ties Commission to show cause why commis-lied on by the commission, and by reason of sion should not rehear a case pursuant to the which it dismissed the proceedings, was as mandate upon a writ of review (171 Pac. 74). follows: Commission ordered to proceed to rehearing original cause, etc.

(185 P.)

It is plain that the commission was there, lief can be secured. It cannot be done by way by commanded to hear the cause de novo, to of defense to the entry of the judgment we have directed." determine the questions involved in the original hearing, and to determine these in the

light of the methods and the law applicable as announced by the court. It has no discretionary powers in the premises. It was its plain duty to obey.

The power of the Supreme Court in the case of this primarily legislative tribunal, with but limited quasi judicial powers, is expressly conferred by the statute, and the same power and procedure is directed to be exercised over such tribunal as in case of judicial tribunals.

The rule announced by this court in Galbreath v. Wallrich et al., 48 Colo. 127, 109

Pac. 417, 139 Am. St. Rep. 263, is:

"The rule is that, where the mandate of an appellate court directs a specific judgment to be entered, the tribunal to which such mandate is directed must yield obedience thereto. No modification of the judgment so directed by the appellate tribunal can be made by the trial court, nor can any provision be ingrafted upon or taken from it."

pliance with the judgment of the Supreme In that case the procedure to enforce comCourt was precisely as it is in this case. Application was made to this court and order issued to the lower tribunal to show cause

why its mandate should not be obeyed. It is

not the rule and would be absurd to institute

an independent proceeding to secure the enforcement of the orders of an appellate court in a given case.

It would be a singular proceeding for this court to enforce its orders literally against a district court having broad constitutional ju

dicial powers, and still permit a primarily legislative tribunal to elect whether or not it would obey an order of the court, whatever may be its reasons for so doing.

The Public Utilities Commission has assigned two reasons for its actions: First, that the petitioner filed no application for a suspension bond for a stay of execution of the order of the commission, permitted by the statute; and that no stay was granted,

The court further said in the opinion in and held for such reason its order remained

that case:

"The reason for this rule is obvious. When a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior. What that superior says it shall do, it must do, and that alone. Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of this court, its merits determined, and then remanded with specific directions, the court to which such mandate is directed has no power to do any thing but to obey the mandate; otherwise, litigation would never be ended, and the supreme tribunal of the state would be shorn of that authority over inferior tribunals with which it is invested by our fundamental law. By permitting the filing of the supplemental answer and cross-complaint, the trial court is proceeding contrary to what we directed. True, by this pleading none of the issues settled by the judgment we directed are to be relitigated; but that is not the question. We directed a particular judgment, and nothing is left for the trial court to do but to enter it. By the supplemental answer and cross-complaint it is sought to show that because something has happened since the original judgment was entered, and which was not in issue in the case, the judgment we have directed should not be rendered. To pursue this course is to ignore our mandate. Rights which may have accrued since the rendition of the original judgment, not in issue in the action in which it was rendered, are not adjudicated therein; but the trial court has no power to open or interfere with the judgment of this court in order to settle such rights. If, since the original judgment, something has occurred which would render it inequitable to carry the judgment this court has directed into execution, resort must be had to some form of original proceeding by which appropriate re

in full force and effect and became final before the court rendered its judgment, because of a subsequent order fixing different rates in December, 1917; second, that by accepting the division of the joint rate under the order of the commission, the petitioner voluntarily accepted such division and is bound thereby for such reason. It was then held that, for such reasons, the commission is without power to change its original order for the period from the date thereof, August 1, 1915, to the date when the new rates and new apportionment went into effect, December 27, 1917, under a stipulation of all parties and an order of the commission.

These are purely questions of law which the commission had no power to determine, in the face of the mandate of the Supreme Court.

While it is not necessary that these questions be determined in the matter before us, yet with the expectation that the commission will obey the mandate of the court, and conduct a new hearing of the original question as therein directed, it may not be amiss to determine them now.

[2] The statute provides that the losing party may have an order of the commission stayed, by the Supreme Court alone, upon complying with certain requirements, pending its determination of the questions involved, yet this right is permissive only. It is in no sense a requirement, and the grant of such a stay rests solely upon the judgment of the court in the premises, and is clearly intended as an emergency provision.

The right to have such a stay is precisely like that of the grant of a supersedeas in other cases. The power to grant the order or

writ rests solely with the Supreme Court. The statute declares that the procedure is to be that of the Civil Code.

