This case, as originally submitted, was in equity, and heard here de novo. The action was brought upon a cause of action that originated against the Adams Express Company, and against this defendant on the theory that it was the 2. APPEAL AND successor of the Adams Express Company, and had ERROR: assumed its obligations. A purported judgment review: had been previously obtained by the plaintiff scope: against the Adams Express Company. Two undetermined affirmative defenses were interposed: (1) A issue in former discharge by compromise and settlement; equity. (2) that the judgment obtained by the plaintiff against the Adams Express Company was void for want of jurisdiction, and therefore furnished no basis upon which to predicate claim against this defendant. The lower court sustained both of these defenses, and entered judgment for the defendant accordingly. On appeal, we sustained the defense of settlement, and this alone, as all-sufficient, and affirmed the case accordingly. We did not pass upon the question of the validity of the former judgment against the Adams Express Company. It is now urged in a petition for rehearing that our failure to pass upon this issue gives effect to the decree of the district court as an adjudication of that issue. We recognize the force of the complaint. *Page 302
It is necessarily our policy, as an appellate court, to withhold expression of view upon questions that are not essential to the decision. It was not necessary for the district court to pass upon both affirmative defenses, and yet it was appropriate that it do so, because it could not foresee the view which might prevail on appeal.
In view of our conclusion upon the issue of settlement, we had no occasion to go further. It was due to the appellant, however, that we should withdraw the question of the validity of the judgment against the Adams Express Company from the adjudication. This would leave the question open in any proper case hereafter. It is accordingly so ordered.
The petition for rehearing is otherwise overruled.