
    Gohman v. City of St. Bernard.
    
      Error proceedings — Law of the case — Determination by court of appeals binding upon second review, when — Former determination followed -by supreme court, when — New review appropriate where trial court misconstrues instructions — Municipal corporations — Damages for change of grade — Improvements made'with reference to reasonable grade — Measure of damages where established grade unreasonable — Gost to adjust property to new grade considered, when.
    
    1. Where after a definite determination the Court of Appeals has reversed and remanded a cause for further action in the trial court, and the unsuccessful party does not prosecute error therefrom to this court, and the trial court has proceeded in substantial conformity with the directions of the Court of Appeals, its action will not be questioned on a second review, even though upon such second review the Court of Appeals should be of the opinion that its former determination was erroneous.
    2. In such event the pronouncement of the Court of Appeals becomes the law • of the case as a rule of practice, though not a binding precedent for future cases, and upon error being prosecuted from the second review to this court such former determination will not be disturbed.
    3. If the trial court misconstrues the directions of the Court of Appeals and does not give full effect to its mandate a new review is appropriate, and if error intervened in such second trial the Court of Appeals should reverse and remand the cause for new trial under proper instructions.
    4. Where a grade has not been adopted for a street in a municipality and a property owner erects improvements upon property fronting upon such street with reference to a reasonable grade thereafter to be established, and after completion of such improvements a grade is established by such municipality, resulting in damage to the property so improved, in an action for damages the inquiry relates to the reasonableness of the grade so established.
    5. If such improvements were erected with reference to a reasonable grade, and such established grade is found to be unreasonable, tbe measure of damages is the difference between the market value of the real estate at a reasonable grade, with the improvements thereon, and the market value of the real estate with the improvements thereon at the unreasonable grade so established.
    6. In a suit for damages caused by change of grade an inquiry may be made into the cost and expense of alterations and restorations for the purpose of adjusting the property and its improvements to the new conditions created by the change of grade. This is, however, not for the purpose of ascertaining the extent of the property owner’s damage. Its purpose is to ascertain whether the damages shown by decrease in market value can be minimized by resorting to alterations and adjustments. This inquiry can only he pursued when the cost of the proposed alterations is less than the damages proved, as shown by the difference in values before and after the improvement.
    (No. 18402
    Decided December 23, 1924.)
    Certified by tbe Court of Appeals of Hamilton county.
    Tbe facts are stated in tbe opinion.
    
      Mr. Otto Pfleger, for plaintiff in error.
    
      Miss Lorccine E. Game, city solicitor, for defendant in error.
   Marshall, C; J.

This is an action to recover damages, originally brought in tbe insolvency court of Hamilton county by a property owner against tbe city of St. Bernard, to recover damages caused by the adoption of a grade of tbe street in front of her property, which is alleged to be an unreasonable grade. The action of the city establishing the grade occurred on March 13, 1914. Mrs. Gohman and her predecessors in title had owned the real estate many years prior to that date, and had erected improvements thereon prior to the adoption of any grade by the municipality, and in so doing attempted to anticipate a reasonable grade thereafter to be established. The grade as actually established by the city in 1914 raised the street in front of her property several feet, thereby interfering with drainage and access. Oa January 15, 1915, this action was begun to recover damages, and, upon trial, verdict and judgment were recovered against the city. Error was prosecuted therefrom to the Court of Appeals, which court reversed the judgment for alleged error in the charge of the trial court on the subject of the measure of damages. The Court of Appeals remanded the cause for new trial, and in its written opinion attempted to instruct the trial court as to a proper charge to be delivered on the subject of the measure of damages, in the following language:

“The measure of damages, in cases where the established grade is unreasonable, is the difference between the amount of damages which would have resulted to the party from the establishment of a reasonable and proper grade, and that resulting from the grade actually established.”

No other errors were found by the Court of Appeals at that time.

Thereafter, in the course of time, the cause was again tried in the insolvency court, and that court in the charge to the jury and as a part of its instruction upon the subject of measure of damage quoted the instruction of the ¡Court of Appeals. As a result of that trial, another verdiet in a much, larger sum'was returned against the city. Thereupon error was again prosecuted to the Court of Appeals. The first error proceeding in the Court of Appeals was heard in 1919 hy the Court of Appeals of the First Appellate Distinct, and the second proceeding was in 1924 by the judges of the Fourth District, sitting by designation, and upon this second review the court again reversed and remanded and stated in its opinion that -the pronouncements of the court upon the former review were erroneous and that the measure of damage had not been correctly stated. In reversing the second judgment the Court of Appeals certified the cause to this court for review and final determination on the ground that its judgment was in conflict with a judgment in another case decided by another court of appeals involving the same question.

We have carefully compared the opinion of the Court of Appeals upon the first review with the charge of the trial court in the ■ second trial, and find that while the portion of the instructions of the Court of Appeals above quoted was faithfully given to the jury, there were other portions which materially modified the language above quoted.

It is the claim of counsel for Mrs. Grohmán that the appellate court having laid down a rule for measure of damages, the same has become a binding rule. between the parties to this controversy, under the well-known doctrine of the “law of the case.” This well-known doctrine, which has almost universal application throughout the states of the Union, and in the federal courts, and which, has received approval in hundreds of cases under a great variety of circumstances, will be found concisely stated in 4 Corpus Juris, at page 1093:

“It is a rule of general application that the decision of an appellate court in a case is the law of that case on the point presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first decision rested.”

The courts of every state in the Union, except Delaware and Wyoming, have approved the doctrine, and we are unable to find that either of those states has disapproved it. The cases in which the doctrine has been declared present a great variety of circumstances, and the rule has been stated in various jurisdictions with many variations and qualifications. The doctrine of the law of the case differs in many important respects from stare decisis and res adjudicaba, and yet has many things in common with both of those doctrines. By the great majority of oases it is not declared as a rule of substantive law, but rather as a rule of practice. It should be stated at the outset of this decision that we do not approve it as a ■ rule of binding force, but as a salutary rule of practice, which should be applied in all cases where it may be employed as a shield against endless litigation, and to .compel obedience of trial courts to the mandates of reviewing courts, and not as a sword which may be employed as an instrument of oppression and injustice. The rule is generally confined to civil cases, and although we have not been able to examine all of the cases in which this doctrine has been discussed and applied, we have found that only in the state of Kansas has it been applied where life or liberty has been in jeopardy. Manifestly, it should not be so applied. It is contrary to the spirit of our institutions to permit any technical rule of practice to interfere or to prevent any person whose life or liberty is in jeopardy from invoking every rule of substantive law which may be urged in his behalf.

