| Mont. | Dec 21, 1896
Rehearing
Per Curiam. —As stated in the opinion of the court, this is the second appeal of the case. In the first trial of the case the district court sustained a demurrer to the complaint. Thereupon plaintiffs dismissed the suit without prejudice and commenced another suit against the same defendants. On the trial, under the complaint in the new suit, the court non-suited plaintiffs. From this action plaintiffs appealed and this court reversed the judgment of the lower court and held that the defendants were all liable on the bond without its being reformed. The case went back for new trial and the district court followed the opinion of this court and judgment was accordingly rendered against the defendants for the amount of the bond.
The principal ground for rehearing is the contention of appellants that the plaintiff having failed to appeal from the order of the district court sustaining the defendants’ demurrer to the complaint in the first suit on the ground that defendants were not liable on the bond, he is now ■ estopped from litigating the matter and that this court has no jurisdiction to determine that matter in this appeal, and had no right so to do on the former appeal.
To uphold this contention would be to grant a rehearing of the former appeal and reverse the conclusion then reached by this court. This cannot be done, especially in view of the fact that a majority of the justices now composing this court were trial judges who had had to do with the case below, and who now deem themselves to be disqualified from passing upon the merits of this appeal, and only participate at all by consent of parties. We must under the circumstances overrule the petition for rehearing, believing the law of the case to have been settled.
Lead Opinion
We are clearly of the opinion that the action of the trial court in holding the decision of this court in Watson v. O'Neill, et al., supra, to be the law of the case was correct. We do not see how the court could have done otherwise.
Counsel for the appellants contends that the question of the validity of the bond sued on was not before this court in Watson v. O'Neill, et al. We think this contention cannot be supported. We held that the bond which was in suit for reformation, and after reformation for judgment thereon, was valid without reformation when properly construed. We necessarily passed upon, and had to pass upon the validity of the bond.
The plaintiff also appeals from the refusal of the trial court to allow him interest on the demand from the date of the judgment rendered at the former trial of the case.
We think the view of the court was correct. The statute, section 1237, Fifth Division Compiled Statutes, 1887, allows interest in such cases as the one at bar after ‘ ‘ascertaining the balance due.” The amount, or “balance due,” was only, ascertained when the verdict was rendered in favor of plaintiff at the second trial of the case. x
The judgment and order appealed from are affirmed.