Wilensky v. Brady

Lamar, J. In certiorari cases the judge of the superior court, may make one of four orders: (1) if there is no error, the writ should be dismissed; (2) if there is no question of fact, and an error of law which must finally govern the case, the judge of the superior court must himself make a final disposition of the cause;; (3) if there is other form of error, he may grant a new trial generally, returning the case to the court from which it came; or (4) if such error has been committed, he may return the case to. the lower court 'with instructions. Unless the opposite party obtains a reversal of the judgment containing the instructions,, they become the law of the case, and must be given full effect on the second trial. Not only is this required by the express language of the statute, but the same result would follow from the general law applicable to judgments. Whether considered under the head of stare decisis, law of the case, or res adjudieata, instructions like those contained in this record are binding. The. evidence on the second trial was the same as on the first. In view of that fact and of the instructions of force, the jury were-bound to find for the plaintiff. This certiorari-should have been sustained and the case again returned to the justice’s court, with instructions to follow the directions previously given. Judgment reversed. All the Justices concur. .