Gunsch v. Gunsch

• Decision Date: 23 November 1955
• Docket Number: No. 7438,7438
• Citation: 73 N.W.2d 345
• Parties: Dan GUNSCH and John Gunsch, Plaintiffs and Appellants, v. Tony GUNSCH, Leona Gunsch, David Gunsch, Fred Bauer, Arthur Bieber, and John O. Lyngstad, Commissioner of University & School Lands for the State of North Dakota and Albert Bauman, Guardian of Tony Gunsch, an incompetent person, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 345

73 N.W.2d 345

Dan GUNSCH and John Gunsch, Plaintiffs and Appellants, v. Tony GUNSCH, Leona Gunsch, David Gunsch, Fred Bauer, Arthur Bieber, and John O. Lyngstad, Commissioner of University &amp School Lands for the State of North Dakota and Albert Bauman, Guardian of Tony Gunsch, an incompetent person Defendants and Respondents.

No. 7438.

Supreme Court of North Dakota.

Nov. 23, 1955.

Rehearing Denied Dec. 19, 1955.

Syllabus by the Court

1. Where an additional finding and conclusion thereon filed in this court after remand is not within the issues designated in the mandate of this court, and is not supported

by substantial evidence, it cannot be sustained.

2. In a case appealed to the supreme court, it is the duty of the lower court, on remand, to comply with the mandate of the supreme court.

3. A party wrongfully deprived of the possession of personal property may recover as damages the value of its use during the period he was deprived thereof where such property has useable value.

4. In the taking of testimony on remand involving accounting for grain and the value of the use of personal property, an attack upon the validity of the appointment of a general guardian for an incompetent is a collateral attack upon the order appointing such guardian, and not within issues involved.

J. K. Murray, Bismarck, for plaintiffs and appellants.

Floyd B. Sperry, Golden Valley, for Tony Gunsch, Leona Gunsch, David Gunsch, Fred Bauer, and Arthur Bieber, defendants and respondents.

John Adams, Asst. Atty. Gen., Bismarck, for Commissioner of University and School Lands, defendant and respondent.

JOHNSON, Judge.

The main issues in this action were determined by this court in Gunsch v. Gunsch, N.D., 67 N.W.2d 311, 328. The case was remanded to the trial court for the purpose of taking additional testimony on two issues: (1) to procure an accounting of one-third of the 1951 crop on the 'section' belonging to Tony Gunsch, and (2) to determine the value of the use of the machinery of Tony Gunsch, of which the plaintiffs had possession since the spring of 1951 under assertion of ownership based on an alleged oral contract to purchase. This is a sequel to the above cited opinion.

In the above opinion we said:

'Based upon our finding that the parties never reached an agreement of sale and purchase of the property involved in this case the status of the parties and the property is as follows: * * * (5) Tony Gunsch is the owner of the machinery taken by the plaintiffs and entitled to the immediate possession thereof and the reasonably value of the use of such machinery; * * *.'

We also said:

'This case is remanded to the district court with instructions to permit additional testimony to be presented on the issues mentioned, by both sides, after which the district court will make further findings and cause the additional record to be settled, certified and returned to this court with the record that is now remanded for further proceedings in conformity with this opinion.' (Emphasis supplied.)

The trial court has taken further testimony and has filed here its additional findings and conclusions of law on the two questions involved in the remand. It found that Tony Gunsch was entitled to judgment against the plaintiffs in this action for 500 bushels of grain at $2 a bushel in the sum of $1,000, together with interest thereon at the rate of four per cent per annum from January 1, 1952, making a total of $1,131.78. This finding and conclusion of law thereon was based on testimony that some of the grain from the 'State land' had been mingled with the grain from the 'section'. Grain amounting to 1494 bushels from the 'section' and the 'State land' had been stored in Tony's name in an elevator at Zap, North Dakota, by the plaintiffs. The testimony indicates that all of Tony's share of the grain for 1951 from the 'section' was included in this storage ticket. This grain was decreed to Leona Gunsch in the divorce action as a part of her interest in Tony Gunsch's property. But it developed upon the taking of the additional testimony on this remand that at the prior hearing when this case was first before the trial court that the plaintiffs had failed to disclose that 500 bushels of grain which belonged to Tony had not been accounted for. It appears clear, however, from the testimony that the 500 bushels of grain came from the 'State land'. There is no testimony in the record that the grain was raised on the 'section'. Plaintiffs readily admit that no mention was made of the 500 bushels of grain coming from the 'State land' at the trial in 1953. It is now their contention that the 500 bushels of grain from the 'State land', which they failed to mention at the time of the original trial was sold by them and that they gave the proceeds to Tony Gunsch in cash. They have no documentary evidence to support this testimony. But it is undisputed that if any grain has not been accounted for by Dan and John Gunsch, and which belongs to Tony, it amounts to 500 bushels and came from crops raised on the 'State land'. There is no satisfactory evidence in this record to show that the plaintiffs are indebted to Tony Gunsch for $1,131.78 for 500...