Carter, J.
The defendant Martell State Bank moved for a judgment in its favor on the mandate' issued by this court on a former appeal. The plaintiff brings the case to this court for review, alleging that the judgment against him was erroneously entered.
The record shows that plaintiff commenced an action against the Martell State Bank, William H. H. Moore and J. Carl Sittler to recover damages for the breach of a bailment contract. It was alleged in the petition that plaintiff rented a safety deposit box from the Martell State Bank several years prior to November 2, 1938, that he placed $14,000 in currency therein for safe-keeping, and when he called to get the money on November 2, 1938, it was not in the safety deposit box. A more detailed statement of the facts will be found in the former opinions. Bohmont v. Moore, 138 Neb. 784, 295 N. W. 419, and Bohmont v. Moore, 138 Neb. 907, 297 N. W. 559. The mandate of the supreme court issued on the former appeal stated “that the judgment rendered by you be reversed * * * and the cause remanded for further proceedings.” It is the effect of this remand, when considered ig connection with the opinions of the supreme court accompanying it, that gives rise to the question herein to be determined.
In the original petition filed in the district court, it was alleged that the bailment agreement was made with the Martell State Bank and that the only persons who handled any transactions pertaining to the safety deposit box were the defendants Moore and Sittler. The trial court directed a verdict in favor of Moore and Sittler. The judgment en[93]*93tered in their behalf was never appealed from and consequently has become final. As to the Martell State Bank, the case was submitted to the jury, who returned a verdict against it for the $14,000. The Martell State Bank appealed to this court, and in reversing the case this court, among other things, said: “If the liability of a banking corporation, sued for tort, is necessarily dependent upon the culpability of its president and cashier, who are the immediate actors and who, in an action against them by the same plaintiff for the same act, have been adjudged not culpable, defendant banking corporation^ under such circumstances, is entitled to a directed verdict.”
On rehearing, the attention of the court was called to the fact that the action - sounded in contract and not in tort. In the second opinion, Bohmont v. Moore, 138 Neb. 907, 297 N. W. 559; this court said: “The plaintiff’s petition sounds in contract and further contains a direct allegation of negligence, thus presenting two aspects oí recovery. Suffice it to say that the rules of law set forth in the opinion are- applicable to the plaintiff’s cause of action, based on a breach of the bailment agreement.” The petition contains the following allegation: “That by reason of the failure of the defendants to return said money to the plaintiff and by reason of their negligence in not properly protecting and caring for said money owned by the plaintiff as aforesaid, the plaintiff has been damaged in the sum of $14,000.” There can be no doubt that this was a general allegation of negligence. The fact that defendants Moore and Sittler were joined as parties defendant is additional proof that plaintiff considered that negligence was an essential element to a recovery, for if the action was one in contract they would have no personal liability. But, in any event, this court in its second opinion concluded that the rules as to negligence were applicable. We do not have the transcript of the evidence in that case before us and for that reason we cannot determine upon what theory the case was tried in the district court. For aught we can say, the parties tried it on the theory that the loss was due to the negligence of the [94]*94bank acting, through its officers, Moore and Sittler. If this be the basis of the holding, it is unquestionably correct, as this court has many times held that, where a certain theory on any issue is relied upon by the parties to the trial as the proper one, it will be adhered to on appeal whether it is correct or not. Behle v. Loup River Public Power District, 138 Neb. 566, 293 N. W. 413; U. S. Tire Dealers Mutual Corporation v. Laune, 139 Neb. 26, 296 N. W. 333. We realize fully that the record before us does not establish the truth of this supposition. But it does indicate a reason why this court has held that all matters decided expressly or by necessary implication in its opinion in reversing the first judgment become the law of the case as to any future trial.
In Kuhns v. Live Stock Nat. Bank, 138 Neb. 797, 295 N. W. 818, this court said: “So, too, all matters decided expressly or by necessary implication by this court in its opinion in reversing the first judgment became the law of the case. This applies not merely to all questions actually and formally presented,- but to all existing in the record and necessarily involved in the decision. Such points will not be reconsidered in this appeal.”
And in Anheuser-Busch Brewing Ass’n v. Hier, 61 Neb. 582, 85 N. W. 832, this court said: “The decision of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case, and, for the purposes of the litigation, settles conclusively the points adjudicated.”
And, also, in Blum v. Truelsen, 139 Neb. 282, 297 N. W. 136, this court held:
“The plaintiff in this appeal raises the same propositions that were considered in the motion for rehearing, in attacking that part of the judgment releasing Henry T. Truelsen from liability on the note. This court determined the issue so raised when the motion for rehearing was denied.