We are therefore only considering and contending for a rule to be applied in civil eases, and, in any case, to be applied as a rule of practice, with the injunction that the court should refuse to apply it in any exceptional case where it may be made the instrument of oppression or injustice. When so declared and applied, we are of the opinion that the rule is a most salutary one in the interest of more orderly administration of justice. The rule originated in the necessity of a trial court obeying the mandate of an appellate court upon the retrial of a cause. Manifestly, an appellate court would be rendered impotent if its orders could be ignored at will, and if it were required to relitigate the same question in the same case upon subsequent and probably numerous appeals. If this rule be not employed, it may happen that where frequent changes occur in the personnel of a reviewing court, or where courts from other districts are designated to sit in second or subsequent reviews of a case, as provided in the state of Ohio, the same case may be shuttled back and forth from trial court to reviewing court without limit. If the rule shall not be applied, a party who has received an adverse judgment in the reviewing court will be encouraged to retry the case and thereby gamble upon the probability of a favorable judgment at the hands of the trial court or jury, knowing that the way is open to him at any time to again gamble with the Court of Appeals composed of a different personnel, and when the end of proceedings has been reached in the trial court and Court of Appeals the way would then be open to the Supreme Court for a final presentation of his views untrammeled by any declarations that might have been made in the lower courts through a long course of extended litigation. In the meantime it may very well happen that a powerful litigant will have completely exhausted his weaker adversary and find it wholly unnecessary to prosecute an error proceeding to the court of last resort for a determination of legal principles or the controversy itself. When a case has once been tried in the court of common pleas, and error prosecuted to the Court of Appeals, and judgment reversed for errors in the trial, if counsel is not satisfied with the declaration found in the opinion of the Court of Appeals and the rule of law therein declared as applicable to his controversy, no reason is perceived why he should not apply for certiorari to this court, thereby taking a short cut to -the goal he seeks rather than return to the trial court for a long and expensive trial and another error proceeding to the Court of Appeals before seeking the only-effective relief which can really avail him anything in the court of last resort.

The doctrine of the law of the case is analogous to estoppel, and when a party elects- to return to the trial court for another trial, instead of immediately proceeding to a higher court for a review of legal principles applicable to his ease, he should be held to have elected to adopt the principles declared by the Court of Appeals and to be estopped from further questioning the same in that particular controversy.

It should further be stated in this connection that when a rule made on a first review is held to estop a party, from prosecuting a second review upon the same proposition, the courts do not regard the rule so declared as a precedent in other ■cases unless -it is sound. The rule above quoted from Corpus Juris has unfortunately had some doubt thrown upon it by the following language found on page 1104 of the same volume:

“As a general rule the decision of an in-ter.mediate court is not conclusive on appeal to a court of last resort.”

This unfortunate statement is not supported by any of the cases cited in the footnote, to wit, Buster v. Wright, 135 F., 947, 68 C. C. A., 505; Chicago Bd. of Trade v. Nelson, 162 Ill., 431, 44 N. E., 743, 53 Am. St. Rep., 312; Henning v. Eldridge, 146 Ill., 305, 33 N. E., 754. In each and all of those casés there had been á reversal in the intermediate court and a remand without directions, and in those cases the judgment of the reviewing court was riot la final judgment from which an appeal or writ of error would lie to the court of last resort. It was particularly stated that if the judgment of the appellate court was such that no further proceedings could be had in the trial court, except to carry the mandate of the appellate court into effect, that an appeal would lie. It was further particularly stated in Henning v. Eldridge, supra, in the syllabus:

“If a party is dissatisfied with the determination ' of the Appellate Court, his only means of redress in that court is by petition for rehearing, and in the absence of the allowance of such a petition all final orders and judgments of the court are, as between the parties to the suit, res judicata, and binding on them whenever they again, arise in that court between the same parties, upon the same record. The Appellate Court cannot review its own decisions except on rehearing.”

It will therefore be seen that in that case the Supreme Court of Illinois not only affirmed the doctrine which had been repeatedly declared by that court, but even went much farther than the courts of other states, and much farther than this court has any intention of going in the instant case. Those decisions are not only in harmony with the rule we contend for, but they set forth an additional reason why the rule is a safe and a salutary one. This court has repeatedly refused to entertain jurisdiction of causes where litigants have failed to exhaust their statutory remedies, and having taken that stand in that class of cases no one may justly criticize a rule of practice which leads to the same result.

While as before stated there has been practical unanimity among the American courts in declaring and applying this doctrine, certain text-writers and annotators have unnecessarily clouded the doctrine by the discussion of a few exceptional cases, some of which are in fact substantial departures from the rule, others of which adhere to the rule in general terms but declare certain exceptions to its application. These departures and exceptions are so few in number as not to detract from the weight of the authorities which support the rule. In 2 Ruling Case Law, at page 226, we find:

“It must be conceded that most courts hold that the decision on a prior appeal is conclusive, however erroneous. # * # It is a final adjudication from which the court cannot depart or the parties release themselves.”

The same text-writer gives it as his opinion, supported by Kansas and Nebraska authorities, that the better rule is that the doctrine is “not an inflexible rule, and if the prior decision is palpably erroneous it is competent for the court to correct it on the second appeal.” That author is not justified in so broad a declaration by the cases cited in the footnote. In the case of Missouri, Kansas & Texas Ry. Co. v. Merrill, 65 Kan., 436, 70 P., 358, 59 L. R. A., 711, 93 Am. St. Rep., 287, the Supreme Court of that state overruled a former decision and declared:

“If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally.”

This is, of course, a departure from the rule. It may be that there was a flagrant error which could not be justly overlooked. However that may be, it is quite certain that the state of Kansas has gone farther than any other state in declaring the rule of “the law of the case.” The rule was clearly and concisely stated in a civil case (Frankland v. Cassaday, 62 Tex., 418), and in two homicide cases decided since the cáse of Missouri, K. & T. Ry. Co. v. Merrill. In State v. Morrison, 67 Kan., 144, 72 P., 554, a homicide case, the court declared:

“All questions of law once considered and determined on a former appeal become the law of the case and are conclusive upon a second appeal to the same appellate court.”

In State v. Campbell, 73 Kan., 688, 85 P., 784, 9 L. R. A., (N. S.), 533, 9 Ann. Cas., 1203, it was held that:

“A former judgment of this court holding an indictment sufficient in substance is the law of the case. All questions in this case raised by the motion in arrest of judgment are controlled by the former decision.”

This doctrine was again announced in a civil case, in Buck Stove & Range Co. v. Vickers, 80 Kan., 29, 101 P., 668. The state of Kansas is therefore clearly and strongly in line with the other states favoring the rule.

The stand taken by the Supreme Court of Nebraska is indeed peculiar. The editor of Ruling Case Law, and other writers who seem not to favor the rule, cite the ease of City of Hastings v. Foxworthy, 45 Neb., 676, 63 N. W., 955, 34 L. R. A., 321. This case and its history must receive more extended comment. That case was disposed of March 5, 1896, and. the statement shows that the cause of action accrued January 1, 1886, and that it had been before the Supreme Court of Nebraska on three separate previous appeals. The same case is therefore reported in Foxworthy v. City of Hastings, 23 Neb., 772, 37 N. W., 657; Id., 25 Neb., 133, 41 N. W., 132; Id., 31 Neb., 825, 48 N. W., 901, and City of Hastings v. Foxworthy, 45 Neb., 676, 63 N. W., 955, 34 L. R. A., 321. It was remanded for the fourth time for new trial more than ten years after the cause of action accrued. It will be difficult to find any situation which would better illustrate the salutary effect and the necessity of a rule which would tend to bring litigation to an end within the lifetime of the litigants. This case should be classed as a leading case in support of the maxim that justice delayed is justice denied. In an opinion of much more length than logic, the court attempts to severely criticize the doctrine of the law of the case, and yet in the syllabus the general features of the rule are upheld and it is only declared that the appellate court is not bound to follow its former opinions. The Nebraska reports have a large number of cases declaring and upholding this doctrine and the Hastings case does not overrule any of them, but it is only stated that the case of Hiatt v. Brooks, 17 Neb., 33, 22 N. W., 73, is modified. The opinion in the Hastings case was filed June 22, 1895, and one day earlier, to wit, June '21, 1895, the same court decided the case of Ripp v. Hale, 45 Neb., 567, 64 N. W., 454. At page 568 of the opinion (64 N. W., 455) we find the following:

“The rule of law which was announced in the former decision (meaning the former appeal) as being applicable to the facts became the law of the case and must now be allowed to govern in its disposition, and, viewed in the light of such rule, the evidence was sufficient to sustain the verdict rendered.”

