Priest v. Eide

47 P. 958, 19 Mont. 53, 1896 Mont. LEXIS 334

• Court: Montana Supreme Court
• Decided: December 21, 1896
• Status: Published

Opinions

Pemberton, C. J.

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.

DeWitt, J., concurs. Hunt, J., disqualified.