“Tt is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted* or judicially determined, are conclusively settled by a judgment rendered therein, and [95]*95that such facts or questions become res judicata and may not again be litigated in a subsequent action.’ 30 Am. Jur. 920, sec. 178. In the instant appeal the subject-matter has been fully determined in the opinion in Blum v. Truelsen, supra, and by the motion for rehearing therein, and cannot be again litigated.”
An examination of the record in this case reveals that every point raised by the plaintiff was determined against him on the former appeal. The holding that the final judgment in favor of Moore and Sittler was a bar to a recovery against the bank was attacked in the motion for a rehearing and this court in its opinion overruling the motion for a rehearing adhered to its former decision. The issue consequently has been finally decided and becomes the law of the case.
Plaintiff argues that the court determined that instruction No. 4 was erroneously given and that, unless a new trial had been intended, there would have been no occasion to consider the correctness of any of the instructions. We quite agree that under our present view of the case there was no necessity to pass upon the correctness of instruction No. 4 and that it is some evidence that a new trial before a jury, correctly instructed, was intended. But another well-settled rule does away with any such conclusion in the present case. Our former decision holds that the final judgments in favor of Moore and Sittler are a bar. to a recovery against the bank. This being true, another trial could accomplish nothing.
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Carter, J.
The defendant Martell State Bank moved for a judgment in its favor on the mandate' issued by this court on a former appeal. The plaintiff brings the case to this court for review, alleging that the judgment against him was erroneously entered.
The record shows that plaintiff commenced an action against the Martell State Bank, William H. H. Moore and J. Carl Sittler to recover damages for the breach of a bailment contract. It was alleged in the petition that plaintiff rented a safety deposit box from the Martell State Bank several years prior to November 2, 1938, that he placed $14,000 in currency therein for safe-keeping, and when he called to get the money on November 2, 1938, it was not in the safety deposit box. A more detailed statement of the facts will be found in the former opinions. Bohmont v. Moore, 138 Neb. 784, 295 N. W. 419, and Bohmont v. Moore, 138 Neb. 907, 297 N. W. 559. The mandate of the supreme court issued on the former appeal stated “that the judgment rendered by you be reversed * * * and the cause remanded for further proceedings.” It is the effect of this remand, when considered ig connection with the opinions of the supreme court accompanying it, that gives rise to the question herein to be determined.
In the original petition filed in the district court, it was alleged that the bailment agreement was made with the Martell State Bank and that the only persons who handled any transactions pertaining to the safety deposit box were the defendants Moore and Sittler. The trial court directed a verdict in favor of Moore and Sittler. The judgment en[93]*93tered in their behalf was never appealed from and consequently has become final. As to the Martell State Bank, the case was submitted to the jury, who returned a verdict against it for the $14,000. The Martell State Bank appealed to this court, and in reversing the case this court, among other things, said: “If the liability of a banking corporation, sued for tort, is necessarily dependent upon the culpability of its president and cashier, who are the immediate actors and who, in an action against them by the same plaintiff for the same act, have been adjudged not culpable, defendant banking corporation^ under such circumstances, is entitled to a directed verdict.”
On rehearing, the attention of the court was called to the fact that the action - sounded in contract and not in tort. In the second opinion, Bohmont v. Moore, 138 Neb. 907, 297 N. W. 559; this court said: “The plaintiff’s petition sounds in contract and further contains a direct allegation of negligence, thus presenting two aspects oí recovery. Suffice it to say that the rules of law set forth in the opinion are- applicable to the plaintiff’s cause of action, based on a breach of the bailment agreement.” The petition contains the following allegation: “That by reason of the failure of the defendants to return said money to the plaintiff and by reason of their negligence in not properly protecting and caring for said money owned by the plaintiff as aforesaid, the plaintiff has been damaged in the sum of $14,000.” There can be no doubt that this was a general allegation of negligence. The fact that defendants Moore and Sittler were joined as parties defendant is additional proof that plaintiff considered that negligence was an essential element to a recovery, for if the action was one in contract they would have no personal liability. But, in any event, this court in its second opinion concluded that the rules as to negligence were applicable. We do not have the transcript of the evidence in that case before us and for that reason we cannot determine upon what theory the case was tried in the district court. For aught we can say, the parties tried it on the theory that the loss was due to the negligence of the [94]*94bank acting, through its officers, Moore and Sittler. If this be the basis of the holding, it is unquestionably correct, as this court has many times held that, where a certain theory on any issue is relied upon by the parties to the trial as the proper one, it will be adhered to on appeal whether it is correct or not. Behle v. Loup River Public Power District, 138 Neb. 566, 293 N. W. 413; U. S. Tire Dealers Mutual Corporation v. Laune, 139 Neb. 26, 296 N. W. 333. We realize fully that the record before us does not establish the truth of this supposition. But it does indicate a reason why this court has held that all matters decided expressly or by necessary implication in its opinion in reversing the first judgment become the law of the case as to any future trial.
