Helper State Bank v. Crus

• Decision Date: 12 July 1938
• Docket Number: 5974
• Citation: 95 Utah 320,81 P.2d 359
• Court: Utah Supreme Court
• Parties: HELPER STATE BANK v. CRUS

81 P.2d 359

95 Utah 320

HELPER STATE BANK v. CRUS

No. 5974

Supreme Court of Utah

July 12, 1938

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by the Helper State Bank against Annie Crus to recover money paid to the defendant upon an alleged promise to divide the money among the nearest relatives of John Crus, deceased, and wherein defendant claimed money as a gift made during the lifetime of the deceased. From a judgment for the plaintiff defendant appeals.

REVERSED AND REMANDED.

McCullough & Callister, of Salt Lake City, for appellant.

Chris Mathison, of Salt Lake City, for respondent.

WADE District Judge, FOLLAND, C. J., and HANSON, MOFFAT, and LARSON, JJ., concur. WOLFE, J., being disqualified, did not participate.

OPINION

WADE, District Judge.

The Defendant, Annie Crus, brought this appeal. The case was here once before, on an appeal by the Plaintiff, Helper State Bank, and is reported in 90 Utah 207, 61 P.2d 318.

The facts are substantially as follows: John Crus, having a savings account in the Bank and desiring his money to go to Annie Crus, his sister-in-law, upon his death, rather than to his daughter, discussed the matter with the cashier of the Bank, who thereupon endorsed on the Crus signature card, on the ledger sheet covering the account, and on the passbook, the following words: "In case of death, pay to Annie Crus of Salt Lake City, Utah, without recourse." Thereafter, two days prior to his death, the deceased called Annie Crus and the Cashier of the Bank to his bedside, and told them he desired her to get his money which was in the bank, amounting to $ 1,805. The cashier thereupon produced a signature card of the Bank, which Annie Crus signed in the presence of the cashier and John Crus. The card was retained by the cashier of the Bank and made a part of its files. The Bank passbook was not delivered to her during the lifetime of the deceased. After the death of John Crus, at the request of Annie Crus, the Bank paid the funeral expenses and some other claims, and thereafter delivered the balance of the account, in the sum of $ 1,534, to Annie Crus. Thereafter an administrator was appointed to administer the estate of John Crus, who brought suit against the Bank and Annie Crus for this money. The Bank, by its pleadings, admitted its liability, and judgment was rendered against it for the above amount, which it paid, and suit was thereupon abandoned against Annie Crus.

Thereafter the Bank brought this action, alleging that it paid this money to the defendant, Annie Crus, solely upon her promise to divide the same among the nearest relatives of the deceased, and for no other consideration. This the defendant denies, and she alleges that the deceased gave her the money during his lifetime.

On the first trial the District Court denied the plaintiff's motion for a directed verdict, but instructed the jury that the evidence "is insufficient to show a valid gift of the money to the defendant during deceased's lifetime," and submitted the case to the jury solely upon the question whether or not when the defendant received the money she promised to divide the same among the nearest relatives, as alleged. The jury returned a verdict in favor of the defendant. Plaintiff appealed, and this court held that, there being no evidence of a gift of this money to the defendant during the lifetime of the deceased, it could make no difference whether she promised to divide this money among the nearest relatives, or not, and that in either event she received the money under such circumstances as in equity and good conscience would require her to return it to the Bank, and therefore the trial court should have directed a verdict in favor of the plaintiff. The case was remanded to the District Court for a new trial.

On the new trial the pleadings were the same, and the evidence was substantially the same as on the former hearing, and the trial court directed a verdict in favor of the plaintiff--and the defendant brings this appeal. She contends that, the trial court on the first trial having taken from the jury the question of whether or not there was a gift of this money to the defendant by the deceased before his death and the defendant not having appealed from this ruling, that question was not before the court on the former hearing and therefore could not have been decided. She further argues that the doctrine of the "law of the case" in most courts does not have the effect of res judicata, even though the same issues were involved, but that it is only a rule of convenience, and that it is the duty of the court to correct errors on second appeal, especially where the matter was not well considered, and for those reasons this court should now determine whether or not there was sufficient evidence to go to the jury on the question of whether the deceased gave this money to the defendant during his lifetime.

