Barnes v. Walker

On Petition to BeheaR.

Walkers’s petition to rehear states that in Barnes’ suit for conversion (the case in which he took a voluntary nonsuit) there was entered “a final adjudication, un-appealed from, of the very question sought to be re-litigated in the subsequent suit from which the appeal in this case was prayed, granted and perfected”. Upon the premises so asserted, it is insisted that Barnes is thereby barred from the maintenance of the present suit subsequently commenced for the recovery of so much of the *373purchase price as he had paid on the trailer, this recovery being sought on the theory that Barnes, having recovered the trailer, sold it without the advertisement required by statute. Hence, it is insisted by the petition to rehear that the opinion recently rendered in this cause should be reversed and “the judgment of the trial court be affirmed”.

As stated, Barnes’ first suit was for the conversion of the trailer, and his declaration was to that effect. Thereafter, he moved to amend his declaration so as to sue for so much of the purchase price as he had paid on the trailer because of the alleged illegal sale by Walker. The Trial Court refused to permit the amendment, and entered a judgment to that effect reading as follows:

“It appears to the Court that the proposed amendment is inconsistent with and repugnant to the declaration filed and that plaintiff has made an election to sue for a conversion of the property described in the declaration and that said motion should, therefore, be disallowed.
“It is, therefore, Ordered, Adjudged and Decreed by the Court that the motion of the plaintiff to amend his declaration be and the same is hereby overruled.”

This is the order which the petition to rehear says is “a final adjudication, un-appealed from, of the very question sought to be re-litigated” in the present case.

The question in the present case, as stated in the opinion, is:

“Assuming, but not deciding, that the two remedies afforded Barnes, the conditional vendee here are repugnant and, therefore, put him to his election between the two repugnant remedies, the question is whether the mere commencement of the action for conversion by Barnes, followed by a voluntary non-suit, amounted to the un*374equivocal act necessary to an irrevocable election between the two remedies.”

The question just above stated in the present (second) suit was not before the Court when it entered the above quoted order refusing to permit the amendment sought, and in the very plight of the record, could not possibly have been before the Court, nor within its contemplation at that time, because the voluntary non-suit had not, of course, been allowed or applied for at that time. So, that order did not and could not have proposed to adjudge, with reference to the question of an irrevocable election of remedies, the effect of a voluntary nonsuit, in the event one should in the future be taken, upon the rights of Barnes in another suit based upon the remedy assumed in the first case to be repugnant to the remedy for which the first suit was brought. The “law of the case” rule, invoked by this petition to rehear, is applicable only “ ‘so long as the facts on which such decision was predicated continue to be the facts in the case.’ 15 R. C. L., p. 959. But ‘when a judgment establishes the law of the case, its effect as such extends only to the particular subject matter then before the court.’ ” Brewer v. Griggs, 10 Tenn. App. 378, 399-400.

Since this construction of the order in question is conclusive of the insistence made, it is not necessary to respond further to the argument made or authorities cited by petitioner. They are advanced under a construction which we are not able to place upon the order entered in the first case.

When the Trial Court dismissed the present (second) suit of Barnes on the theory that the commencement of the first suit, notwithstanding the voluntary nonsuit, amounted to an irrevocable election and precluded the maintaining of this second suit, the order of dismissal *375recited that it was “without prejudice to the rights of the plaintiff”. Because of this quoted expression the petition to rehear insists that the order dismissing plaintiff’s suit “was not a final judgment from which an appeal could be prayed”; hence, that the motion which the ap-pellee (now the petitioner) made to dismiss the appeal should have been sustained.

It is probable that when the Court in the order dismissing this second suit recited that the dismissal was to be “without prejudice to the rights of the plaintiff” it had in mind the right of Barnes to bring another suit for conversion within one year after the taking of the voluntary nonsuit in the first case. However that may be, it was the holding in the second case that Barnes could not maintain a suit to recover the purchase money already paid on the trailer because, in the opinion of that Court, he had made an irrevocable election in previously suing for conversion, the voluntary nonsuit notwithstanding. Had Barnes not appealed from the order dismissing that (the present) suit he would have been forever barred from maintaining a suit to recover such purchase money. That seems to be just about as final as a judgment can possibly be insofar as it determines the right of Barnes to maintain this second suit for recovery of the purchase money previously paid by him on the trailer. Therefore, this insistence must also be rejected.

The petition to rehear will be denied.

All concur.