190 Iowa 534 | Iowa | 1920
Lead Opinion
“It is now ordered that, within sixty days from the time that this opinion becomes final, the defendants shall transfer the stock as the decree below directs. If that be not done, the district court shall take evidence on the value of such stock, and thereupon determine what money judgment shall be rendered against defendants, and to enter such judgment accordingly.” Bryan & Co. v. Scurlock, 184 Iowa 378, at 384.
The decision here became final on September 30,1918, when petition for rehearing was denied.
If the defendants have complied with this mandate at all, they did so within the time allowed for performance. While the order in this court specifically provided that, in event of noncompliance,, there should be a hearing on the value of the
II. We shall not follow the arguments in all their ramifications. The trial court did enter a judgment for the money value of the shares. We are satisfied that it was its duty to do this. It is no answer that the title was lost because a good-faith incumbrance had been foreclosed, and that the order of the trial court originally made compelled the plaintiffs to be satisfied with the delivery of the shares, subject to good-faith incumbrances. The opportunity to save themselves from a money judgment by surrendering shares of stock was a privilege. With it went every condition attached to that privilege, no matter how onerous. These appellants cannot avail themselves of the part of the order which relieved them from a money judgment, and be relieved as well from the conditions that were attached. Right or wrong, it was ordered below that defendants could gain nothing by a transfer of shares unless, at the time of the transfer, the title to the patent was in the company. At the time when the attempt to transfer was made, the title was not in the company. The privilege was to transfer shares in a concern which owned this patent, and that such transfer should suffice, even though the assets of the company were mortgaged. The"substitution offered is a transfer of shares in a company that no longer owned the patent. The argument for the substitution is that loss of title
While the first appeal was pending here, and for some time earlier, it was apparent that an $80,000 mortgage might be foreclosed. This court could have been appealed to, to modify the order below, instead of affirming it, on the argument that just what has happened might happen. In other words, appellant might have said to us:
' “Here is an order that we must show title. It is possible,— nay, it is probable, — that, without fault on our part, we may be unable to do this. This order should be modified so that a transfer of shares shall be sufficient if it be shown that title to the patent has been lost through the foreclosure of a good-faith incumbrance. ’ ’
We were either asked to do this or we were not. This is quite immaterial. For we failed to make any such modifications. Right or wrong, that is the law of the case. For the purposes of any retrial here, whatever was done or not done became a finality when the petition for rehearing was denied. In the same cause we cannot change our position in a second appeal, even if we were utterly in error on the first appeal. See •cases collated in 1 McClain’s Digest 269, 270. It follows that, right or wrong, mild or harsh, the defendants have lost their opportunity to avoid some sort of money judgment. Right or wrong, mild or,harsh, that privilege depended upon title’s re
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We have, too, the argument that the defendant Wolf, especially, did all in his power, all that a single stockholder might do, to avoid this foreclosure, and that his appeals to these plaintiffs to aid him were disregarded. The conditions in the order were that title must be in the company when the transfer of the shares was made. The showing of this excuse for losing title is also no substitute for showing that title existed. Aside from that, it is confessed that, at the very time when plaintiffs were being appealed to, to co-operate with Wolf in saving the company from this foreclosure, these defendants, including Wolf, were appealing to this court, asserting that they were under no liability to the plaintiffs, and that they were under no duty to transfer to them a single share of stock. Surely, these plaintiffs have lost no rights by refusing, under these conditions, to join the defendants or some of them in financing the affairs of the corporation in which they were being denied all interest, and at a time when this court, for all that could be knoum, might hold that plaintiffs had no interest.
We repeat, the trial court did not err in proceeding to ascertain what damages, if any, were due.
Concurrence Opinion
(concurring specially). I concur in the result, but I do not agree with the statement in the opinion as to the law of the case, that:
‘ ‘ In the same cause we cannot change our position in a second appeal, even if we were utterly in error on the first appeal.”
The modern rule ought to be, and I think it is, under late cases, that if, in the exceptional case, the court is clearly satisfied that a wrong legal proposition has been announced, it has a right and it is its duty to make the correction, even in the same case, rather than to let the wrong rule stand and be followed until the question is raised again later, and then make the correction by overruling the wrong conclusion in the former case.