It is a well-established rule in this jurisdiction, as well as in a majority of other jurisdictions, that where the questions of law and fact are the same the decision of the first appeal, whether right or wrong, becomes the law of the case on second appeal and is binding as well on the parties to the action, the trial court, and the appellate court. To this effect was Venard v. Green, 4 Utah 456, 11 P. 337; Societe des Mines v. Mackintosh, 7 Utah 35, 24 P. 669; Krantz v. Rio Grande Ry. Co., 13 Utah 1, 43 P. 623, 32 L.R.A. 828; Brim v. Jones, 13 Utah 440, 45 P. 46, 352; Silva v. Pickard, 14 Utah 245, 47 P. 144; People's B. & L. Ass'n v. Fowble, 18 Utah 206, 55 P. 57; Potter v. Ajax Mining Co., 22 Utah 273, 61 P. 999; Herriman Irrigation Co. v. Keel, 25 Utah 96, 69 P. 719; State v. Mortensen, 27 Utah 16, 74 P. 120, 350; Corporation of Members of L. D. S. v. Watson, 30 Utah 126, 83 P. 731; Teakle v. San Pedro Railroad Co., 36 Utah 29, 102 P. 635, 639; Grand Central Mining Co. v. Mammoth M. Co., 36 Utah 364, 104 P. 573, Ann. Cas. 1912A, 254; Grow v. Oregon S. L. Ry. Co., 47 Utah 26, 150 P. 970; Chadwick v. Beneficial Life Ins. Co., 56 Utah 480, 191 P. 240; Thompson v. Reynolds, 59 Utah 416, 204 P. 516; Huntsman v. Huntsman, 61 Utah 376, 213 P. 179; Forbes v. Butler, 73 Utah 522, 275 P. 772; Utah State Nat. Bank v. Livingston, 74 Utah 456, 280 P. 327; Sessions v. Dee Memorial Hospital Ass'n, 94 Utah 460, 78 P.2d 645.

But the real question to be determined, as far as the "law of the case" doctrine is concerned, is: Did this court, in making its former decision, have before it the question of whether or not there was a gift of this money to Annie Crus during the lifetime of the deceased, so that its former decision is now the "law of the case" and res judicata and this court is now bound by that decision and cannot examine into that question? That the court was of the opinion that there was not sufficient evidence of such a gift to be submitted to the jury is clear from the following excerpt from that opinion:

"The bank passbook was not delivered to the defendant during the lifetime of the deceased, nor was there any other evidence of transfer of title prior to the death of John Crus.

"If there was no gift, as the lower court properly concluded * * * then it is clear that the defendant had money belonging to the plaintiff which in justice and good conscience she should return. It seems almost unnecessary to say that the attempted testamentary disposition of the funds would not give the defendant title to them."

But, was there any issue on that question before the court at the time of making that decision? The trial court had taken that question from the jury, on the ground that the evidence was insufficient to show a valid gift of this money to the defendant during the lifetime of the deceased. The plaintiff, who was the appellant on the former appeal, did not complain of nor appeal from that ruling and did not assign that ruling as error, the ruling being in its favor, and it, being satisfied with that ruling, could not assign it as error; but, on the other hand, it devoted some of its brief to arguing that the ruling was correct. The defendant, while not satisfied with the ruling, did not appeal therefrom, presumably for the reason that she had obtained a judgment in the lower court for just what she asked and was satisfied with the judgment, and did not take a counter or cross appeal. And she made no argument whatever on this question.

This court, in Herriman Irrigation Company v. Keel, 25 Utah 96, 69 P. 719, said that (page 721):

"On appeal, all questions to be determined must be raised by assignments of error, and in the appellate court only questions so raised can be presented and determined. * * * Before the appellate court can review the action of the trial court to determine a question such question must be raised by an assignment of error. * * * It is a general rule of practice in this court that all errors assigned, but not insisted upon in the appellant's brief, will be disregarded, and considered as waived and as raising no question for determination. Only such questions, therefore, * * * as are raised by assignment of error, and presented in the appellant's brief, are before the supreme court for determination."

Under the rule above laid down, clearly that question was not before this court.

Again, in the case of Silva v. Pickard, 14 Utah 245, 47 P. 144, quoting from an opinion by Mr. Justice Field, later of the Supreme Court of the United States, in the case of Leese v. Clark, 20 Cal. 387, 417, is the following (page 145):

"A previous ruling of the appellate court upon a point distinctly made may be only authority in other cases, to be followed and affirmed, or to be modified and overruled, according to its intrinsic merits. But,...