In Holt v. Schneider, 61 Neb., 370, 85 N. W., 280, decided in 1901, the Nebraska Supreme Court declared as a binding rule that:

“Where on appeal a question involved in the controversy is clearly presented and fully determined, the decision thereon will be deemed to be the law of the case in all subsequent proceedings, binding alike on the trial court and in this court on another appeal.”

The Supreme Court of Nebraska has adhered to this doctrine more firmly, if not more consistently, than any other state in the Union. The doctrine has been restated and reaffirmed since the decision of the Hastings case no less than seventeen times in as many different controversies, and in only one of these cases has the Hastings case, ever been referred to, and that only parenthetically. The case of Hastings v. Foxworthy is reported in 34 L. R. A., 321, and an elaborate editorial note follows, and more than a hundred cases decided by more than a score of states are cited in support of the rule that the decision upon a former appeal is binding even though erroneous. The state of Illinois is included among those courts which have in some measure clouded the doctrine. That court is also in a peculiar situation. In the case of Freet v. American Elect. Sup. Co., 257 Ill., 248, 100 N. E., 933, that court declared that the rule laid down in a former review is not binding upon the court on a second review. The court did not in that case overrule, criticize, or attempt to distinguish the numerous cases which had theretofore been decided by it, in which the rule had been unequivocally declared, and, what is stranger still, in the case of Thomasson v. City of Chicago, 261 Ill., 131, 103 N. E., 552, the rule was again applied in a case which had been consolidated with two other cases, only one of which had had a former review, and it was held that the rule in the former review in one case became the law of the case in all three oases thus consolidated.

The state of New York is included by certain text-writers among’ those that have beclouded the doctrine, but we are unable to find any justification for this view, because it is stated in the Matter of Laudy, 161 N. Y., 429, 55 N. E., 914, that a decision in a former appeal is conclusive upon the court in a subsequent review.

The state of Missouri is another state which has vacillated in the discussion of this doctrine. Many cases decided by that court can be found which uphold the doctrine, and other cases state that the rule is not a binding rule. The leading ease of departure is perhaps that of Keele v. Atchison, Topeka & Santa Fe Ry. Co., 258 Mo., 62, 167 S. W., 433. That case being the last expression of the Missouri courts probably removes that state from the list of those which adhere to the doctrine.

The earliest federal case is Himely v. Rose, 9 U. S., (5 Cranch), 313, 3 L. Ed., 111, decided in 1809, the opinion having been delivered by Chief Justice Marshall. The report is very brief, but it does appear that there was a former review and reversal and an express mandate to the lower court. In the colloquy between court and counsel the Chief Justice said on page 314: “Nothing is before this court but what is subsequent to the mandate.” The opening sentence of the opinion, on page 316, states:

“A decree having been formerly rendered in this cause, the court is now to determine whether that decree has been executed according to its true intent and meaning.”

The entire opinion covering only two pages shows that that was the only question which the court considered.

In Stone v. Southern Ill. & Mo. Bridge Co., 206 U. S., 267, 27 S. Ct., 615, 51 L. Ed., 1057, no definite rule of law was declared, but a reading of the case discloses that there was a first and second appeal and that the Supreme Court only considered those matters which were not settled by the first appeal.

The doctrine has been followed by the Circuit Courts of Appeals in a large number of cases which we will not take the trouble to discuss. It is said, however, that the case of Southern Ry. Co. v. Clift, 260 U. S., 316, 43 S. Ct., 126, 67 L. Ed., 283, is opposed to the doctrine. That case merely decided that:

“A decision of a state court disposing of a federal question by following its decision on a former appeal as the law of the ease, cannot be regarded as resting on the independent, non federal ground of res adjudicada.”

We have no quarrel with that case, because it is well settled that the Supreme Court of the United States is not in any way bound by a decision of a state court where federal questions are involved. Mr. Justice McKenna delivered the opinion of the court and proceeded to declare the true distinction between res adjudicate and “the law of the case,” and made the very pertinent, cogent statement that the law of the case directs discretion and that res adjudicate supersedes it and compels judgment; in other words, in one it is a question of power, in the other submission. It was but natural that the United States Supreme Court should refuse to submit to the judgment of a state court as a finality, in a case where a federal question was involved.

In Messenger v. Anderson, 225 U. S., 436, 32 S. Ct., 739, 56 L. Ed., 1152, the doctrine of the law of the case was clearly recognized, but limited to a question of practice and not as a restraint upon power. This again was a case where the Supreme Court of the United States was reviewing a decision of a state court where a federal question was involved, and in the syllabus of the case the following is declared:

“In a conflict between decisions of the state and federal courts, this court is free when the case comes here.”

In the case of Zeckendorf v. Steinfeld, 225 U. S., 445, 32 S. Ct., 728, 56 L. Ed., 1156, the Supreme Court of the United States for the third time refused to apply the doctrine of the law of the case when it had on review a case which had been twice heard in the court of last resort of the territory of Arizona and then prosecuted to the Supreme Court of the United States upon a federal question. We have searched the opinions in all these cases in vain to find anything contrary to the general doctrine of the law of the case, and it is quite clear that those ' decisions only constitute one of the well-defined exceptions thereto.

Having carefully examined all the federal cases decided by the Supreme Court of the United States and the many decisions of the Circuit Courts of Appeals, it is believed that the foregoing are all of the cases which have declared any exception to the general rule that a declaration in a former appeal has binding force. The Supreme Court of the United States, beginning with the early case of Himely v. Rose, supra, has never departed from the general features of the rule farther than indicated by the few cases already discussed. In the case of Roberts v. Cooper, 20 How., 467, at page 481 (15 L. Ed., 969), the Supreme Court of the United States made the following ringing pronouncement:

“It has been settled by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first, would lead to endless litigation. In chancery, a bill of review is sometimes allowed on petition to the court; but there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate on chances from changes in its members. See Sizer v. Many, 16 How., 173; Corning v. Troy Iron Company, 15 How., 466; Himely v. Rose, 5 Cranch, 313;. Canter v. The Ocean Insurance Company, 1 Pet., 511; The Santa Maria, 10 Wheaton, 431; Martin v. Hunter, 1 Wheaton, 304; and Sibbald et al. v. United States, 12 Pet., 488.
“We can now notice, therefore, only such errors as are alleged to have occurred in the decisions of questions which were peculiar to the second trial.”

That case and its citations were followed in Supervisors v. Kennicott, 94 U. S., 498, 24 L. Ed., 260, and the general doctrine has been affirmed and approved in the following cases: Thompson v. Maxwell Land Grant & Ry. Co., 168 U. S., 451, 18 S. Ct., 121, 42 L. Ed., 539; Clark v. Keith, 106 U. S., 464, 1 S. Ct., 568, 27 L. Ed., 302; Chaffin v. Taylor, 116 U. S., 567, 6 S. Ct., 518, 29 L. Ed., 727. And in at least two cases in which no federal principle was violated the Supreme Court applied the rule that where there has been a second appeal in the state courts the United States Supreme Court would refuse to review the law declared in the first appeal: Northern Pac. Rd. Co. v. Ellis, 144 U. S., 458, 12 S. Ct., 724, 36 L. Ed., 504; Great Western Tel. Co. v. Burnham, 162 U. S., 339, 343, 16 S. Ct, 850, 40 L. Ed., 991.

