mutual Life Insurance Co. v. Hill, 193 U. S. 551, 24 S. Ct. 538, 48 L. Ed. 788, and Wells Fargo Co. v. Taylor, 254 U. S. 175, 41 S. Ct. 93, 65 L. Ed. 205, came up upon questions of pleading. Under such circumstances, a' reversal puts the case back in the position it would have been had the error of the trial court not been made. In re Louisville, 231 U. S. 637, 645, 34 S. Ct. 255, 58 L. Ed. 413, and Louisville v. Cumberland Telephone Co., 231 U. S. 652, 34 S. Ct. 260, 58 L. Ed. 419, wore rate eases. The trial court had granted a preliminary injunction against the enforcement of an ordinance .before it had been tested in practice. The Supreme Court thought that upon the conflicting testimony, the result was too near the dividing line to make actual experiment unnecessary. It therefore reversed the decree without prejudice and sent the cause back for further proceedings. In this state of affairs, it naturally held that the District Judge, in retaining the bill to inquire as to the actual operation of the ordinance, did precisely what it intended he should do.
In Arkadelphia Co. v. St. Louis S. W. Ry. Co., 249 U. S. 134, 39 S. Ct. 237, 63 L. Ed. 517, also a rate case, the lower court had granted an injunction and required the plaintiff to give bond. The Supreme Court dissolved the injunction and directed that the bill should be dismissed, but it nevertheless subsequently sustained the action of the lower court in entering decrees on the bond in favor of shippers who had been injured by the injunction through having to pay, during its continuance, higter rates than should properly have been exacted from them.
In Smith v. Adams, 130 U. S. 167, 9 S. Ct. 566, 32 L. Ed. 895, a territorial district court of Dakota sustained a demurrer to a petition attacking the validity of a county seat election. Upon appeal the Supreme Court of the territory held that the petition was good and that the demurrer should be overruled, and it remanded the case for further proceedings. The Supreme *244Court dismissed an appeal from this" latter decision on the ground that it was' not a final judgment.
The facts of these cases seem to me to be remote from those before us. Before referee, District Court, Circuit Court of Appeals, and the Supreme Court, the bank and the trustee have, for years, litigated wheth-' er the former had the lien claimed. The decision of the highest court of the nation is in its favor. I do not believe that the trustee can now begin the fight over again merely because by design or by inadvertence,, he originally failed to allege or to prove an essential element of his ease. If it becomes generally understood that cases can be tried in that piecemeal fashion, the delays and expenses of litigation will be greater than ever, and wealthy and obstinate individuals will find a powerful weapon of oppression ready at hand. No one can doubt that cases should be decided upon their merits rather than upon technicalities, but it is no less true that justice, postponed is ofttimes jus; tice denied.