Warren v. Robison

• Decision Date: 27 April 1900
• Citation: 21 Utah 429,61 P. 28
• Parties: ELINA WARREN, NETTIE STEVENS, M. J. HOGAN, R. J. HILL, ALBERT SADD, JOHN BRENNAN, JOHN ATKINSON, A. E. SHAW, HYRUM MADDEN, AND JOHN J. CORTEZ, APPELLANTS, v. THEODORE ROBINSON, CHAS. M. BROUGH, H. H. SPENCER, GEORGE MURPHY, AD. KUHN, JOHN MAGUIRE, R. A. WELLS, NEWELL BEEMAN, GEORGE W. PERKINS, S. S. SCHRAMM, W. W. COREY, CITIZENS' BANK OF OGDEN, AND J. C. ARMSTRONG, RECEIVER, RESPONDENTS
• Court: Utah Supreme Court

61 P. 28

21 Utah 429

ELINA WARREN, NETTIE STEVENS, M. J. HOGAN, R. J. HILL, ALBERT SADD, JOHN BRENNAN, JOHN ATKINSON, A. E. SHAW, HYRUM MADDEN, AND JOHN J. CORTEZ, APPELLANTS, v. THEODORE ROBINSON, CHAS. M. BROUGH, H. H. SPENCER, GEORGE MURPHY, AD. KUHN, JOHN MAGUIRE, R. A. WELLS, NEWELL BEEMAN, GEORGE W. PERKINS, S. S. SCHRAMM, W. W. COREY, CITIZENS' BANK OF OGDEN, AND J. C. ARMSTRONG, RECEIVER, RESPONDENTS

Supreme Court of Utah

April 27, 1900

Appeal from the Second District Court, Weber County, Hon. Wm. M McCarty, Judge.

Second appeal of this case; first appeal found in 19 Utah 289. Action by plaintiffs as stockholders of defendant bank, on behalf of themselves and all other stockholders, creditors and their suit against defendants for an accounting, and for damages alleged to have been occasioned by reason of the negligence of individual defendants as directors and officers, in the management of the bank. Certain additional pleadings were filed after reversal at the former hearing and thereafter, on the call of the case for trial, plaintiffs submitted the records of the former trial, and rested their case. Thereupon counsel for defendants moved for a judgment of non-suit, which motion was sustained, and the action dismissed. Plaintiffs thereupon appealed.

Reversed and remanded.

M. D Lessenger, Esq., A. J. Weber, Esq., and Elijah Farr, Esq., attorneys for appellants.

"The construction of the intent and meaning of the opinion and mandate of the supreme court is not a matter for the exercise of judicial discretion by the circuit court." Gaines v. Rugg, 148 U.S. 228.

"If the circuit court makes mistakes or misconstrues the decree of the supreme court and does not give full effect to the mandate, its action may be controlled by a new appeal." Perkins v. Fourniquet, 55 U.S. 328, 14 How. 328, 14 L.Ed. 441; In re Wash., 140 U.S. 91; City Bank v. Hunter, 152 U.S. 512; In re City Bank, 153 U.S. 246.

"But the circuit court will consider and decide any matter left open by the mandate of this court, and its decision upon such matters can be reviewed by a new appeal only." Hinckley v. Morton, 103 U.S. 764; Mason v. Pewabic Min. Co., 153 U.S. 361; Nansen, etc., R. Corp., v. Boston, et al., 5 U.S. App. 97.

The opinion delivered by this court at the time of rendering its decree may be consulted to ascertain what was intended by its mandate, and it is for this court to construe its own mandate. Siebald v. U.S., 12 Pet. (U.S.) 493; West v. Brashear, 14 Pet. (U.S.) 51; Wayne Co. v. Kennicott, 94 U.S. 498.