In obedience to the uniform and consistent decisions of the Supreme Court of the United States, the federal District Courts and Circuit Courts of Appeals have followed and applied the rule in a large number of reported cases.

It is even said that the Supreme Court of Ohio has not supported this doctrine in the past. We will therefore briefly review some of the Ohio decisions. One of the earliest eases in which this rule might have been applied is Aubrey v. Almy, 4 Ohio St., 524. The failure of this court to apply the rule in that case does not detract in the least from the rule itself. The case originated as a forcible detainer suit before a justice of the peace. Judgment was there rendered for the plaintiff. The judgment was reversed in the court of common pleas and the cause retained for trial. Judgment was again rendered for the plaintiff for costs and restitution. Thereupon in the same case the plaintiff moved the court to impanel a jury to assess the value of rents and damages accruing to plaintiff after the notice to quit. The motion was overruled and error prosecuted to the Supreme Court, which reversed and awarded a writ of procedendo to proceed with the inquiry. A jury was accordingly impaneled and a verdict rendered for plaintiff, and error was again prosecuted from that judgment to the Supreme Court, and the Supreme Court held on the second review that by virtue of Sections 13 and 14 of the Act of 1831 (Swan’s Statutes, old Ed., 419), regulating proceedings in forcible detainer, no jurisdiction was conferred upon the court of common pleas to assess damages in any case except where the judgment of the justice of the peace is affirmed. On page 529 of the opinion, Thurman, C. J., makes it clear that the court could not in its former review confer jurisdiction upon the court of common pleas which was not conferred upon that court by the statute relating thereto. It is universally agreed that if a court does not have jurisdiction of the subject-matter of an action, any judgment becomes a mere nullity. There is nothing in the case of Aubrey v. Almy, 4 Ohio St., 524, which goes farther than to merely recognize that well-known principle.

In the case of Pollock v. Cohen, 32 Ohio St., 514, this court has clearly and unequivocally recognized and applied this doctrine, and has extended it not only to questions actually presented but to all questions existing on the record that might have been presented for adjudication on the first petition in error. The fourth syllabus reads as follows:

“Where a case is brought a second time, on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing On the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed. ”■

The steps which had been taken in that case as a basis for the foregoing pronouncement were not by any means parallel to the steps in the case at bar as heretofore outlined, but the principles which are decisive of that case have application to the case at bar. Whatever facts may have been the basis of that syllabus, the opinion of the court, which may properly be referred to in construing the syllabus, has left no doubt of its application to the instant case. On page 519 of the opinion we find:

“It is well settled by authority, and is a doctrine sound in principle, that all questions which existed on the record, and could have been considered on the first petition in error, must ever afterward be treated as settled by the first adjudication of the reviewing court.
“The time should come, in the history of a cause, when litigation must end. If the failing party was allowed to prosecute a new petition in error, on the same record, whenever he imagined he had discovered a new ground of error not previously assigned, litigation would be interminable. Such a practice would violate well-settled principles of law and be against public policy.”

It is said, however, that the cases of Bane v. Wick, 6 Ohio St., 13, and Pennsylvania Co. v. Platt, 47 Ohio St., 366, 25 N. E., 1028, are contrary to Pollock v. Cohen. In those eases it is- declared in the syllabus that the law declared in a former review will be followed in a subsequent review “unless very clearly satisfied that it is erroneous.”

If it be conclusively inferred from this very indefinite pronouncement that in all' cases where the declaration of law on the first review is erroneous, it will be disregarded on the second review, it must be conceded that very little would be left of the doctrine itself. It will be observed, however, that the case- in the 6th Ohio State was decided many years before the pronouncement in the 32d Ohio State, and it will also be found that in the opinion of Williams, J., in the 47th Ohio. State no reference whatever is made to the 32d Ohio State; nor is it distinguished, criticized, or in terms overruled. Manifestly, the doctrine would be utterly devoid of meaning if applied only when the decision upon the former appeal is sound. If the former decision is sound there is no occasion to invoke the rule, because any sound decision ought to be affirmed; no vitality or meaning can be given to this doctrine unless it is made to apply to an erroneous decision. We can only conclude therefore that in each of those cases the court did not carefully consider the effect of the language above quoted, and we think therefore it does not follow that the court would have made a different ruling if error had been found to exist in the former appeal. The court in each of those eases was only considering the record then before it in which the error was found.

It is further contended that the case of Russell, Adm’r., v. Fourth Natl. Bank, 102 Ohio St., 248, 131 N. E., 726, disapproves this doctrine. There is no declaration whatever in the syllabus of that' case either nearly or remotely referring' to the doctrine, and a careful' reading of the opinion shows that it could have ho application to the principle for which plaintiff in error contends in the instant case. At page 263 of the opinion (131 N. E., 731), it is stated:

“In the ease we have here it must be remembered that there is a vital difference between the former and the last proceeding in the Court of Appeals.”

It is further contended that the case of Columbus Packing Co. v. State, ex rel. Schlesinger, prosecuting attorney, is in point, and that it disapproves the doctrine. That ease is reported in 100 Ohio St., 285, 126 N. E., 291, 29 A. L. R., 1429, and again in 106 Ohio St., 469, 140 N. E., 376. It is true that in that case this court in its later judgment directly overruled some of the declarations of its former judgment, but it is also true, as shown by the opinion in the latter judgment, that after the cause was first heard by this court and remanded for further proceedings one of the defendants, “the creamery company, filed its amended answer, containing a new and distinct defense, which the trial court did not have before it for consideration, and the validity of which was not determined by it.” The above-quoted matter appears in the opinion of Jones, J., at page 477 (140 N. E., 379).

The syllabus of the later judgment contains no discussion whatever of the doctrine of the law of the case, and manifestly that doctrine could have no direct application, because the hearing in the trial court after the first review was upon materially different issues. It was further stated in the opinion of Jones, J., at page 479, (140 N. E., 376), that there was a failure of proof upon the trial of the cause, and this matter could not have been determined in the first review because there had at that time been no trial of issues of fact.

The Ohio courts are therefore not out of harmony with the courts of other states of the Union and the federal courts upon this doctrine.

Although we are affirming the doctrine of “the law of the case,” when we come to apply the rule to the instant case and make a careful study of the second trial, it is found that the trial court did not give full effect to the mandate of the Court of Appeals upon the first review, and further that the mandate did not cover the entire case presented in the second trial. This situation is covered in 4 Corpus Juris, at page 1097, and many cases are there discussed from which the editor reaches the following conclusion:

“Where, after a definite determination, the court has. remanded the cause for further action below, it will refuse to examine questions other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. But if the mandate does not cover the entire case, but leaves something undetermined to be inquired into and adjudicated, or if the lower court misconstrues the decree of the appellate court and does not give full effect to its mandate, a new appeal is an appropriate remedy.”

The weight of the authorities cited fully supports the conclusion stated. Applying the general rule to the instant case, in the light of those conditions and exceptions as above stated, we find no error in the judgment of the Court of Appeals reversing the second judgment and remanding the cause for a third trial. It is manifestly desirable that it be tried by the application of correct principles of law, and that the damages existing, if any, be measured by a standard uniform rule which has been generally approved in the past and which may be employed as a precedent in future cases. In any event, in this particular case, the cause having been certified to this court for review and final determination, it is obligatory upon this court to declare the true rule which shall govern this case and all other cases grounded upon similar facts.

It is alleged as a ground of recovery in this case that the plaintiff erected improvements upon her property before a grade had been established, but that she exercised reasonable care and judgment in erecting buildings and making improvements with reasonable regard to a future grade to be thereafter established; that after said improvements had been constructed the city through its council adopted a grade which was unreasonable, resulting in damage.

It has been established by several decisions of this court that where improvements are erected by a property owner with reference to an established grade which was thereafter changed, damages may be recovered, and it is not disputed by counsel in this case, neither is it doubted by this court, that the same rule applies under the facts pleaded in this case. We will assume that the jury found the grade adopted by the city to be unreasonable, and we are therefore confronted only with the question of the measure of damages. The measure of damages has never been declared by any previous decision of this court in any case involving a change of the grade of a street. In the case of Crawford v. Village of Delaware, 7 Ohio St., 459, there is no discussion of the measure of damages, but there is a discussion, beginning at page 470 of the opinion, concerning the nature of a proceeding whereby a change of grade is adopted, and it is therein declared that property owners are entitled to compensation because the change is an invasion of a private right for the benefit of the public and therefore an appropriation of property. This being the theory upon which compensation is awarded in favor of the property owner and against the municipality, the same measure of damages must necessarily be applied as in any other exercise of the right of eminent domain. It has been the approved practice in Ohio for more than half a century, and it is also the approved practice in the courts of other states, to ascertain the difference between the market value of the property before the improvement and the market value of the property after the improvement, and that difference shall constitute the damages. The difficulty with the rule laid down by the Court of Appeals on the first review of this controversy is that there seems to be no distinction made between value and damages. It is manifest that if a reasonable grade should be established by the city, there could be no compensation adjudged in favor of the property owner, and it is therefore confusing to instruct the jury that they should ascertain the difference between damages flowing from a reasonable grade and the damages flowing from an unreasonable grade. The effect of that instruction is, there-

fore, that the measure of damages is the actual damage suffered, which throws no light whatever upon the manner of ascertaining the damage. The jury should therefore be instructed that the measure of damages is the difference .between the market value of the real estate with the improvements thereon, erected with reference to a reasonable grade thereafter to be established, and the market value of the real estate with the improvements thereon after the establishment of a grade by the municipality, provided the grade so established is found by the jury to be an unreasonable grade.

This is the rule which was very briefly laid down in Columbus, H. V. & T. Ry. Co. v. Gardner, 45 Ohio St., 309, and it is stated on page 322 of the opinion (13 N. E., 69) that the rule is too well settled in this state to admit of further controversy. This rule was followed by counsel in the trial of the case in the insolvency court, in propounding questions to the witnesses, except that counsel was not always careful to confine the questions to market values.

It has already been observed that on the second trial of the case in the insolvency court the trial court did not give full effect to the mandate of the Court of Appeals, and that the mandate did not cover the entire case presented in the second trial. As a part of the instruction upon the measure of damages the trial court made the following statement:

“Different methods and differences in value have been given you, one method being for the erection of a retaining wall and the filling in of the lots and the raising of the buildings and the raising of the foundations. Unreasonable expense cannot be allowed. If for instance yon find a fill necessary and a retaining wall unnecessary, then the latter cannot be added to the cost of a proper fill. It is for you to determine from the evidence which is the most feasible and the most reasonable and economical and practicable way of treating the property to get at this question of damages, if you find she is entitled to any damages.”

This instruction was a gross departure from the uniform rule of measuring the damages by ascertaining the value of the property before and after the improvement. Many cases hold that an inquiry may be made into the cost and expense of alterations and restorations, for the purpose of adjusting the property and its improvements to the new conditions created by the change of grade. This is, however, not for the purpose of ascertaining the extent of the property owner’s damage. Its purpose is to ascertain whether the damages shown by decrease in market value can be minimized by resorting to alterations and adjustments. If, for example, property left after a street improvement in an unsightly condition should be estimated to be worth $1,000 less than before the improvement, and by the expenditure of $100 the property could be restored to its former value, the property owner would be made fully whole by the payment of $100, and the cost of alterations and adjustments should then become the measure of damages. A different rule prevails when the cost of alterations to suit the fancy of the owner, or to meet the different ideas of witnesses called to testify as experts on the' subject of alterations, shall exceed the amount of the difference in values of the property before and after the improvement. In the instant case, the same witnesses who had given testimony of values before and after the improvement were also interrogated as to the cost of making alterations, and in each instance the cost of alterations exceeded the difference in values as estimated by those witnesses. An examination of the record discloses that the testimony as to the amount of the difference in values was approximately $2,000, and that no witness set a greater difference than $2,000 except one whose testimony was that the difference would be between $2,000 and $2,500. The testimony on the subject of the cost of alterations ran very much higher. It is apparent that the verdict is responsive to the higher estimates upon the 'subject of alterations and adjustments. This portion of the charge is therefore clearly prejudicial. iSuch testimony, according to the authorities, is only competent when alterations could be made at a cost which would be less than the amount of the difference in values. City of Topeka v. Martineau, 42 Kan., 387, 22 P., 419, 5 L. R. A., 775; Smith v. Kansas City, 128 Mo., 23, 30 S. W., 314; Ziebarth v. Nye, 42 Minn., 541, 44 N. W., 1027; Sallden v. City of Little Falls, 102 Minn., 358, 113 N. W., 884, 13 L. R. A., (N. S.), 790, 120 Am. St. Rep., 635: Under such circumstances, it is not easy to see how it is competent in any event for the claimant to introduce evidence of the cost of alterations. This inquiry should only come on the part of the city, in the event that the general damages could be minimized by making alterations. For these reasons the judgment of the Court of Appeals will he affirmed.

Judgment affirmed.

Robinson, Allen, and Conn, JJ., concur.

Jones, Matthias, and Day, JJ.,

concur in propositions 4, 5, and 6 of the syllabus, and in the judgment, but dissent from propositions 1, 2, and 3 of the syllabus.

Jones, J.,

dissenting. We concur in the judgment and in that part of the syllabus which relates to the question of damages. However, we dissent from the first three propositions contained in the syllabus.

There are important facts, however, which have been omitted from the majority opinion. When the cause was first taken to the appellate court it was reversed and remanded by the Court of Appeals of the first district. It appears from their opinion, but not from this record, that it was remanded to the trial court with instructions relating to the measure of damages, which another appellate court on the second review found, and this court now finds, to be erroneous. When the cause came to the Court of Appeals the second time, another Court of Appeals, to wit, the judges of the Fourth Appellate District, sat in place of the judges of the First Appellate District and held that the charge on the measure of damages suggested by the First District Court of Appeals was erroneous. They again reversed and remanded the ease for trial, and certified the record of the case to this court for review because their judgment was in conflict with a former judgment pronounced upon the same question by the Court of Appeals of the First District. In that portion of the syllabus from which we dissent, this court holds that the decision of the appellate court upon the first review, although erroneous, was the law of the case; and that if error be not prosecuted therefrom both the appellate court on the second review and this court are powerless to remedy the error. If regard be given to the text in 4 Corpus Juris, found in the majority opinion, and if due consideration be not given to the great variety of cases and the dicta of various judges rendering opinions therein, one might arrive at the conclusion that the rule stated in the syllabus had been generally adopted by many of' the courts of this country.

It may be conceded that many of the states have held that a prior decision, even if erroneous, is the law of the case and conclusive upon an appellate court on the second review. However, the general rule is that even if it, be conclusive upon the appellate or intermediate court, the doctrine referred to, the law of the case, does not bind a court of last resort. The rule stated in the text does not have the support of many of the states which it cites. In 4 Corpus Juris, 1093, it is stated: .

