(dissenting) :
Reference to the opinion in Little v. Little, 125 Mont. 278, 234 Pac. (2d) 832, will disclose that I did not agree with the majority opinion there promulgated. I am of the same opinion still.
I realize that the decision on a former appeal, generally speak*157ing whether right or wrong, establishes the law of the case and is binding on the parties and the courts. This rule is obviously proper when the second trial takes place after the first opinion is pronounced. In such a case it would be improper to hold the trial judge in error when he followed the law as announced by this court, nor would he be justified in ignoring this court’s opinion. That is the reason which gave rise to the rule. Were that rule applicable here, I would concur in the foregoing opinion solely on the ground of stare decisis so far as it treats of this question. But here this court’s opinion on the former appeal was not known to the trial judge when he rendered the judgment now appealed from. When the reason for a rule ceases so does the rule. R. C. M. 1947, sec. 49-102. Erroneous notions of the law made in 125 Mont. 278, 234 Pac. (2d) 832 under the facts here should not be perpetuated on the theory that they established the law of the ease when they were not promulgated or known by the trial judge before the making of the judgment appealed from. The majority opinion in that case should be overruled.
On the question of the right to a jury trial, it is my view, as set out in my dissenting opinion on the former appeal, that plaintiff’s action is in equity. That being so, defendant cannot transform it into a law case by his cross-complaint. Since plaintiff is pursuing an equitable remedy to enforce the Washington decree, a jury trial is not required. Likewise, even though the appointment of a receiver was unauthorized (which I do not concede), the trailer was in the custody of the sheriff and the judgment directing him to sell it to satisfy plaintiff’s demand had the same force and effect of an execution. Compare Thomas v. Thomas, 44 Mont. 102, 119 Pac. 283, Ann. Cas. 1913B, 616.
I think the majority opinion on the former appeal should be overruled and the judgment appealed from should be affirmed.