"No question once considered and decided by an appellate court can be re-examined at any subsequent hearing of the same case. And upon reversal by this court of the decree of the circuit court sustaining plaintiff's exceptions to the relief prayed for, and upon remanding the case for further proceedings, the parties have a right to file new pleadings and allow amendments to the proceedings for the purpose of more fully or clearly presenting the facts at issue between the parties, but not to re-try the issues decided." In re Sanford Fork and Tool Co. et al., 160 U.S. 247; Coombs v. Salt Lake & F. D. Ry. Co., et al., 11 Utah 13; 39 P. 503; Argenti v. City of San Francisco, 30 Cal. 458; Argenti v. Sawyer, 32 Cal. 415; Ryan v. Tomlinson, 39 Cal. 639; Latla v. Granger, 167 U.S. 81; Hill v. Draper, 37 S.W. 574; Wayne County v. Kennicott, 94 U.S. 498; Soule v. Dawes, 14 Cal. 248; Crowell v. Gilmore, 17 Cal. 195; Nat. Ins. Co. v. Nat. Loan Assn., 53 N.W. 546; Jordan v. Humphries, 21 N.W. 713; Re Potts, 166 U.S. 263; Minnesota Linseed Oil Co. v. Montague, 21 N.W. 184; Chandler v. Bank, 11 P. 791.

This being an equity case we maintain by authority of the case of Wayne County v. Kennicott, cited above, that there can be no new trial in a suit in equity; also the court in the case at bar should have proceeded with the case from where the error was committed, that is, the error of granting the non-suit. Wortman v. Granger, 2 Mont., 405; Montgomery Co. v. Cary, 1 Ohio St., 463; Erwin v. Collier, 3 Mont., 173; Nelson v. Hubbard, 13 Ark. 253; Howard v. Marshall, 10 Md. 451; 52 N.W. 138; 45 N.W. 530.

Appellants maintain that the court erred in overruling the demurrer of the defendant W. W. Corey's amended answer, for the reason that the claim sued upon by the plaintiffs against said Corey was the misappropriation of a trust fund, he being trustee for the stockholders, and appropriating the money illegally and unlawfully, made it such a debt in favor of the plaintiffs and against the defendant, Corey, that he could not have been discharged in bankruptcy. Section 17 of the Bankruptcy Act.

The proposition that a judgment had been obtained against Corey, and that therefore plaintiffs could not recover in this suit, was also raised at the original trial, and as the lower court was reversed on the proposition, no argument is needed to show that a repetition of the error is still error. Burton v. Perry, 34 N.E. 60; Shinn v. Shinn, 15 Ill.App. 141; Cober v. Ellis, 120 Ill. 136; Washburn Mfg. Co. v. Chicago G. W. F. Co., 119 Ill. 30; Green v. City, 130 Ill. 515.

Independent of the provisions of the Revised Statutes, the court of chancery has jurisdiction so far as the rights of the individual corporators were concerned, to call the directors to account. Robinson v. Smith, 3 Paige Ch., 127; Brinkerhoff v. Bostwick, 88 N.Y. 60; Jones v. Johnson, 10 Bush. (Ky.), 661; Cumberland Coal Co. v. Hoffman Coal Co., 30 Barb., 159; Carpenter v. Danforth, 52 Barb., 585; 49 How. Pr., 83; 57 How. Pr., 65; Heath v. Erie R. Co., 8 Blatchf., 441; Silver Horn Mining Co. v. Ryan, 44 N.W. 56.

Appellants claim that the court erred in holding that the action originally instituted against Schramm did not survive, he having died pending appeal. Section 3916 of the Revised Statutes. Section 2920 Revised Statutes.

At common law, actions founded in tort did not survive, and did not constitute a legal claim against the representatives. The common law doctrine has now been greatly extended, and all rights of action founded in tort to property now survive, and pass as assets to the personal representatives of the deceased. The test of assignability was the element of survival, and the right of survival being extended, the right of assignability is also enlarged. People v. Tioga County, 19 Wend., 73; Tyson v. McGuineas, 25 Wis. 656; Butler v. R. R. Co., 22 Barb., 110; Jordan v. Gillen, 44 N.H. 426; Byxbie v. Wood, 24 N.Y. 607.