“It is a rule of general application that the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case.”

This text purports to have for its support decisions of our highest federal courts, and also of the courts of Illinois, Kansas, Missouri, Nebraska, New York, Ohio, Texas, and other states. However, in the jurisdictions named, the modern and better rule has been adopted which holds that a former decision, if palpably erroneous, is not binding upon an appellate court. Probably the best-considered case upon that subject, and one more often referred to than any other, is. that of City of Hastings v. Foxworthy, 45 Neb., 676, 63 N. W., 955, 34 L. R. A., 321. This case is especially referred to for the reason that it has more fully considered the subject under consideration than any other case cited. The syllabus is as follows:

“An appellate court, on a second appeal of a case, will not ordinarily re-examine questions of law presented by the first appeal, but where the case was on the first appeal remanded generally for a new trial and the same questions are presented on the second trial, the appellate court is not bound to follow opinions on questions of law presented on the first appeal and may re-examine and reverse its rulings on such questions, and should do so when the opinion first expressed is manifestly incorrect.”

While conceding that courts generally hold that the decision on a prior appeal is conclusive, though erroneous, the text in 2 Ruling Case Law, p. 226, contains the following statement:

“The better rule, and that more in accord with justice, however, is that though ordinarily a question considered and determined on the first appeal is deemed to be settled and not open to re-examination on a second appeal, it is not an inflexible rule, and if the prior decision is palpably erroneous it is competent for the court to correct it on the second appeal. This may be said to be the view which has for its support the trend of modern authority.”

In the- professional and judicial experience of each of the members joining "in this dissent, the law of the case, pronounced by the majority in its syllabus, has never been applied in this state. On the contrary, numerous cases have hitherto proceeded through the courts and been remanded for retrial without any suggestion of the application of the rule. It is for the first time held by this court that, however erroneous a decision of the appellate court may have been on the first review, such decision, if error is not prosecuted, is not only conclusive upon the appellate court, but also upon this court, which is its superior. Surely a court of last resort can cure the error of an intermediate court if the error be vital and the justice of the case require it. Even the text in Corpus Juris, upon which reliance is placed by the majority opinion, concedes that power when it says :

“As a general rule the decision of an intermediate court is not conclusive on appeal to a court of last resort.” 4 Corpus Juris, 1104.

In Keele, v. Atchison, Topeka & Santa Fe Ry. Co., 258 Mo., 62, 167 S, W., 433, it is held:

“While án opinion of a Court of Appeals on a former appeal in the same ease is persuasive and is usually followed, yet where, after a retrial, the whole case is brought to the Supreme Court and no part of it left behind, such an opinion is not binding on the Supreme Court as either res adjudicaba or the law of the case.”

To the same effect are Hennessy v. Bavarian Brewing Co., 145 Mo., 104, 46 S. W., 966, 41 L. R. A., 385, 68 Am. St. Rep., 554, and Paddock v. Missouri Pacific Ry. Co., 155 Mo., 524, 56 S. W., 453. In Missouri, Kansas & Texas Ry. Co. v. Merrill, 65 Kan., 436, 70 P., 358, 59 L. R. A., 711, 93 Am. St. Rep., 287, where the Supreme Court of that state overruled a former decision made in the same case, the court said:

“Counsel for defendant in error have invoked the rule stare decisis, and insist that the former decision must govern on the second appeal. This would come to us with more force if we were not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. We are fully satisfied that the rule of the former case is shattered by the pressing weight of opposing authority, and that reason is against it.”

Although the rule contended for in the syllabus is claimed to have been supported by the courts of Illinois, the later decision of that court discloses that if ever the rule existed it was not followed in more recent decisions:

“The question whether the construction given a written contract upon the first appeal to the Appellate Court is binding upon that court upon a second appeal need not be considered by the Supreme Court when reviewing the judgment upon the second appeal, as such construction is not, in any view, binding upon the Supreme Court.” Freet v. American Elec. Supply Co., 257 Ill., 249, (100 N. E., 933).

We have already said that the case of City of Hastings v. Foxworthy, supra, has considered the rule relating to the law of the case more fully than any other reported ease. In connection with that case appears a note comprehensively treating of this subject. Both case and note are found in 34 L. R. A., 321, et seq. On pages 321-325 the annotator states that though the rule contended for has been followed in some jurisdictions Ohio does not adhere thereto, but the doctrine there obtaining is that a prior decision is not conclusive if it is erroneous.

The rule stated in the opinion is not followed by the Supreme Court of the United States, nor was it ever sustained by the ¡Supreme Court of Ohio. Sixty-nine years ago the Supreme Court of this state definitely settled the rule in this jurisdiction. In the case of Aubrey v. Almy, 4 Ohio St., 524, it was held that the law of the case pronounced by an intermediate, appellate court, which remanded the case to a lower court for retrial, was not binding on this court, and was no bar to a writ of error thereto. The Supreme Court, in Hamilton county, while on circuit, had reversed an order of the court of common pleas and awarded a writ of procedendo to the latter court. The trial court obeyed the mandate of such Supreme Court as the law of that case. The case later came to the Supreme Court of the state for review. Thurman, J., in deciding the case, said, at page 526:

“That the court of common pleas was bound to' obey the writ of procedendo from the Supreme Court, is obviously true; from which it follows, that if we reverse their judgment, we disregard the decision of the Supreme Court. But, however inconvenient in practice this may be, we do not perceive how it can be avoided, if we find the judgment to be erroneous.”

It therefore appears from the decided case that although the common pleas court on the remand had followed the mandate of the Supreme Court on circuit as the law of that case, this court reversed the decision of the intermediate tribunal. The same principle was announced in Bane v. Wick, 6 Ohio St., 13. The same case had been before the Supreme Court at a prior time, and was reported in 19 Ohio, 328. This court on the second hearing doubted the correctness of its former decision, but could not arrive at the conclusion that it was erroneous. However, from the syllabus in that case, no other conclusion can be arrived at but that they would have overruled their former decision in the same case had they found it to be erroneous. The following is the syllabus:

“Where a case on demurrer to bill has been once determined by this court, or the late court in bank, and, demurrer being overruled, afterward comes up on bill, answer and testimony, which do not substantially vary the case as it stood on demurrer, this court will follow the prior decision, unless very clearly satisfied that it was erroneous.” (Italics ours.)

In Pennsylvania Co. v. Platt, 47 Ohio St., 366, 25 N. E., 1028, this court clearly announced the principle that if it found even its own decision made at a former review to have been erroneous it would not hesitate to reverse its prior decision. Part of the syllabus in that case is as follows:

“When it has been determined by this court that the petition in a case states a cause of. action, and the case afterwards comes, before the court for the review of alleged errors occurring at the trial, the court will follow the prior decision, unless very clearly satisfied that it is erroneous.” (Italics ours.)

The case of Russell, Admr., v. Bank, 31 O. C. A., 194, had been three times before the Court of Appeals of Hamilton county. Its last judgment was reviewed by this court in Russell, Admr., v. Bank, 102 Ohio St., 249, 131 N. E., 726. It was contended that the law of the case, as decided by the appellate court in its first hearing, should apply in the third hearing. That feature is discussed, not only by Judge Shohl of the appellate court, but by the judge delivering the opinion in this court, and since both judges adverted to the decisions of the Supreme Court of the United States upon the law of the case, and it is now claimed that that federal authority adheres to the rule presented in that syllabus, we will refer to the more recent decisions of the United ¡States Supreme Court upon this controversial point. -

In Messenger v. Anderson, 225 U. S., 436, 32 S. Ct., 739, 56 L. Ed., 1152, a portion of the syllabus is as follows: . . , _ .

