128 Wash. 611 | Wash. | 1924
This case was before us on a former appeal, decided in 122 Wash. 609, 211 Pac. 286. That appeal was from an order granting a new trial after a verdict of the jury rendered in favor of the defendants, the present appellants.
When the case was retried, it was retried upon substantially the same evidence and the same pleadings as in the former trial.
On this appeal appellants, appearing separately, urge as errors: (1) overruling the demurrer of appellant to the complaint; (2) refusing to instruct the jury to return a verdict in favor of each appellant; (3) denying the motion of each appellant for a new trial; and (4) denying the motion of each appellant for judgment n. o. v.
An additional error is claimed by appellant Northwest Trust & State Bank, in giving to the jury the following instruction:
“And likewise it is the rule that an agent having authority to collect checks has no implied authority to endorse thereon the name of his principal for the purpose of cashing the same;”
and the following instruction:
“Should you find from the testimony in this case that Harry Flitton, the financial secretary of the plaintiff Union, performed part or all of the duties of the treasurer of the Union, this by itself would not confer power upon him to endorse negotiable paper and cash checks payable to the order of the treasurer.”
and this (to which no exception is shown):
*613 “To entitle defendants to any credit on their first affirmative defense they must prove hy a preponderance of the evidence that it was from the proceeds of the checks cashed by the Northwest Trust & State Bank, marked plaintiffs ’ exhibits B-l to B-12 inclusive, and from no others that Flitton paid and disbursed money for the benefit of plaintiffs, if he did. ’ ’
The insufficiency of the complaint was not presented to this court on the former appeal, nor urged as a ground of denying any relief to respondents in the case.
Respondents therefore urge, and we think correctly, that appellants, having demurred to the complaint before the first trial, which demurrer was overruled when the new trial was granted, and an appeal taken therefrom by these same appellants, they should have urged any and all grounds why respondents ought not to recover. In other words, that what should have been raised on the former appeal is presumed to have been raised.
“The general rule, supported by the great weight of authority, is to the effect that questions which might have been, but were not, raised or presented on a prior appeal, or, error, will not be considered on a subsequent appeal, or error; or, in other words, that, where the prior judgment was on the merits, nothing is before the court on a subsequent appeal but the proceedings subsequent to the first mandate, all matters occurring prior thereto, and which could have been adjudicated on the former hearing, being regarded as controlled by the ‘law of the case’ rule.”
Note to State ex rel. Garcia v. Board of Commissioners of Rio Arriba County, 22 N. M. 562, 166 Pac. 906, 1 A. L. R. 720.
In Perrault v. Emporium Dept. Store Co., 83 Wash. 578, 145 Pac. 438, we said:
“The law of the case as applied to the same facts, shown by the same evidence, was thus settled for all*614 time. This court has often said that it will not entertain appeals piecemeal. In an unbroken line of decisions we have consistently held that questions determined on appeal, or which might have been deter- • mined had they been presented, will not be considered upon a second appeal of the same action. As to such questions the first appeal conclusively settles the law of the case.”
See Corum v. Bloomquist, 121 Wash. 499, 209 Pac. 702.
Where a party demurs to a pleading and receives an adverse ruling thereon, he must not only present such' ruling for review at the first appeal, but he must present all reasons on which he bases his alleged error, or he will be deemed to have waived the same. City of New Albany v. Lyons, 69 Ind. App. 478, 118 N. E. 587, 1 A. L. R. 728.
Appellants insist that they could not raise the question of error in overruling the demurrer on appealing from the order granting a new trial.
We do not consider that contention correct. If the complaint failed to state a cause of action against either of the defendants under any theory, then no judgment in favor of plaintiffs in the case was justifiable when the new trial was granted, or when the verdict in favor of the defendants was entered. This is the same complaint upon which the former trial was had, and if it does not state facts sufficient to constitute a cause of action, that question should have been raised on the former appeal. Besides, the complaint would be deemed amended to conform to the facts proven at the trial. Section 1752, Rem. Comp. Stat. [P. C. § 7336]; Gregg v. Gregg, 117 Wash. 164, 200 Pac. 1084, and the former decision in this case decided as the law of the case that the facts were sufficient to go to the jury.
We are therefore convinced that appellants cannot he heard to urge now in this court on a second appeal that the complaint did not and could not consistently state a cause of action against either of the appellants.
All the other errors claimed are settled by the law of the case as stated, in the former opinion.
The claim of error as to instructions given by the trial court, which were excepted to, raised by the appellant bank, is not urged by that appellant. We can, therefore, discern no error in them, of our own volition.
We can find no error on which appellants, or either of them, are entitled to rely, and the judgment is therefore affirmed.
