The following opinion on motion for rehearing was filed April 21, 1904. Rehearing denied:
Sedgwick, J.In the brief in support of the motion for rehearing in this case, it is insisted that the opinion complained of disregards the former adjudication of this court; and quotations are made from the opinion upon the first hearing, as showing that the law of the case as established in that opinion, has been disregarded. In this regard, we think that the question actually adjudicated by the former opinion referred to, has been overlooked by the writer of the brief.
It was determined upon that hearing that a peremptory writ of mandamus can not be issued against the officers of a private corporation without notice, and an opportunity to be heard. This was the principal question adjudicated in the case, and the several other matters determined relate entirely to questions of practice, and are plainly stated, and are in no respect inconsistent with the principles of law as adjudicated in the opinion complained of. The legal principles set forth in the eight paragraphs of the syllabus of the first decision, are not questioned, and they clearly justify the decision then made.
Upon the last hearing in this court, the question was whether the order of the district court directing Hayden Brothers to pay the ten thousand dollars in controversy *344to the trustee in bankruptcy,, could be sustained. This was the first hearing in this court upon that question,' and was the first opportunity to investigate the matters necessary to its solution, and if there is any language in any of the former opinions of this court in this litigation that appears to determine this question before it was presented to this court, the language was not so intended.
It is complained that by the opinion in this case, the rights of parties are left in doubt.
Upon an order to show cause in a mandamus proceeding why the money should not he returned, the proceedings are in their nature summary. In State v. Dickinson, 63 Neb. 869, the question was whether ah independent action in equity enjoining further proceedings under the order to show cause, was the necessary and proper remedy to enable the court to determine whether it should order the money returned. The matter determined was that such action in equity was unnecessary and improper, and that upon the order to show cause in the mandamus proceedings, the court could make the necessary investigation of the facts upon which the propriety of such an order might depend. It was not intended to determine that the rights of the parties to the money, in controversy could be finally adjudicated in this summary proceeding. In the last opinion (ante, p. 331), it was held that under the circumstances there set forth, Jhe court would not, in this summary proceeding, order a return of the money in controversy. This was put upon the ground, among other things, that the money was left by Hayden Brothers with the exposition authorities, as a payment for stock of the company to be issued to Hayden Brothers, and the company had refused to issue the stock, and had refused to recognize the right of Hayden Brothers to pay for and receive the stock, and had by its executive committee ordered a return of the money to Hayden Brothers.
It was considered that the company having, perhaps, just ground to do so, had not rescinded this action of the executive committee, but had allowed it to remain as the *345action of the company until many months thereafter, when, the company having gone into bankruptcy, the trustee in bankruptcy sought to procure a return of the money.
In determining that this was not a proper case in which to summarily order a return of the money before the rights of the parties had been adjudicated in an action at law, it was suggested, in addition to the foregoing considerations as to the character and condition of the proceedings, that to order the money returned to the trustee in bankruptcy would, in effect, place the. claim of Hayden Brothers upon the same footing with ordinary claims against bankrupt estates. Whereas, Hayden Brothers being solvent, the remedy of the exposition company would be effective if it could establish the liability of Hayden Brothers in an independent action.
It was said in the opinion that:
“It was claimed on the part of some that the subscription books for the stock had been closed, and that the subscription of Hayden Brothers for $10,000 additional stock was invalid. It appears that Hayden Brothers accepted this view and consented that their subscription be canceled, and it followed, as a matter of course, that their money which they had paid for their stock should be returned to them.”
It was not by this language intended to hold that in this action the rights of the parties were finally adjudicated. The thought was that, for the purposes of this summary proceeding, these facts had been made sufficiently to appear.
It was not supposed that the refusal of this order in these proceedings would constitute a bar to a prosecution of the claim of the trustee against Hayden Brothers in a suitable action brought for that purpose.
We are satisfied with the conclusion reached in the opinion upon the last hearing for the reasons there given. The motion for rehearing is overruled.
Rbheabing denied.