97 P. 1031 | Idaho | 1908
This case was here on a former appeal. (13 Ida. 514, 91 Pac. 92.) In the opinion rendered in that case, this court said:
“Under the provisions of the contract, Kerns had a right to insist on the organization of such corporation under the laws of the state of Idaho. That being the conclusion we have reached after a careful consideration of this case on the petition and arguments on the rehearing, the decision of that question ends this case, for until a corporation is organized in compliance with the provisions of said contract, neither Cunningham nor the respondent corporation can enforce the pro*373 visions of said contract against Kerns. Until a corporation lias been organized under the provisions of the contract, and has fully complied with the terms and provisions of said contract, the contract cannot be enforced against Kerns. As that is the controlling question in this case, it is not worth while for us to consider the other questions raised.”
Upon the remittitur going down, the cause was called for trial by consent of the parties. No amendment was made or offered to the complaint. The plaintiff, a Washington corporation, still remained the plaintiff. The issues presented to the trial court after reversal were the same as at the former trial. The plaintiff, however, offered to produce further proof, and the court announced that no further proof could be introduced by plaintiff under the supreme court decision, for the reason that under no circumstances could the action be maintained, and made an order refusing to admit such proof.
Afterward the court entered judgment for the defendant, dismissing said action and for costs. This appeal is from the judgment of dismissal.
In -this court the respondent moves to dismiss the appeal, and, among other grounds, assigns “that the ease was once decided by this court and that that decision was final.” Upon the former appeal this court held that the plaintiff, a Washington corporation, could not maintain the action. The evidence offered by the appellant and rejected by the court is not made a part of the judgment-roll by a bill of exceptions, and for that reason cannot be reviewed upon an appeal from the judgment. This, then, leaves the case here upon the judgment-roll, consisting of the same pleadings as were presented to this court upon the former appeal. The plaintiff is the same Washington corporation, and cannot maintain this action, as held in the former opinion. The trial court was justified in holding that the plaintiff could not maintain the action and in dismissing the same. Every question presented upon this appeal was presented to this court upon the former appeal and finally decided and determined by the decision rendered in that case. The motion to dismiss the appeal will, be sustained. Costs awarded to the respondent.
