(dissenting). I am unable to agree either to the conclusion or to the reasoning of the majority in this case, and I especially dissent from the views expressed in the third division of the opinion.
Reduced to its last analysis, the question is, how ¡many trials may a defeated party have in this court? .'May he take advantage of a statute relating to new trials ■in the district court, and have an opinion of this court superseded and overruled, and the case again reheard, ¡after one petition for rehearing has been submitted and overruled? This application is based upon the same alleged errors committed by the trial court as on the original trial from which the former appeal was taken. Indeed, the abstract on that appeal was attached to, and made a part of, the application in this case. The petition in this case presents no new facts or propositions of law. It is conceded that the basis of this proceeding is the alleged errors of the court committed on the original trial, from which an appeal was taken, which resulted in an affirmance in this court. A petition for a rehearing was filed and overruled, but, nothing daunted, plaintiff proceeded to file his abstract in the trial court, and to ask that court to reverse this court because of error committed <on the original trial. This the trial court refused to do, ¡and, as I think, properly. But the majority say that, notwithstanding we have once affirmed the judgment and overruled a petition for a rehearing, nevertheless in actions of this kind there may be a second rehearing on the same ¡record, because, forsooth, the case was affirmed pro forma *617.■and no judgment has been entered here. I had always supposed that a judgment of affirmance here was a finality, no matter what the grounds of the decision. If this tribunal is not a court of last resort, then I have misinterpreted the Constitution. In Gray v. Coan, referred to by the majority, it is said: “Ihis court is required-by law to pronounce the final judgment in the case. If this were ■not so., a party could, after a case was affirmed by this •court, have a new trial granted below, which would be an •unheard-of proceeding. ” I do not exactly understand ■what is meant by a “pro forma affirmance.” A case is ■either affirmed, reversed, or dismissed by this court. If .affirmed, no matter what the ground, the judgment is a •finality, and is res adjudícala not only of every question presented, but of every one which might have been urged. This is fundamental. See 3 Cyclopedia, pages 494, 495, and cases cited; Miller v. Bernecker, 46 Mo. 194; Finch v. Hollinger, 46 Iowa, 216; Adams Co. v. B. & M. R. R., 55 Iowa, 94; Steel v. Long, (Iowa) 84 N. W. Rep. 677. .Herein, as I view it, is the fundamental difficulty with the majority opinion. A judgment of affirmance for the reason that proper steps were not taken to secure a hearing on the merits is conclusive as a former adjudication, and may be pleaded as such, although the decision of this •court, if the case could have been heard upon the merits, would have been different. Trescott v. Barnes, 51 Iowa, 409. When the judgment of a trial court is affirmed, this ■court may send the case to the court below to have the same carried into effect, or it may issue the necessary process for this purpose, as the party may require. Code, section 4143. And execution may issue from this court. Code, section 4153. From this it follows that a judgment of affirmance is something more than a mere form. An affirmance may be ordered without prejudice to appellant. White v. Poorman, 24 Iowa, 108. But in the absence of such an order the affirmance is conclusive, and it, in efleet, *618becomes the final judgment in the case. Where a case is affirmed, a mandate or procedendo, as it is called under our procedure, must issue to reinvest the trial court with, jurisdiction. Messenger v. Marsh, 6 Iowa, 491; 3 Cyclopedia, page 478, and cases cited.
From the earliest history of this court it has been the practice to issue 'proeedendoes in cases of affirmance unless a decreé is rendered in this court. Indeed, we have universally held that after appeal to this court the trial court loses jurisdiction. Stillman v. Rosenberg, 111 Iowa, 369, and cases cited. The appeal operates to give this-court jurisdiction until the final word is spoken, and when, spoken there is no power either in the legislature or in an inferior tribunal to annul or in any manner impair the final conclusion. A judgment of affirmance on motion is-just as sacred and as much res adjudieata as if on the merits. I think the majority fail to distinguish the doctrine of stare deeisis from that of res adjudieata. When a case is once adjudicated by the highest tribunal in the state, that should be the end of it, no matter what the reasons for the decision. The reasons given for a particular conclusion only become important when considering the question of stare deeisis. The majority, as I understand it, admit that, had we passed upon the questions Resented by the first appeal, that would have ended the matter. If that be true, the same result should follow an affirmance on motion, under the doctrine of Trescott v. Barnes and Finch v. Hollinger, supra. My views are so fully expressed by Orton, J., in his dissenting opinion in State v. Cir. Court, 71 Wis. 595 (38 N. W. Rep. 192), which was afterwards concurred in by the entire bench in Ean v. C., M. & St. P. R. R., 101 Wis. 166 (76 N. W. Rep. 329,) that I need not do more than refer to that learned exposition of the law, and to the cases therein cited. As illustrating the doctrine prevailing in Illinois, see Hawley v. Simmons, 102 Ill. 115; Smyth v. Neff, 17 N. E. Rep. *619702.. In the case from Indiana cited by the majority, Judge Elliott dissented. The Wisconsin case in 61 Wis. 427 (21 N. W. Rep. 299) is based on a statute expressly authorizing new trials after appeals. See section 3029 of the Revised Statutes of that state. The rule in Wisconsin is well stated in the Eon Oase, supra, and,- for a full collation of authorities, see dissenting opinion of Orton, J., heretofore cited. The section of the statute relied upon by the majority has reference, as I view it, to new trials in the district court, and not to rehearings in this court. The consequences to be feared from the holding of the majority are so clearly pointed out in the opinion of Orton, J., and the reasons for adopting a contrary rule so apparent, that I am impelled to dissent from the conclusions reached. ■ The dangers to be apprehended are also pointed out-by Sedgwick & Wait on Trial of Title to Land, sections 608, 609. Even in the old action of ejectment, the doctrine of res adjudicata applied when the parties were identical. Newell on Ejectment, pages 809, 810. The majority, in my opinion, overlook or underestimate the effect of a judgment of affirmance by this court, and leave the door open for second appeals and diverse holdings in every case involving title to lands.
For these reasons, I respectfully dissent from the conclusions reached. I am authorized to say that Me. Justice Sherwin concurs in this dissent.