In Kuhns v. Live Stock Nat. Bank, 138 Neb. 797, 295 N. W. 818, this court said: “So, too, all matters decided expressly or by necessary implication by this court in its opinion in reversing the first judgment became the law of the case. This applies not merely to all questions actually and formally presented,- but to all existing in the record and necessarily involved in the decision. Such points will not be reconsidered in this appeal.”
And in Anheuser-Busch Brewing Ass’n v. Hier, 61 Neb. 582, 85 N. W. 832, this court said: “The decision of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case, and, for the purposes of the litigation, settles conclusively the points adjudicated.”
And, also, in Blum v. Truelsen, 139 Neb. 282, 297 N. W. 136, this court held:
“The plaintiff in this appeal raises the same propositions that were considered in the motion for rehearing, in attacking that part of the judgment releasing Henry T. Truelsen from liability on the note. This court determined the issue so raised when the motion for rehearing was denied.
“Tt is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted* or judicially determined, are conclusively settled by a judgment rendered therein, and [95]*95that such facts or questions become res judicata and may not again be litigated in a subsequent action.’ 30 Am. Jur. 920, sec. 178. In the instant appeal the subject-matter has been fully determined in the opinion in Blum v. Truelsen, supra, and by the motion for rehearing therein, and cannot be again litigated.”
An examination of the record in this case reveals that every point raised by the plaintiff was determined against him on the former appeal. The holding that the final judgment in favor of Moore and Sittler was a bar to a recovery against the bank was attacked in the motion for a rehearing and this court in its opinion overruling the motion for a rehearing adhered to its former decision. The issue consequently has been finally decided and becomes the law of the case.
Plaintiff argues that the court determined that instruction No. 4 was erroneously given and that, unless a new trial had been intended, there would have been no occasion to consider the correctness of any of the instructions. We quite agree that under our present view of the case there was no necessity to pass upon the correctness of instruction No. 4 and that it is some evidence that a new trial before a jury, correctly instructed, was intended. But another well-settled rule does away with any such conclusion in the present case. Our former decision holds that the final judgments in favor of Moore and Sittler are a bar. to a recovery against the bank. This being true, another trial could accomplish nothing. The judgments would be a bar in any event and require a judgment in favor of the bank. In other words, the judgment entered in favor of the bank was the only one that could be rendered under the present state of the record.
In Bliss v. Live Stock Nat. Bank, 124 Neb. 880, 248 N. W. 645, this court said: “Without question it is a general rule that reversal of a judgment and remand for further proceedings in accord with the opinion, without specific direction to the trial court as to what it shall do, except such as conveyed by the words, .‘for further proceedings,’ is a general remand, and the parties stand in the same position as if [96]*96the case had never been tried. This court and other courts have frequently so held. However, there are some exceptions to the rule. If the undisputed and admitted facts are such that but one judgment could be rendered, the trial court should enter such a judgment, notwithstanding the mandate did not specifically direct the trial court’s action.”
In Kuhns v. Live Stock Nat. Bank, supra, this court said: “In this connection the decision of this court in the instant case on the first appeal necessarily included the determination that the cause of action alleged in the trustee’s petition, both as to fact and law, was clearly sustained by the record and that such trustee was therefore entitled to a judgment as prayed. This became the law of the case, and was properly, as such, interpreted by the trial court on the entry of its judgment ‘upon the mandate’ here appealed from. As an additional reason, it may be said that a case will not. be reversed for errors, where the complaining party would not be entitled to succeed in any event.” See, also, Regouby v. Dawson County Irrigation Co., 128 Neb. 531, 259 N. W. 365.
Plaintiff further contends that, if a new trial was not intended, this court would have reversed and dismissed the action as to the bank. While this is usually true, there are some recognized exceptions to the rule, one of them being that, if the undisputed and admitted facts are such that but one judgment can be rendered, the trial court should enter such a judgment. A case will not be reversed where the complaining party would not be entitled to a judgment in any event.
The trial court evidently came to ’this same conclusion. The judgment of the district court being the only one that could properly be entered, it is affirmed.
Affirmed.