Can it be said that, in case of appeal from the commission to the appellate court, where the court denies the stay permitted by statute, thereby and by reason thereof, the aggrieved party is to be denied his right of review expressly granted by the statute? In case of review in ordinary matters, this court has never denied the right of review, and could not if it would, upon the ground that it had denied a writ of supersedeas.

When the court set aside the order of the commission, that order was thereby annulled and held for naught, and was of no more effect than if it had never been entered. The case stood precisely as it did before any hearing had been held or order entered at all. [3] The suggestion by the commission that, after the order was entered fixing the division of joint rates, the petitioner voluntarily accepted the rates so ordered, is without

merit.

The petitioner objected to the order in every lawful way provided by the statute. It applied for and secured a reversal of the order. The order was of effect from the date

of its entry, and heavy penalties are provided for refusal to comply with any order of the Commission while in force. To say that a compliance therewith under such circumstances was voluntary upon the part of the petitioner is too absurd for argument. It would be just as reasonable to say that the execution of a criminal under the judgment of a court was voluntary upon his part.

ception of the proceeding before it, until the date of the order fixing a new and different apportionment, now in force.

BURKE, J., agrees with the conclusion only.

(21 Ariz. 166)

SOUTHWEST HAY & GRAIN CO. Inc., v.
SHERER et al. (No. 1748.)

(Supreme Court of Arizona. Dec. 31, 1919.)
1. JUDGMENT 169-PAYMENT OF WITNESS

FEES AS CONDITION ON VACATING DEFAULT.

On vacating a default judgment, the court may, in the exercise of a sound discretion, reaccrued. quire defendant to pay witness fees which had

2. EVIDENCE 113(13)-INSURANCE POLICY

ADMISSIBLE TO SHOW VALUE.

In action for the conversion of hay where

defendant claimed that plaintiff should pay a sum incurred for insuring the hay, the insurance policy held admissible to show that defendant's claim was unjust.

3. APPEAL AND ERROR 1005(3)-REVIEW OF VERDICT BASED ON CONFLICTING EVIDENCE.

but with competent evidence reasonably tending A verdict based upon conflicting evidence, to support the verdict and approved by the trial court, will not be disturbed on appeal.

Appeal from Superior Court, Maricopa County; R. C. Stanford, Judge.

Action by Robert Sherer and C. E. Crowley, copartners doing business under the

[4] The law is unquestioned that a party firm name and style of Robt. Sherer & Co.,

procuring a reversal of an erroneous judgment is entitled to restitution.

That jurisdiction to correct what has been done wrongfully remains with a court so long

as the parties and the case are properly before it, either in the first instance, or when remanded to it by an appellate tribunal was held by the Supreme Court of the United States in Northwestern Fuel Co. v. R. G. Block et al., 139 U. S. 216, 11 Sup. Ct. 523, 35 L. Ed. 151, where the question is fully discussed.

[5] Therefore the Public Utilities Commission has full power to order restitution in the case if it shall find upon the rehearing that there is an amount to be restored by it, proceeding under the direction of the court. The public utilities statute provides ample remedy for the enforcement of the orders of the commission through the courts.

It is ordered that the Public Utilities Commission proceed to a rehearing of the original cause as directed and ordered by this court in the cause above referred to, and in compliance with the rules of law therein announced, and to fix such proper apportionment of joint rates from the time of the in

against the Southwest Hay & Grain Company, Incorporated. Judgment for plaintiffs, and from the judgment and from the order denying new trial defendant appeals. Af

firmed.

W. H. Stilwell, of Phoenix, for appellant.
C. F. Ainsworth, of Phoenix, for appellees.

BAKER, J. The above-entitled action was brought to recover the value of 36,356 pounds of oat hay alleged to have been converted by the defendant. The defense interposed was that the defendant had moved the hay from a shed near Mesa to its warehouse in Phoenix and there stored the hay subject to plaintiff's order. It is claimed that the expense incurred by the defendant in the removal of the hay, consisting of freight and drayage charges, insurance, commissions, etc., was a proper charge against the plaintiff, and that the defendant offered to ship the hay to the plaintiff upon being paid such charges, but that the plaintiff refused to make such payment, and that thereupon the defendant sold the nay in open market for the net sum of $258.14 and tendered that amount to the plaintiff in its answer to the complaint.

(185 P.)

Finding no substantial error in the record, and believing that the result reached was a just one, the judgment of the lower court is affirmed.

