The application for an order pendente lite and the application for a modification of the decree are based on the allegations of one and the same petition, and appellant is right in his contention that the question presented by each of these applications was as to whether the petition stated facts sufficient to invoke the jurisdiction of the court and to entitle him to the relief he sought. Because of this he insists the decision reversing the order which set aside the orderpendente lite is a judicial determination that the trial court had jurisdiction to grant the relief sought by the petition and is the law of the case, binding on us in our consideration of the order sustaining the demurrer to the petition. *Page 460
In this latter contention appellant is in error. The litigation now before us is a different case than that in which the order pendente lite was considered. That was an action wherein our original jurisdiction was invoked and a writ ofcertiorari was issued to procure a review of an order vacating an order pendente lite. This is a case in which our appellate jurisdiction is invoked to review orders sustaining a demurrer to a petition for modification of a decree of divorce, denying appellant the relief prayed for and dismissing the petition.
The former case was erroneously entitled McDonald v.McDonald, the same as is the divorce case, instead of McDonaldv. Sutphen, District Judge, as it should have been, and this error has probably contributed to the confusion whereby it has been assumed but one case involving two phases of the McDonald troubles has been submitted to us for decision instead of two separate cases.
Regardless of how the cases are entitled there are two of them, in one of which our jurisdiction is original, and in the other it is appellate. (Idaho Const., art. 5, sec. 9.) For this reason the former decision is not the law of this case, binding on the court whether erroneous or not, but is a precedent to be followed if it is a sound and correct statement of the law, and departed from if it is not.
My dissenting opinion in McDonald v. McDonald, 55 Idaho 102,39 P.2d 293, 299, states the reasons why I contended the order reviewed in that case should have been upheld and why the order appealed from in this case should be affirmed. *Page 461