100 F. 393 | 9th Cir. | 1900
The Columbia National Bank of Tacoma was an association organized under the national banking acts of the congress of the United States on September 2, 1891, with
This court having determined that the plaintiff could not recover upon his alleged cause of action, the only issue to be determined upon the second trial was the counterclaim of the defendant Philip Tillinghast, as receiver of the bank, against the plaintiff, to recover the assessment of $61 per share levied by the comptroller of the currency upon the capital stock of the bank, which assessment upon the 23 shares of the increased capital stock of the bank held by the plaintiff amounted to $1,403; and with respect to that issue the liability of the plaintiff was practically determined, when it was held that, as the holder of the 23 shares of the increased capital stock of the bank, he was.legally bound to all the consequences of such relation to the bank. It appears from the record brought here upon a second writ of error that upon the second trial in the court below the court made certain additional findings, and thereupon entered a judgment in favor of the defendant Tillinghast for the sum of $1,403, with interest and costs. The additional findings are as follows:
“(22) That it is not proven .by any evidence in the cause that plaintiff ever subscribed for or agreed to take any share or portion of the increase of capital mentioned or described in the instrument signed by the comptroller of the currency of the United States on October 23, 1895, purporting to approve an increase of the capital of said association. (23) That it is not proven by any evidence in the cause that any debt was incurred by the defendant association subsequent to the time when the instrument purporting to be a certificate of approval of an increase of capital of said association was signed by the comptroller of the currency of the United States on October 23, 1895. (24) That it is not proven by any evidence in the cause that any person who dealt with the defendant association subsequent to January 12, 1892, relied, or could liave rightfully relied, upon any act or conduct of plaintiff having reference to the proposed increase of capital for which plaintiff subscribed. (25) That it is not*397 proven by any evidence in the cause [that any person] while dealing in any manner with the defendant association subsequent to January 12, 1892, be-, lieved, or had any right to believe, 1hat the plaintiff was the owner of any valid increased stock of the association. (26) That it is proven and established by the evidence in the cause that each and every person who in any manner dealt with the defendant association subsequent to January 12, 1892, acted with notice that the increase of capital proposed and voted by the shareholders of the association on January 12, 1892, had not been certified or approved by the comptroller of the currency of the United States. (27) That it is proven and established by the evidence in the cause that all persons who dealt with the defendant association subsequent to January 12, 1892, and until after said association ceased its business on October 24, 1895, bad due notice that the certificate ol' the comptroller of the currency of the United States approving of the increase of capital as voted and proposed by the shareholder's of said association on January 12, 1892, had not been obtained by said association.”
It is contended by the plaintiff that under these additional findings of the court there was no room for the law of estoppel declared by the court upon the former hearing, and that the judgment of the lower court entered in accordance with the opinion of this court should be reversed, and the circuit court be directed to enter a judgment in favor of the plaintiff. In the appellate courts of the United States, and in nearly all, if not all, the appellate courts of the states, a second writ of error or a second appeal in the same case only brings up for review the proceedings of the trial court subsequent to the mandate, and does not authorize a reconsideration of any question, either of law or of fact, that was considered and determined on the first appeal or writ .of error. Bridge Co. v. Stewart, 3 How. 413, 425, 11 L. Ed. 658; Sizer v. Many, 16 How. 98, 14 L. Ed. 861; Tyler v. Magwire, 17 Wall. 253, 283, 21 L. Ed. 576; Phelan v. City and County of San Francisco, 20 Cal. 39, 44; Leese v. Clark, Id. 387, 416, 417. Mr. Justice Field, in the last case, speaking of the reasons for this doctrine, said:
“The supreme court has no appellate Jurisdiction over Its own judgments. It cannot review or modify them after the case has once passed, by the issuance of the remittitur, from its control. It construes, for example, a written contract, and determines the rights and obligations of the parties thereunder, and upon such construction it affirms the judgment of the court below. The decision is no longer open for consideration. Whether right or wrong, it has become the law of the case. This will not be controverted. So, on the other hand, if, upon the construction of the contract supposed, this court reverses the judgment of the court below, and orders a new trial, the decision is equally conclusive as to the principles which shall govern on the retrial. It is just as final to that extent as a decision directing a particular judgment to he entered is as to the character of such judgment. The court cannot recall the case, and reverse its decision, after the remittitur is issued. It has determined the principles of law which shall govern, and, having thus determined, its jurisdiction in that respect is gone. And, if the new trial is had. In accordance with its decision, no error cap he alleged in the action of the court below. Young v. Frost, 1 Md. 394; McClellan v. Crook, 7 Gill, 338.”
In the present ease this court, upon the former hearing, construed the contract which plaintiff entered into with the bank, and determined that he was estopped to deny his responsibility as a subscriber to the increased capital stock of the hank. This contract was established by the facts contained in the original finding, and those facts have not been contradicted, changed, or modified in any