Esch v. White
| Citation | 85 N.W. 718,82 Minn. 462 |
| Decision Date | 12 April 1901 |
| Docket Number | 11,841 - (215) |
| Parties | JACOB J. ESCH and Another v. WILLIAM G. WHITE |
| Court | Minnesota Supreme Court |
Original Opinion Filed February 18, 1901
Law of the Case.
An order of the district court, where it has jurisdiction of the person and the subject-matter, is conclusive, unless set aside upon review by the appellate court. If such order is not reviewed, but acquiesced in by the parties, it is to be treated as the law of that case and final.
Undertaking on Appeal -- Consideration.
Where the district court holds that an undertaking on appeal from the appointment of a receiver is not sufficient, and requires another, of different form, to discharge contempt proceedings against the appellant, such new undertaking is a sufficient consideration for a promise to indemnify the sureties to whom such promise is made.
Foreclosure of Mortgage -- Account of Receiver.
Where upon foreclosure of a mortgage, a receiver has been appointed to take charge of the property, whether the mortgagor or owner of the property is entitled to the rents and profits, under the rule in Marshall & Ilsley Bank v. Cady, 75 Minn. 241, cannot be determined in a collateral action, where all the parties interested are not before the court, and there has been no accounting or settlement with such receiver.
Former Appeal -- Law of the Case.
No new facts are set forth in the amended answer that require any modification or change in the rule laid down on the former appeal of this case. Esch v. White, 76 Minn. 220.
Pleading -- Real Party in Interest.
Held, upon the allegation in the amended answer that plaintiff was not the real party in interest, such averment is a conclusion of law, and insufficient.
On April 12, 1901, the court filed the following opinion:
Petition on Rehearing LOVELY, J.
Upon an application for reargument, errors in the statement of facts in the opinion have been pointed out. In the protracted litigation which has led up to the present action several appeals were taken to this court, among them one from the order appointing the receiver in the bank suit, and another from a subsequent order refusing to discharge such receiver. Farmers Nat. Bank v. Backus, 67 Minn. 43, 69 N.W 638. No reference was made in the record or argument on the present hearing to the latter order, and the court was misled by that fact, and erroneously stated that the two undertakings of the plaintiffs were given on the appeal from the order appointing the receiver, when they were in reality given on the appeal from the order refusing to discharge such receiver, not referred to in opinion, but cited above. It should be further stated that, after the appeal from the order appointing the receiver had been sustained in this court, the district court refused Burdic's...
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