Bruce v. Galvin

Weaver, J.

It is the theory of the appellant that, this court having found and held upon the former appeal that the evidence produced on the trial was insufficient to justify *147 a verdict in plaintiff’s favor, the decision is to be considered a final adjudication of the issue joined, and that, upon transmission of the procedendo, the district court acquired no jurisdiction to proceed further in the cause than to render final judgment against plaintiff for the costs of the action.

Were the question an open one in this state, much might be said in favor of the rule for which counsel contends. We are committed, however, to the proposition that, upon the reversal of a judgment on appeal of a law case because of insufficient evidence, the cause goes back to the lower court for a retrial, if either party demands it, unless it clearly appears from the record that, under no conceivable state of proof applicable to the issues, can the party against whom the reversal is ordered be entitled to judgment in his favor. Landis v. Interurban R. Co., 173 Iowa 466 ; Payne v. C., R. I. & P. R. Co., 47 Iowa 605 ; Meadows v. Hawkeye Ins. Co., 67 Iowa 57 . The precedents cited by appellant are not inconsistent with this holding. Sanxey v. Iowa City Glass Co., 68 Iowa 542 , Shorthill v. Ferguson, 47 Iowa 284 , and Adams County v. B. & M. R. R. Co., 44 Iowa 335 , relied upon by appellant, are not in point. These cases were in equity, triable de novo on -appeal, and it was there held that the losing party could not avoid the effect of a reversal by thereafter amending his pleading in the trial court and demanding a new trial.

Appellant’s further proposition, that the finding or decision of this court is to be considered the law of the case, and binding upon the trial court as well as upon the litigants, is admittedly correct. But the one thing decided on the appeal was neither more nor less than that the evidence produced was not sufficient to sustain a verdict for the appellee; and if, on the retrial, the evidence offered shall appear to be only such as was before the court and jury on the first trial, then, of course, the rule referred to will be applicable, and it will be the duty of the court to direct a ver *148 diet in appellant’s favor. If, however, appellee shall support his claim by Other‘competent evidence fairly tending to establish the truth of the charge made in the petition, he will be entitled to go to the jury, notwithstanding the reversal of the former judgment.

The ruling of the district court was right, and it is— Affirmed.

Preston, C. J., Gaynor and Stevens, JJ., concur.