concluding until holder of accrued right chooses to assert it, right can be prevented from vesting by change in law; recognizing rights “‘are contingently] when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting”’
How later courts described this case
- concluding until holder of accrued right chooses to assert it, right can be prevented from vesting by change in law; recognizing rights “‘are contingently] when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting”’
- explaining contract rights “are expectant[] when they depend upon the continued existence of the present condition of things until the happening of some future event”
- defining contingent rights as those that “are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting”
- explaining that rights contingent on the happening of a future event are not vested
Written by the judges who cited it.
The opinion
CUNNINGHAM, J.,
Dissenting.—Senate Bill No. 108 was •approved April 1, 1913, and became effective on October 1, 1913. The judgment by this court was entered on January '27, 1913. The scope of review at the time this court had this •cause before it for that purpose was limited to a review of the judgment-roll only. Arizona Eastern R. Co. v. Globe Hardware Co., 14 Ariz. 397 , 129 Pac. 1104 ; Miami Copper Co. v. Strohl, 14 Ariz. 410 , 130 Pac. 605 ; Van Dyke v. Cordova Copper Co., 14 Ariz. 499 , 132 Pac. 94 ; Thomas v. Bartleson, 14 Ariz. 513 , 131 Pac. 973 .
If it be conceded that the provisions of Senate Bill No. 108 have a retrospective effect upon the scope of review, which I do not concede, then in order to justify a review of the questions properly triable upon the motion for a new trial, in the hearing of an appeal from a final judgment, such appeal must have been taken “from a final judgment of the superior court in a civil action, or special proceeding commenced in ¡such court, at any time within six months after the rendition of such judgment, and from any other judgment or order at any time within sixty days after the making of such order.” Sec. 1231, Rev. Stats. Ariz. 1913, Civil Code.
The fact is that this is not an appeal from a final judgment of the superior court in a civil action commenced in such court, but it is an appeal from the final judgment of the territorial district court commenced in such district court.
The motion for a rehearing does not have the effect to vacate the judgment, but its effect, and only effect, is to sus *470 pend further proceedings in the matter of carrying out the judgment. The proceedings of review upon appeal were closed when that judgment was rendered on January 27, 1913. The motion for a rehearing, if granted, would reopen the case for further consideration. If the judgment was void for want of jurisdiction at the time it was rendered, to refuse-to grant a rehearing upon that ground would not validate-a void judgment. T-he judgment must remain a judgment of this court of the date of its rendition, and the procedure carrying that judgment into effect was suspended by the motion for a rehearing from the date of rendition to the date of the order refusing a rehearing and as provided by law. Legislation which affects the procedure of this court after a. cause has been -submitted and a judgment has been rendered therein cannot have any bearing upon such a judgment, simply because a motion for a rehearing is pending. If the motion is granted, the cause is not again open for resubmission, but remains submitted for consideration upon the order of submission. It is my opinion that, where a cause is regularly ordered submitted for the consideration of a court, no change in procedure made thereafter can affect the consideration of such cause. A legislative change of a rule of evidence made after a cause has been submitted to a jury for consideration cannot be permitted to affect the consideration of a cause-submitted to the jury. When a cause has been submitted to a court or to a jury, its consideration depends solely upon the law in force at the time of submission. Had the changes in procedure been made before the cause was submitted, then the question whether the changed procedure would apply to-such cause would arise. No such question is before this court upon the consideration of a motion for a rehearing.
The court upon the hearing of this cause reviewed the questions of fact not properly before the court for the reason no appeal was perfected from the order of the court refusing a new trial. It is my opinion such action was without authority, and the only matter which the court could properly consider was the judgment-roll. So considered, the judgment should have been affirmed, as no reversible error appears upon the face of the judgment-roll.
I adhere to my former views, if the evidence is considered. The facts create a trust relation, making Steinfeld a trustee, *471 with a duty cast upon him as such by the terms of his contract to account for the stock or its proceeds transferred to him by the husband of, and by, the appellee. He procured possession and apparent title to the stock through his promise to treat the parties right and received the conveyance of the stock through the efficacy of that promise, and the court of equity should enforce the spirit of the agreement. That Steinfeld intended to appropriate the dividends payable on the stock before he paid for the stock and out of such dividends pay the purchase price of the stock is the best evidence that no consideration passed supporting the contract of purchase. Such a contract is like one which would employ a fisherman to fish in the public waters upon a promise to give such fisherman a third part of the catch.
The judgment ought to be affirmed: First, because the appeal perfected was from the judgment and no reversible error appears in the judgment-roll; and, second, if the facts are before us for review, the judgment ought to be affirmed, because those facts support the judgment appealed from. I still persist in dissenting, regardless of the majority opinion, and its strictures upon those who cannot understand its terms.
NOTE.—On the question of the liability of the directors of a corporation to the corporation, see note in 55 L. K. A. 751.