“In the absence of statute, the phrase ‘law of the case,’ as applied to the effect of previous orders on the later action of the court rendering them in the. same case, merely expresses the ■ practice of courts generally to refuse to open what has been decided — not a limit to their power ” (Italics ours.)

As to the proposition that the law of the case made by an inferior court is not binding upon a higher tribunal, we cite Zeckendorf v. Steinfeld, 225 U. S., 445, 32 S. Ct., 728, 56 L. Ed., 1156. That case • arose in Arizona when it was a territory. On the first review the ¡Supreme Court of Arizona had pronounced a judgment and remanded the case for further proceedings. On the second review, the law of the case decided by the territorial tribunal was invoked in the Supreme Court of the United States, and the latter court denied the power of the territorial court to foreclose a review by the federal Supreme Court under the claim that on the remand the trial court had adopted the law of the case pronounced by the territorial court, and that therefore the decision of the territorial court on the first review had “become the law of the case and binding in its subsequent stages.” Mr. Justice Day, delivering the opinion of the court, said, at page 454 (32 S. Ct., 732) :

“Whatever might be the holding of the Supreme Court of Arizona as to the effect of this decision upon its own judgment and that of the District Court, the case reached this court for the first time upon the present appeal, and certainly the holding of the Supreme Court of Arizona at any of the stages of the case prior to this appeal would not be the law of the case for this court.”

A late case reported by the United States Supreme Court upon this subject is Southern Ry. Co. v. Clift, 260 U. S., 316, 43 S. Ct., 126, 67 L. Ed., 283, decided December 4, 1922, which came- to the federal court on writ of error from the Supreme Court of the state of Indiana. The latter court, in its first review, (Clift v. Southern Ry. Co., 188 Ind., 472, 124 N. E., 457), had decided a federal question and remanded the cause. After retrial a second appeal was taken to the Supreme Court of the state. Although not holding its former decision to be erroneous, the Supreme Court of Indiana held the decision on the first appeal to be the law of the case on the second appeal. On the writ of error to the high federal court the defendant in error moved to dismiss the writ because the state court had not decided any federal question on its second review. Counsel relied, in support of the motion, on the argument that the second judgment was rendered on a second appeal and that the court there decided that the decision “on the first appeal is the law of the case.” Mr. Justice McKenna, delivering the opinion of the court, said, at page 319, (43 S. Ct., 126):

“The prior ruling may have been followed as the law of the case but there is a difference between such adherence and res judicata; one directs discretion, the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission. * * * The court in the present case, as we have said, considered the constitutional question presented and decided against it, and to review its decision is the purpose of this writ of error. The motion to dismiss is denied.”

The Supreme Court of the United States emphatically denies the application of the rule where the purpose of the suit is to review the decisions of inferior courts in that high federal tribunal, and cites with approval Messenger v. Anderson, supra.

The latest pronouncement of the Supreme Court of the United States upon the law of the case was made within the last month, to wit, November 24, 1924, in Davis, Agent, v. O'Hara, 266 U. S., 314, 45 S. Ct., 104, wherein Mr. Justice Butler said:

“The ruling that the former decision of the state court became the law of the case does not affect the power of this court to re-examine the question.”

No valid reason can be suggested why the Supreme Court of the United States would not be bound by the “law of the case” erroneously pronounced by a state court, but might be bound by the “law of the case” erroneously pronounced by the United States District Court or the United States Circuit Court of Appeals. Federal questions do arise in state courts, as well as in the federal. Our Constitution gives us jurisdiction to review the judgments of our Courts, of Appeals; the federal law gives jurisdiction to the United States Supreme Court to review judgments of state courts iu certain cases. The majority opinion concedes:

“It was hut natural that the United States Supreme Court should refuse to submit to the judgment of a state court as a finality, in a case where a federal question was involved.”

If so, should not that high federal tribunal refuse to submit to the erroneous judgments of its inferior federal tribunals as a finality? Has the “law of the case” erroneously decided by a lower federal court a greater dignity than that erroneously pronounced upon the same federal question by the highest state court? I confess myself unable to make the distinction.

The Supreme Court of the United States makes no such distinction. A great many oases may be cited wherein that court refused to submit to an erroneous declaration pertaining to the law of the case by inferior federal tribunals, chief among which is Messenger v. Anderson, supra, and cited last month with approval by Mr. Justice Butler in Davis v. O’Hara. The second proposition of the syllabus in the Messenger case, reported in (225 U. S., 436, 32 S. Ct., 739), 56 L. Ed., 1152, is as follows.:

“A prior decision of a federal circuit court of appeals is not the law of the case for the Supreme Court when reviewing a later decision of the former court in the same case.”

This was an Ohio case involving the construction of a will concerning land in Ohio. It had been three times before the federal Circuit Court of Appeals. On its first review that court had erroneously construed the provisions of the will in holding that a devisee had taken a life interest only. It reversed and remanded the cause to the trial court for a new trial. The cause again came before the Circuit Court of Appeals for review (Anderson v. Messenger, 158 F., 250, 85 C. C. A., 468), and the judge delivering the opinion of that court said:

“We have been invited by counsel for defendant to reconsider the question of the construction of Henry Anderson’s will. We must decline to do this. The questions there decided are matters adjudged and have become the law of the case.”

On this second review the federal Circuit Court of Appeals refused to reconsider its construction of the will, but again reversed and remanded the cause for a new trial. In the meantime proceedings had been pending in the state courts, wherein the Supreme Court of Ohio construed the same will as conferring upon the devisee a defeasible fee instead of a life estate. Thereafter a third review was had in the federal Court of Appeals, and that court decided that, notwithstanding the Supreme Court of Ohio had in the meantime rendered a conflicting decision in construing said will, it still would follow its prior decision on the first review as the law of the case. The result was that the Supreme Court of the United States held, as announced in the foregoing syllabus, that it would not be bound by the decision of the federal Circuit Court of Appeals on its first review, and reversed the last judgment of the appellate federal court, although counsel argued that the law of the case on the first review became the law in the subsequent proceedings.

Let us test this question by a concrete case. A statute requires a railroad to be sued in a county where plaintiff resides, or the cause of action arose. It is sued elsewhere. Motion to the jurisdiction of the person and to quash the summons is made by defendant (where those facts are conceded), but is erroneously overruled on legal grounds. Defendant then answers and wins on the merits. Plaintiff prosecutes error, but the defendant files no cross-petition in error to the overruling of its motion to quash. The judgment is reversed on the merits and remanded for new trial. On the second trial defendant renews its objection to the jurisdiction. This is again overruled as the trial court has previously decided the law of the case against the defendant in respect to jurisdiction. Thereupon another judgment is recovered against defendant upon the merits. In prosecuting error here, is this court bound by the law of the case erroneously decided by the trial court in the first trial, where error was not prosecuted therefrom? This question is answered in the negative by the United States Supreme Court in Davis, Agt., v. O’Hara, supra. To hold otherwise would compel every litigant to prosecute error, directly or by cross-petition, in order to obtain, not the judgment of this court upon the whole case, but its views on every legal phase that may be presented upon the several trials. This the litigant needs do for his self-protection. Such practice is not conducive to the speedy end of litigation.

Much of the confusion arising from the application of this rule, and which is shown in the majority opinion, lies in the fact that text, oases, and dicta are cited where the rule has been applied, but where the court of last resort has not fownd palpable error in the decisions of the lower courts.

