Davisson v. Citizens' National Bank

SYLLABUS. 1. A decision, in a prior appeal is tbe law of tbe case and upon a subsequent appeal notbin'g is before tbe court for revision but tbe proceedings subsequent to tbe mandate.

Appeal from the District Court for Chaves County, before William H. Pore, Chief Justice. Duty of holder of escrow. 2 Page on Contracts, -sec. 585; Davis v. Clark, 5.8 Kas. 100; Roberts v. Mullenix, 10 •Kas. 22; Grove v. Jennings, 46 Kas.-366; 16 Cyc. 576, '584; 11 -A. & E. Enc. 352; Humphrey v. Richmond etc. R. R. Co., 13 S. E.-985; Burlington R. R. Co. v. Palmer, 42 Iowa 222; Bodwell v. Webster/113 Pick. .411; Hayton v. Meeks, 14 S. W. 864, Ark.; Equity Gaslight Co. v. McKeige, 34 N. E. 898, N. Y.; Eiggs v. Trees, 5 L. E. A. 696, Inch; Iioyt v. MeLagan, 87 la. 146. A court has the power to overrule its decisions which 'were clearly erroneous. Borden v. N. P. E. E. Co., 154 U. S. 322; Kilbourn v. Thompson, 103 H. S. 168; Thaw v. Eitchie, 4 Mackey 384-, D. C.; Hastings v. Foxworthy, 45 Neb. 676; Bobbins v. Chicago City, 4 Wall. 657.' Statute of frauds. 29 A. & E. Enc. 807; Emerson v. Slater, 22 How. 42; Swain v. Seeman, 9 Wall. 254; Kirchner v. Laughlin, 4 N. M. 394; Hasbrouck v. Tappen, 15 Johns. 200; Hersley v. Savanstrom, 41 N. W. 1027; Athe v. Bartholomew, 33 N. W. 110; Abel v. Munson, 18 Mich. 305; Cook v. Bell, 18 Mich. 389; 29 A. & E. Ene. 824; 20 Cyc. 296; Warvelle on Vendors, sec. 419. Matters of law determined upon a former appeal become the settled law of the case, are binding upon the court and the litigants, and cannot be reviewed on second appeal. Dye v. Crary, 13 N. M. 439; 3 Am. Dig., col. 234-0; 2 Am. Dig. 732. One wrongfully withholding property may be proceeded against by the owner, even if the latter be a stranger to the arrangement whereby the same was deposited or bailed. Wells v. Am. Exp. Co., 42 Am. Eep. 695. Wis.; Doty v. Hawkins, 25 Am. Dec. 459, N. H.; Clark v. Eureka County Bank, 123 Fed. 922. STATEMENT OF FACTS. This cause of action was before this court upon practically the same record and upon the former hearing the case was reversed with instructions to the lower court to reinstate the cause and proceed in accordance with the views therein expressed. 15 N. M. 680. Upon the second trial of the cause in the court below no new pleadings or •amendments to the pleadings were made and no additional evidence was introduced. The court below, in accordance with the mandate of this court, made findings of fact and conclusions of law and entered judgment for the appellees, from which judgment this appeal is prosecuted.