CUNNINGHAM, C. J., and ROSS, J., con

cur.

The trial resulted in a verdict and judgment dict of the jury and the judgment of the court for the plaintiff in the sum of $539.33. The on the weight of evidence. defendant appeals from the judgment and the order overruling its motion for a new trial. It will be noticed that the amount involved in the litigation is really only about $281.19. The points raised on the appeal and argued in the briefs of counsel are so simple and commonplace as not to warrant or justify any extended or elaborate discussion of the assignments of error. Out of such poor material it is not possible to formulate a precedent that would be of the slightest interest to the profession, or that would add anything of value to the general store of legal learning. We therefore feel justified in reducing the opinion to the mere statement of our conclusion without adding any elaborate reasons therefor.

[1] The defendant complains, in the first place, of the ruling of the trial court requiring the payment by the defendant of $44.52 witness fees, as a condition to set aside a default judgment which had been entered against the defendant. This complaint is overruled. It was within the sound discretion of the court to impose reasonable terms

upon which the default judgment would be set aside or vacated. This is common practice.

[2] The policy of insurance was properly admitted in evidence. It tended to prove that the defendant's claim that the plaintiff should pay the item of $21 for insurance was unjust.

The ruling of the court in allowing the testimony of Harlson, the president and general manager of the defendant corporation, was not error. It was relevant and admissible upon the question of whether the defendant was justified in shipping the hay from Mesa to Phoenix at plaintiff's cost and

expense.

We find no error in the instructions of the court. The objections thereto are technical and hypercritical rather than substantial. We think the jury were carefully and properly charged by the court as to the law and their duty in deliberating upon the issues

and the verdict.

LENTZ v. LANDERS. (Supreme Court of Arizona.

1. BILLS

AND NOTES

(21 Ariz. 117) (No. 1674.)

Dec. 23, 1919.) 537(4)-EVIDENCE

THAT NOTE WAS PROCURED BY FRAUD FOR
JURY.

In an action on a note given for the pur-
chase price of corporate stock, where defendant
asserted that the note was procured through
fraud, and that plaintiff was not the bona fide
holder, evidence that the note was procured
through fraud held sufficient to go to the jury.
2. CORPORATIONS 116-FALSE REPRESENTA-

TIONS IN SALE OF STOCK CONSTITUTING
FRAUD.

tations of a material fact by either party to a
The general rule is that any false represen-
contract for the sale of corporate stock con-
stitutes fraud if it is made with knowledge that
it is false, or recklessly made without any be-
lief in its truth, with intent that it shall be act-
ed upon by the other party, and if it is relied
upon by the other party to his injury.
3. CORPORATIONS

116-REPRESENTATIONS

OF MATERIAL FACT AS DISTINGUISHED FROM
MATTER OF OPINION ON SALE OF STOCK.

False representation that a corporation held
a patent to an article proposed to be manufac-
tured, made in selling corporate stock, is a rep-
resentation of a material existing fact, and not
a mere statement of opinion,
4. CORPORATIONS

116-RIght of PARTY TO

RELY ON FALSE REPRESENTATION AS TO STOCK
SOLD.

Where the seller of corporate stock falsely
represented that the corporation held a patent,
the fact that the buyer could have demanded the
production of the patent, and in that way as-
certained falsity of the representation, will not
preclude him from setting up such fraud in an
action on a note given for the stock.
5. CORPORATIONS

116-FRAUD IN SALE OF

STOCK; PARTIAL INVESTIGATION NOT DEFEAT-
ING RELIEF FOR.

Partial investigation and reliance in part on false representations made by seller does not preclude relief to a purchaser of corporate stock on the ground of fraud.

[3] While there is some conflict in the evidence, yet there is evidence in the record of a substantial nature tending to support the verdict, and we will not, for that reason, interfere with the result of the deliberations of the jury. We have repeatedly decided that when controverted questions of fact are submitted to a jury and the evidence adduced is conflicting and contradictory but there is competent evidence reasonably tending to support the verdict and the trial court ap-ent or future value of corporate stock are mereproves the same and renders judgment in accordance therewith, and a motion for a new trial is denied, we will not disturb the ver

6. CORPORATIONS 116-FALSE REPRESENTATIONS AS TO VALUE OF CORPORATE STOCK.

While ordinarily statements as to the presly matters of opinion, and though false do not constitute actionable fraud, yet where a party making representations as to the value of stock

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes