
    THOMAS VENARD, Respondent, Impleaded with BARNEY McMANAMON, v. WILLIAM G. GREEN and EDWARD AUSTIN, Intervenors and Appellants, Impleaded with OLD HICKORY MINING AND SMELTING COMPANY.
    Second Appeal — Law of the Case. — The decision of a case on appeal becomes the law of the case, and on a second appeal of the same case, the questions of law and fact being the same, the judgment appealed from, if in accordance with the decision on the former appeal, will not be reversed.
    Appeal from á judgment of- the district court of the second district. The ninth finding of fact made by the trial court is as follows:
    “(9) That on th'e twenty-second day of September, 1883, Barney McManamon, co-plaintiff with the plaintiff Thomas Yenard, in this action, obtained and received judgment against the Old Hickory Mining & Smelting Company, for the sum of $403.09 damages, and for costs of suit; and a decree of foreclosure, and order of sale; that the Old Hickory Lode or Mining Claim, hereinbefore described, the property of the defendant the Old Hickory Mining & Smelting Company, be sold for the payment of the said judgment, debt, and costs recovered by said McManamon against said defendant company; and that said property was sold under said judgment., order, and decree of foreclosure, and order of sale, to the plaintiff McManamon, for the sum of $441.69.”
    The other material facts appear in the opinion of the court and in the opinion in the case of Venarcl v. Old Hickory M. & 8. Co., ante p. 67.
    
      Mr. U. J. Wenner and Mr. Thos. Maloney, for the appellants.
    Cited: Jones on.Mort., vol. 2, sec. 1654; Poweshiek v. Dennison, 36 Iowa, 244; Garter v. Walker, 2 Ohio St., 339; Frische v. Kramer, 16 Ohio, 125; West B. B. v. Chester, 11 Penn. St., 282.
    
      Mr. Presley Denny, Mr. John W. Christian, and Messrs. Sutherland & McBride, for the respondent.
    The questions of law and of fact being the same, the decision on the former hearing becomes the law of the case.
    And on a second appeal the court cannot reverse its ruling on any question of law which was decided on the first appeal. The first decision, whether right or wrong, has become the law of the case: Pollock v. McGrath, 38 Cal., 666; Yates v. Smith, 38 Cal., 60; Page v. Fowler, 37 Cal., 100; 43 Cal., 323.
    And a judgment by the court, in accordance with the decision or findings, cannot be reversed on appeal from the judgment, nor the law reopened or disregarded on subsequent appeal: Yales v. Smith, 40 Cal., 662; Pico v. Cuyas, 48 Cal., 639; Lick v. Diaz, 44 Cal., 479; Gates v. Salmon, 46 Cal., 362.
   Powers, J.:

This case has already been before this court: Venard v. Old Hickory Min. Co., ante p. 67. At the June term, 1885, a petition for rehearing was filed and denied. Upon the case being remanded, the court below entered up judgment, and the sole question on this hearing is whether judgment was entered in accordance with the opinion of this court. We decline to consider tbe question raised by tbe appellant as to whether this court erred in its construction of tbe law. That was a proper subject upon tbe petition for a rehearing. Tbe questions of law and fact being tbe same, tbe decision on the former hearing becomes tbe law of tbe case. Upon a second appeal, when tbe questions are tbe same, this court will not reverse its rulings as made on tbe first appeal. So far as tbe particular case is concerned, tbe first decision becomes tbe law (Pollack v. McGrath, 38 Cal., 666; Yates v. Smith, 38 Cal., 60; Page v. Fowler, 37 Cal., 100; Tyler v. Magwire, 17 Wall., 282, 283; Chateau v. Allen, 74 Md., 56; Martin v. Heinlen, 59 Cal., 181); and a judgment of the court below in accordance with tbe opinion of this court will not be reversed on appeal from tbe judgment (Yates v. Smith, 40 Cal., 662; Pico v. Cuyas, 48 Cal., 639; Lick v. Diaz, 44 Cal., 479; Gates v. Salmon, 46 Cal., 362).

Let us therefore determine whether tbe judgment of tbe lower court is in accordance with tbe decision of this court. Emerson, J., in delivering tbe opinion, uses this language: “Tbe appellant was entitled to a judgment against tbe respondents for tbe amount of bis wages which tbe court finds due and unpaid, and I can perceive no reason why be was not entitled to a decree foreclosing bis lien, and for an order of sale as against tbe intervenors. His lien antedated that of tbe judgment upon which their rights were founded, and be has done nothing to forfeit it, waive or postpone it. It can make no difference with bis rights, as against tbe respondents or inteivenors, that bis co-plaintiff bad obtained a judgment for bis claim, and a foreclosure of bis lien. Tbe record shows that tbe property will more than satisfy both liens, so that there will be no question about apportioning tbe proceeds of tbe sale. Tbe purchasers at tbe execution sale, who are tbe inter-venors here, must be held to have purchased the property subject to tbe prior lien of tbe appellant.

While we are not exactly satisfied with tbe reasoning of tbe learned judge, still, right or wrong, his conclusions are tbe law of this case, aixd as tbe judge of tbe court below carefully and. conscientiously followed tbe opinion, judgment must -be affirmed, with costs.

Zane, C. J., and Boreman, J., concurred.

Appellants filed a petition for rehearing.

This petition was denied, the decision thereon being as follows:

Powers, J.:

This case has been before this court in various phases several times: Venard v. Old Hickory Min. Co., ante p. 67. It is now before us upon a petition for a rehearing. The petition is a carefully prepared criticism of the previous decisions of the court. In the course of the petition counsel for the petitioners quaintly suggests that if this court “will carefully consider these two points” — referring to his petition — “and put in writing the conclusions thereon, we will cheerfully acquiesce in the result, whatever it may be; but, in view of the expression of dissatisfaction with the reasoning of Judge Emerson, contained in the last opinion, we are emboldened to say, with all due respect, that, in the pressure of business, the court has heretofore failed to give the attention to the questions involved which their importance seems to require.” We cannot devote our time to answering. ingenious criticisms of our opinions, merely that counsel may cheerfully acquiesce in the result, and it is sufficient for us to say that counsel has stated no ground for a rehearing. We have given this case very careful consideration, and we are satisfied with the result. We must call the attention of counsel to the previous decisions of this court with reference to rehearings. The petition is denied.

Zane, C. J., and Boreman, J., concurred.  