Headley v. Challiss

The opinion of the court was delivered by

This is a proceeding in error to review the decision of the district court overruling a motion to set aside a judgment. The judgment was rendered in an action to *606foreclose- a mortgage, and upon service only by publication. This case has been once before to this court. (Challiss v. Headley, 9 Kas. 684.) Upon abundant authority, and well-settled principles, the decision at that time has become the established law of the case. Phelan v. City of San Francisco, 20 Cal. 40; Polack v. McGrath, 38 Cal. 666; Yates v. Smith, 40 Cal. 662; McKinlay v. Tuttle, 42 Cal. 570; Washington Br. Co. v. Stewart, 3 How. 413; Booth v. Commonwealth, 7 Metcalf, 286; Hosach’s Fx’rs v. Rogers, 25 Wend. 313; Mason v. Mason, 5 Bush. (Ky.) 187. Whatever therefore, was at that time decided, is not now a matter for reexamination. Nor is this limited to the mere questions noticed in the opinion, nor indeed to the actual matters presented by the respective counsel, and considered by the court. It extends to all matters actually existing in the record, and necessarily involved in the decision. Thus, in the case from 3 Howard, cited above, a question was raised as to the jurisdiction of the court, but as the case had once before been taken to the court, and a decision rendered upon the merits, the question of the jurisdiction was held to be also settled, although as a matter of fact it had not been considered; and this, because jurisdiction is involved and assumed in an inquiry into and a decision upon the merits. See also the cases above cited from 7 Metcalf, 25 Wend., 5 Bush., and 38 Cal.

The motion in the district court was to set aside the judgment for want of service. The question presented to the court, and passed upon when the record was brought here before, was as to the right to amend the record by supplying the correct notice and proof of publication. There had been two cases between the same parties, and in the record of this case had been introduced the notice and proof belonging to the other. The district court held that this amendment could not be made. This court reversed such ruling, and decided that the amendment ought to be permitted. Now, while the motion filed was broad enough to include and did specifically mention the insufficiency of the affidavit, the principal matter now presented, yet the attention of this court was not called *607to it, and the case was decided upon the points just noticed. Subsequently, the learnéd counsel for the Headleys moved for a rehearing, upon the ground specifically that the affidavit was fatally defective, and that hence the decision of the district court ought to be sustained, whether there was error or not in refusing leave to amend — for, though the notice and proof of publication were beyond exception, if the affidavit therefor was fatally defective, the service was bad, jurisdiction was not acquired, and the motion to set aside ought to have been sustained. This motion was overruled, upon the ground, as counsel correctly suppose, that the question raised was a new question, not presented by brief or argument of counsel at the first hearing. For while this court may in its discretion} and in furtherance of justice, upon a motion for a rehearing examine into new questions, and upon them modify or revise its rulings, yet it is purely a matter of discretion, and not of legal right; and the court will seldom examine beyond the questions already presented. A party may not settle the law of his case by piecemeal before this court, any more than he may settle the facts in that way before the district court. When the case is tried, he must be prepared to present his entire claim, or his entire defense. Now, the sufficiency of the affidavit was a question actually existing, and apparent upon the record, and really involved in the -decision, for an error in refusing leave to amend a record works no substantial injury to a party when the record as amended would be equally void. Upon these considerations, and upon these alone, we hold that the record of the case and judgment, as presented, must be sustained, and the ruling of the district court affirmed. As to the nature of the amendments made, and proof offered in support of the record, we think it unnecessary to more than refer to the opinions in this case when here before, and the similar case of Foreman v. Garter, 9 Kas. 674.

The judgment will be affirmed.