Highland v. Davis, 8927.

• Citation: 6 S.E.2d 922
• Decision Date: 24 October 1939
• Docket Number: No. 8927.,8927.
• Parties: HIGHLAND. v. DAVIS et al.
• Court: Supreme Court of West Virginia

6 S.E.2d 922

HIGHLAND.
v.
DAVIS et al.

No. 8927.

Supreme Court of Appeals of West Virginia.

Oct. 24, 1939.

[6 S.E.2d 922]

Dissenting Opinion Dec. 15, 1939.

Syllabus by the Court.

1. "The decree of this Court, upon a question decided by the trial court is final, and the questions involved and adjudicated on a former appeal generally cannot be reviewed on the second appeal. An exception to this rule is stated in Syl. 7, Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009." Atwater & Co. v. Pall River Pocahontas Collieries Co, 119 W.Va. 549, 195 S.E. 99.

2. The opinion of the court and points of syllabus in Highland v. Davis, 119 W.Va. 501, 195 S.E. 604, re-examined and approved.

3. Where, on a prior appeal in a given case, the appellate court has segregated one factual point or element of the case, made the ultimate decision of the case to turn thereon, and remanded the case for a specific finding of the trial court on that point, thus accentuating its importance beyond that anticipated by the parties when the evidence in the case was brought forward, the trial court, on motion made after the remand, should afford to the parties opportunity to adduce and submit, and have considered by the trial court on the segregated question, together with the competent evidence already in the record, such further, legal and pertinent evidence as they are advised is proper.

HATCHER, J, dissenting in part, and KENNA, J, dissenting.

Appeal from Circuit Court; Harrison County.

Suit by Cecil B. Highland, executor and trustee of the last will of Virgil L. Highland, deceased, against J. Hornor Davis, The Exponent Company, and others, to cancel sale by defendant Davis to the Exponent Company of a block of shares of common stock, which stock had been pledged by decedent in his lifetime to secure a note executed by him, and which stock was repledged by his executors at a later time to secure note for unpaid portion of the original debt. From a decree dismissing plaintiff's bill, the plaintiff appeals.

Reversed and remanded.

Robinson & Stump, John S. Stump, Jr., Lawrence R. Lynch, Hoffheimer & Stotler, and Geo. M. Hoffheimer, all of Clarksburg, for appellant.

Robert S. Spilman, of Charleston, and Steptoe & Johnson and James M. Guiher, all of Clarksburg, for appellees.

MAXWELL, Judge.

This suit, instituted by Cecil B. Highland, executor and trustee of the last will of Virgil L. Highland, deceased, plaintiff, against J. Hornor Davis, The Exponent Company, a corporation, J. Hornor Davis and Anthony F. McCue, trustees, and Clarksburg Publishing Company, a corporation, defendants, has for its purpose the cancellation of a sale February 17, 1935, by Davis to The Exponent Company of a block of 568 shares of the common stock of the Publishing Company, which stock had been pledged by Virgil L. Highland in his lifetime to secure a note executed by him, and which stock was re-pledged by his executors at a later time to secure a note for the unpaid portion of the original debt.

On the first review hereof (Highland v. Davis, 119 W.Va. 501, 195 S.E. 604, 611) this court reversed the trial chan-

[6 S.E.2d 923]

cellor's decree cancelling the sale, and remanded the case for further proceedings. On the remand the sole question left open by this court for the trial chancellor's decision was whether the price for which the stock was sold was so grossly inadequate as to indicate bad faith. Specifically, we said: "Unless, on the remand, the trial chancellor should arrive at the conclusion that the price was so grossly inadequate as to indicate bad faith, the sale should not be set aside and the plaintiff should not be entitled to redeem." Our opinion concluded: "* * * we reverse the decree of the circuit court and remand this case to be dealt with in accordance with the principles herein contained."

After the case had been recommitted, the circuit court gave further attention thereto, on the record as it had been developed prior to the first appeal; considered only the question of value; ascertained that there was no gross inadequacy in the price for which the stock had been sold, and dismissed the plaintiff's bill by decree entered January 9, 1939. From that decree the plaintiff was awarded this appeal.

Soon after the case had been returned to the circuit court the plaintiff entered, under date of April 18, 1938, several motions, among which were the following: (1) That the court set aside and vacate the order of submission which had been entered July 14, 1936; (2) that if that motion be overruled the court set aside so much of the submission order as is inclusive of the question of adequacy or inadequacy of price; and (3) "that the plaintiff and defendants be granted leave to adduce, take and file further evidence, by depositions and documentary evidence, or either of them, in respect of the gross inadequacy, or the contrary, of the price at or for which said The Exponent Company acquired, or purported to acquire, said voting trust certificate."

The trial court overruled all of these motions and others made by the plaintiff on the same date. Later, after full argument, the court took the case under advisement and subsequently entered final decree as above stated.

The appellant assigns as error the court's adverse ruling on the motions of April 18, 1938, also the finding of the court in its final decree of January 9, 1939, that the price paid for the stock was not gross ly inadequate, and its dismissal of the plaintiff's bill.

The trial court's declination to open for reconsideration the questions other than price and value of the stock was in entire accord with this court's opinion and mandate on the former review. This court, having specifically ascertained that there was no fraud independent of price, referred that sole matter back to the trial court, and that court correctly interpreted our action in that particular.

On the present appeal it is vigorously and ably urged on behalf of appellant that the appellate court's original decision herein was erroneous and should now be corrected; that the rule known as "law of the case" is not absolute but yields to the ends of justice where on a later review of a case the court ascertains that it initially committed error. We recognize that, within defined limitations, this court may alter or depart from its prior decision in the same case. Wiggin v. Marsh Lumber Co., 79 W.Va. 651, 91 S. E. 532; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009. But the "law of the case" will not be departed from except where the court has become convinced that in the first instance it erred, and that a different course must be pursued in order that justice may be done. Atwater & Co. v. Fall River Pocahontas Collieries Co., 119 W.Va. 549, 195 S.E. 99; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355, and cases cited.

For the reasons set forth for the court by Judge Riley in our first decision, the majority of the court are of...