(dissenting). — This is a controversy over the final report of the executrix, who is widow of the deceased. There was but one asset, and the controversy is over the division of that asset. The deceased was killed in-a railroad accident. The executrix received from the railroad company $3,200 in compromise of damages for the wrongful death. The deceased left a will devising all of his estate to his widow. The widow claimed the entire fund under the will. The objector, a son by a former marriage and a minor, appeared by his next friend, and claimed a share in the fund. The legal ground urged by him as a basis for his claim was that the death of the decedent was instantaneous, and that no cause of action therefor arose in his lifetime, and that, therefore, it did not pass by the will. The argument was that the cause of action was created in favor of the administrator by statute, and that it arose after the death or at the instant thereof. The trial court sustained this view, and ordered the executrix to pay the objector one-third of the fund. An appeal was prosecuted to this court, and the order was reversed, and the case remanded without direction. The only question considered on the appeal was the construction of Code, section 3313. After procedendo to the *739lower court, the objector amended his objections by pleading additional facts to the effect that the cause of action against the railroad company arose in Nebraska, and that under the statute of Nebraska, which gave rise to the cause of action, it was expressly provided that the damages recovered in such a case should be equally distributed among the widow and children. These facts being proved upon the seeond trial,' the court ordered distribution in accordance with the statute "of Nebraska, and the executrix has appealed again. 1
The majority opinion refuses to deal with the merits of the case as made upon the second trial, but orders a peremptory reversal on the ground that every question, both of law and fact, was foreclosed and adjudicated by the first reversing opinion. If this were an equity case, triable de novo in this court, I should find no fault with the conclusion reached in the majority opinion, and would only dissent from that part of the argument therein which treats the reversal of an action at law as having the same adjudicating effect as a reversal of an equity case. This is not an equity case. It was not such at the time of the first appeal. The appeal was tried upon errors only. It was remanded without direction. This left the case in the trial court for retrial. The decision in this court was an adjudication of the legal question and nothing more. "Whether it would prove decisive of the case must depend upon the facts appearing upon the second trial. The jurisdiction of the trial court was as complete and broad upon the second trial as upon the first, and its discretion to permit amendments and its duty to receive evidence was in no manner different in the second trial than in the first. It was bound by the legal question adjudicated on the first appeal, but it was bound by no fact found upon the first trial. Hollenbeck v. Marshalltown, 62 Iowa, 21.
Even a question of law adjudicated upon the first appeal may. become inapplicable upon the second trial by *740reason of additional facts and pleadings in the case. The majority opinion applies the same rule as would be applicable if the case had been triable de novo on the first appeal. The cases cited therein in support of this conclusion are Adams v. Railroad Company, 55 Iowa, 94; and Allen v. Davenport, 115 Iowa, 20. Both of these cases were equity cases. The distinction I contend for was expressly recognized therein. I quote briefly'from the Adams case: “Of course, if the facts change, the rule of law as announced may become inapplicable. In such a case it may become necessary to apply a different rule. But, the facts remaining the same, the rule of law as once held must remain the rule for the case.” It was held in that case that the “allowance .of an amendment and the tendering of a new issue in an equity case after a tidal de novo in this court and after procedendo should be allowed only upon the strongest showing.” It is stated in the majority opinion that “as there was no order made by this court on the former appeal permitting change in the issues, or indicating that there should be a new trial, the effect of the reversing order was to send the case to the lower court for an order in harmony with the opinion here.” That this is the rule in an equity case triable on appeal de novo I grant; but this is not the rule as applied to cases of appeal triable on errors only. It is also stated in the majority opinion that in the ordinary case it is unusual to permit the introduction of amendments “either to the petition or the answer after a decision here.” My own observation and experience upon the trial bench and in the practice is the very reverse of this contention. There are many cases in our Reports which have come here on successive appeals, and seldom twice upon the same facts, or the same pleadings. In the recent case of Hanson v. Cline, 142, Iowa, 187, the trial court adopted the very rule now announced in the majority opinion, and refused to permit plaintiff to amend his pleadings upon the second *741trial after a reversal in this court. Upon the second appeal we reversed the order, and held that the amendment should have been permitted.
In Zimmerman v. Robinson, 118 Iowa, 117, on the first appeal the case -was reversed on grounds that were fatal to the plaintiff as the case was then made. The same case came back here on a second appeal on different pleadings and on. a different theory, and it was affirmed. See 128 Iowa, 72. The case of Boddy v. Henry & Conover, 113 Iowa, 462, 126 Iowa, 31, furnishes a similar illustration. It is' stated in the majority opinion “that the former opinion was res adjudícala not only as to all matters which were appealed, but as to all matters necessarily involved and which might have been appealed.” That this is the rule .that applies to prior adjudications in former actions I concede. But, as applied to the effect of a reversing opinion in an action at law before the termination of the litigation in a final judgment, the rule has never been announced so broadly before. All that has been held heretofore is that such reversing opinion in a law action adjudicates the'legal questions passed upon, and nothing more. Nor are the parties afterwards precluded from showing facts which may avoid the applicability of the legal questions so settled. The first five cases cited in the majority opinion in support of this proposition all involved final judgments in former actions. In the ZalesTcy. case the plaintiff’s pleadings had upon two successive trials admitted certain facts. On the third trial he amended his pleading and denied such facts, and this court held that the amendment under the circumstances should not have been permitted. In the Hendershotl case it was expressly stated that the evidence on the second trial was the same as on the first. The legal questions decided upon the first appeal were therefore determinative. The case of Wood v. Hall was an equity case and involved a question of estoppel against a taxpayer in relation to public improve*742ments. The effect of an appeal to this court was not involved in that case.
In the case at bar tbe • question of where the cause of action arose was not considered at all, nor was there any evidence upon that question except possibly tbe fact that tbe accident occurred in Nebraska. Tbe additional facts proved are in no sense inconsistent with any fact proved on the former trial. They are simply additional facts which are made. to appear upon the second trial. Inasmuch as tbe majority opinion has not considered tbe case on its merits, I do not go into that question. For tbe purpose of tbis dissent, I assume that tbe appellee presents here a meritorious case, and that be is entitled to maintain tbe judgment entered in bis favor in the court below, provided he can have a bearing here on tbe merits. I think be is entitled to such a bearing.