concurring.
I can concur in the judgment entered this day but only upon a different analysis. 14 M.R.S.A. § 2602(3) applies solely where a trustee holds money for which he is accountable to a defendant. Such was not the fact here where the disclosure of the public officer holding the several checks reflects that he was holding them for the State to use as evidence against Washburn. His disclosure went unrebutted.
I cannot agree with the majority, however, that the doctrine of the law of the case may be invoked in this case to reach that result.
That doctrine is an articulation of the wise policy that a judge should not in the same case overrule or reconsider the decision of another judge of coordinate jurisdiction. Blance v. Alley, Me., 404 A.2d 587, 589 (1979).
That doctrine should be applied only when the question of law presented in the second instance is the same one which clearly was determined in the first instance. See id.; 1B Moore’s Federal Practice ¶ 0.404[1] at 404 (1982). It is unclear from the record before us whether the Superior Court’s earlier ruling on September 8, 1981, denying Washburn’s motion to discharge the Trustee was an interpretation of 14 M.R.S.A. § 2602(3) or was in the nature of a judgment by default after Washburn failed to appear.
A judgment by default, it is true, operates as an adjudication on the merits. Field, McKusick and Wroth, Maine Civil Practice § 55.6 (1970). Such a judgment, however, does not disclose what issues were examined by the judge beyond the fact of default.
In such an ambivalent state of the record before him the justice who presided in Superior Court two months later could not conclude that the merits of the case had been examined and determined by his colleague who presided in September. He could, nevertheless, have ruled that the statute cited above was not applicable to the facts of the case before him and grounded his decision on that conclusion.
As salutary as the doctrine of the law of the case may be, it should not be overextended.1
This case goes too far.
. See Annot. 20 A.L.R.Fed. 13 (1974); Lummus, “The Law of the Case" in Massachusetts, 9 Boston U.L.Rev. 225 (1929).