The case of Columbus Packing Co. v. State, ex rel. Schlesinger, prosecuting attorney, is directly in point. It was reported the first time in 100 Ohio St., 285, 126 N. E., 291, 29 A. L. R, 1429, and again in 106 Ohio St., 469, 140 N. E., 376. When the case reached this court on its first review, it was prosecuted upon interlocutory decrees made upon the pleadings as they then stood. Although the case had not been heard upon its merits in the lower courts, it was disposed of by this court upon the allegations contained in the pleadings, including the affidavits in their support. This court fully stated the law of the case arising upon such pleadings. Later the case was tried upon its merits and upon exactly the same pleadings, excepting a single defense made in the answer of the creamery company, which did not affect the case. After an affirmance by this court, and its remand for hearing upon its merits, the trial and appellate courts decided the case upon the 'law of the case pronounced by this court in its first review. However, this court upon a second review held that the law of the case arising from the same pleadings theretofore before it had been erroneously stated by this court on the first review, and reversed the case, not only because a premature judgment had been made by the trial court, but also because the law of the case stated in the syllables on the first review was erroneous.

The case of Pollock v. Cohen, 32 Ohio St., 514, is not germane. It does not mention or advert to the rule under consideration. All it determines is that the same plaintiff in error, on the same record, cannot present errors, other ■ than those of jurisdiction, on a second petition in error, when he could have presented or .failed to present them in the first review; and that errors not assigned Are presumed to have been waived. The rationale of all the better and most modern decisions leads us to the conclusion that 'this court is not bound to follow the decision of an intermediate or lower court where palpable error intervenes. Under Section 2, Article IY, of our Constitution, when a case is certified to this court by its direction, or by a certificate of conflict from the Court of Appeals, jurisdiction is lodged in the Supreme Court. The express provisions of that article of the Constitution give the latter court power to “review, or affirm, modify or reverse the judgment of the Court of Appeals.” The only judgment of a Court of Appeals that we now have or ever had in the instant case is a judgment of that court pronounced upon the second review. The chief reason given in the dicta of several opinions holding that the law of the case is conclusive upon the second review is that there must be an end to litigation; that it is a duty of a nisi prius court to obey the mandate of the appellate court, whether its decision be right or wrong. We must concede it to be the duty of the trial court to follow the decision of an appellate court in the same case, but surely the trial court should not follow such a decision if, in the meantime, the Supreme Court has held the decision to be wrong. A principle of law laid down by an appellate court upon reversing and remanding the cause is not binding upon that court in a second review “where the Supreme Court has, since the first appeal, decided the point involved contrary to the principle laid down. ’ ’ Zerulla v. Supreme Lodge, Order of Mutual Protection, 223 Ill., 518, 79 N. E., 160. In City of Hastings v. Foxworthy, supra, it is said, page 697 (63 N. W., 962):

“To enforce erroneous rulings, simply because the appellate court had directed the error, would be to pervert the law and sacrifice justice to the technicalities of practice. That the rule is not well founded in principle may be seen by the confusion of the courts in their efforts to base it upon a known principle.”

However,-in practice, we know that the doctrine does not always result in a more speedy end to litigation. Cases frequently arise where errors may be prosecuted to an appellate court upon the single ground of error in the admission or rejection of testimony. If the case is reversed and remanded there is nothing to prevent the same party from presenting in his second record for review an error relating entirely to a new subject-matter, such as the charge of the court, the decision upon a demurrer, or other vital ruling made in the second or subsequent trial of the case. We allude to this merely to show that the adoption of the rule does not always tend to end litigation.

Let us assume that an appellate court, in making a decision upon the first review, made a grave and serious mistake in overlooking some statute or constitutional provision vitally affecting the case; or that this court, its superior, had decided the principle otherwise after the appellate court had made its first erroneous decision and before the second review. Surely it cannot be claimed that the decision on the first review would prevail in face of the pronouncement, of the highest court of this state; nor would such decision, in any event, prevent this court from entertaining its constitutional jurisdiction. If on the second re view the appellate court is clearly satisfied that on its first review it overlooked a constitutional provision voiding a statute, undoubtedly it becomes the duty of that court to so declare. It would be its obvious duty to do so, for this court would not be bound by the law erroneously decided, for the reason that the Constitution gives it jurisdiction to review cases involving constitutional questions as a matter of right and not by favor through motion to certify. There is no reason why the principle applied to civil cases should not apply to criminal cases as well. Measured by this test, let us assume that a man has been indicted for murder, where no offense is charged in the indictment, or where the offense has not been condemned by statute. At the threshold of the case the defendant demurs, the demurrer is overruled, trial proceeds, and the accused is convicted of murder in the first degree. He prosecutes error to the appellate ■ court. That court reverses for error in the admission or rejection of evidence, but in its decision holds the indictment valid. The case is remanded,' and the accused is again tried, convicted, and sentenced. A second review is obtained. Can it be claimed that if the appellate court, or even the Supreme Court, of the state, holds that the former decision was patently erroneous, the accused must die notwithstanding the latter courts should later hold that no offense had been charged? Would it not become the duty of the Supreme Court of the state in such event to discharge the defendant for the reason that no crime had been committed by or charged against him? Or must he suffer the death penalty because the doctrine, the law of the ease, though an erroneous one, has pronounced it? In .such and similar cases should we not follow the maxim employed by the chief justice of a Georgia court when he had this rule under consideration:

“The maxim for a Supreme Court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia ruat coelum.”

There are other reasons,. though not quite so important, why this court under its constitutional powers should review the law of this ease made by a prior decision of the Court of Appeals. The Court of Appeals of the First Appellate District had pronounced what it deemed to be the law of the case, and remanded the case for trial. Accordingly, the case was tried and again reached the Court of Appeals, but was heard the second time by the judges of the Court of Appeals of the Fourth Appellate District. These judges certified that the judgment upon which they agreed was “in conflict with a former judgment pronounced upon the same question by the Court of Appeals of the First District in an unreported opinion in this cause.” Section 6, Article TV, of the Ohio Constitution, provides that in such event the judges must certify the record of the case to the Supreme Court for review and final determination. Since this case is in this court upon a certificate of conflict, this court must entertain jurisdiction and decide which of the two decisions rendered by separate Courts of Appeals is correct. If the decision of the former Court of Appeals in the same case be erroneous, it becomes the constitutional duty of this court to so adjudge.

There is an additional reason, though a minor one, why the law of the case cannot here be urged on this record. There is nothing in the record itself disclosing how and why the Court of Appeals decided the point of law involved on the first review. The claim is made that if recourse is had to the opinion of the appellate court on the first review it can be discerned what has been decided. The opinion is no part of the record. It comes only to the attention of this court by the claim made by counsel for plaintiff in error in his argument. In this phase of the case we do not think it can be said that the law of the case is properly before us.

Outside of what has been said, we do not think that the important points under consideration should be decided by this court without full and complete argument upon the questions. The only reference made by counsel for plaintiff in error was a line in his brief to the effect that the decision of the first appellate court on the first review should have been “followed, res ad judicata.” The principles of res ad judicata do not apply. No cases were cited, touching the law of the case, by counsel for plaintiff in error, nor was the point alluded to in the brief of counsel for the city. And again, in view of the fact that the last judgment of the appellate court was affirmed, there was no necessity for this court to pass upon so important a procedural question as that contained in the first three propositions of the syllabus.

Matthias and Day, JJ., concur in dissenting-opinion.  