And a right of action founded on want of care, skill, or diligence under a contract relating to personal property is assignable, and therefore survives, for instance, a right of action against a common carrier or other bailee for damages occasioned by breach of duty. Merrick v. Brainard, 38 Barb., 574; Merrill v. Grinnell, 30 N.Y. 594; Woodbury v. Deloss, 65 Barb., 501; Prive v. Price, 75 N.Y. 244; Lavell v. Frost, 40 P. 446.

Messrs. Richards & Allison, and Wm. H. Smith, Esq., Attorneys for Executors of estate of S. S. Schramm, deceased, respondents.

L. R. Rogers, Esq., T. D. Johnson Esq., and R. H. Whipple, Esq., of counsel for respondents.

This is a personal action, arising ex delicto, and at common law did not survive. It was a well-established, ancient, common-law rule that no personal action survived, and that rule is expressed in the familiar maxim, actio personalis moritur cum persona. This rule was later relaxed as to actions ex contractu, and even extended at times to actions, arising from torts to property where property was acquired by the tort feasor and his estate thereby enriched. Wilbur v. Gilmore, 21 Pick. (Mass.), 250; Petts v. Ison, 56 Am. Dec. 419; Mason v. U. P. Ry. Co., 7 Utah 77.

We now pass to a consideration of the cases which we contend conclusively show that in States having statutes similar to ours, cases like the one at bar do not survive. Witters v. Foster, 26 F. 737; Dana v. Hull, 21 Vt. 383; Jenkins v. Bennett (W. Va.), 18 S.E. R., 929; U.S. v. Daniel, 47 U.S. 11, 12 L.Ed. 323; Mason v. U. P. Ry. Co., 7 Utah 77.

In addition to the cases hereinbefore cited, see 5 Ency. Pl. & Pr., p. 789, note 4. Upon the general questions of survivorship, see also, Stokes v. Stickney, 96 N.Y. 323; Cunningham v. Jacques, 19 N.J.L. 42; Bracket v. Griswold, 9 N.E. 438; People v. Gibbs, 9 Wendell, 29; Slauson v. Schwabacher (Wash.), 31 P. 329.

The mandate or remittitur in this case is now embodied in either the judgment roll or bill of exceptions. How then is the question of its proper construction before this court for review? We insist that it is not. This court can not consider any matter not found in the record or bill of exceptions. Whipple v. Preece, 18 Utah 454; U.S. v. Duggins, 11 Utah 430; People v. March, 11 Utah 432; People v. Pettit, 5 Utah 241; Revised Statutes, Sec. 3286; Evans v. Jones, 10 Utah 182; Flint v. Nelson, 10 Utah 261; Perego v. Dodge, 9 Utah 3; People v. Smith, 3 Utah 425; Lowell v. Parkinson, 4 Utah 64; Bowring v. Bowring, 4 Utah 185; Reever v. White, 8 Utah 188.

We have a judgment roll and bill of exceptions in the record on this appeal, and this court can not on this appeal, consider maters dehors that record. In other words, there must be a full, complete, and distinct record on each appeal. People v. Center, 61 Cal. 191; Sweet v. Mitchell, 7 Wis., 125; Noble v. Strachan, 32 id., 317; White v. Appleton, 14 id., 190; Skidmore v. Davies, 10 Paige, 316.

The record of other cases or of other appeals in the same case before the supreme court can not be referred to or considered unless properly made a portion of the record of the pending case. Branch v. R. Co., 88 N. Car., 573; Armemdioz v. Serna, 40 Tex. 291; R. Co. v Booton, 15 S.W. 909; R. Co. v. Wynant, 134 Ind. 681; S.C., 34 N.E. 564; Kinion v. R. Co., 39...