Hogle v. Smith

• Decision Date: 24 October 1907
• Parties: HOGLE ET AL. v. SMITH.
• Court: Iowa Supreme Court

136 Iowa 32

113 N.W. 556

HOGLE ET AL.

v.SMITH.

Supreme Court of Iowa.

Oct. 24, 1907.

Weaver, C. J., dissenting.

Appeal from District Court, Blackhawk County; A. S. Blair, Judge.

Action to recover rents for the use and occupation of certain lands. Defendant pleaded a former adjudication, and, upon her motion, a verdict was directed and judgment rendered against plaintiffs for costs. Plaintiffs appeal. Affirmed.Boies & Boies, for appellants.

Edwards & Longley, for appellee.

DEEMER, J.

The facts are not in dispute, and the only difficulty in the case is the application of the law thereto. For some time prior to April of the year 1899, plaintiffs have been the owners as tenants in common of a tract of land in Blackhawk county. About the date last named Evergrene B. Smith, now deceased, claimed to have made a valid contract for the purchase of said land, entered into the possession and use thereof, and thereafter brought an action in equity for the specific performance of his contract. To that action defendants (plaintiffs herein) appeared and defended, denying the contract sued upon. They also filed a cross-bill, asked that title to the land be quieted in them, and for judgment against Smith for the value of the use, rents, and profits of the land while in his possession. Upon trial in the district court the validity and sufficiency of Smith's contract was confirmed, a decree was entered for the specific performance thereof, and defendants' cross-bill was dismissed. An appeal was taken to this court, with the result that the decree of the lower court was reversed. See Smith v. Hogle, 116 Iowa, 645, 88 N. W. 820. It was the opinion of the court that the Smith contract could not be enforced, for the reason that it was made by but one of the cotenants without authority from the others, and for the further reason that there was a material alteration of the contract. Whilst no order for remand was made, a procedendo issued in due course, and, when the case again came up in the district court, a decree was entered therein against the plaintiff Smith dismissing his petition, and for the costs of the suit. In the meantime defendants (plaintiffs herein) filed a petition for a rehearing in this court, calling attention to the fact that no specific reference was made in the original opinion to the cross-bill for rents and profits, and asking that judgment be rendered in this court for the amount thereof, or that the cause be ordered remanded to the district court for such judgment. This petition was overruled generally and without any mention of the grounds for such ruling. Nothing more can be claimed for this than a petition for rehearing was overruled, and the cause, after the issuance of the procedendo, was for disposition in the trial court in harmony with the opinion of this court. Neither the cross-bill to quiet title nor the claim for rents and profits was dismissed when the case was again called up for disposition in the trial court; but, as we have said, it went to decree, and the judgment was that plaintiff Smith's petition be dismissed and that he pay the costs. While either of the parties is entitled upon a trial de novo to have a final decree entered by this court, yet, if the judgment is such as to affect the title to real estate, it should properly be entered in the court where the case was tried. Hait v. Ensign, 61 Iowa, 724, 17 N. W. 163. And in many such cases additional pleadings or new evidence in support of the issues as made may be introduced. Sweet v. Brown, 61 Iowa, 669, 17 N. W. 44;White v. Farlie, 67 Iowa, 628, 25 N. W. 837;Adams County v. Railroad, 44 Iowa, 335;Adams County v. Railroad, 55 Iowa, 94, 2 N. W. 1054, 7 N. W. 471;Sanxey v. Iowa City, 68 Iowa, 542, 27 N. W. 747;Dunton v. McCook, 94 N. W. 942, 120 Iowa, 444;Brewer v. Hugg, 114 Iowa, 486, 87 N. W. 409;Leach v. Germania Co., 102 Iowa, 125, 70 N. W. 1090. After judgment in the main case against Smith, defendants therein brought this action at law to recover for use and occupation and for rents and profits of the premises, and, Smith having died in the meantime, his administratrix was made a party defendant. She appeared and answered, pleading the record in the former case as a prior adjudication, and upon a showing of the matters hitherto mentioned the district court sustained her motion for a directed verdict.

In disposing of the appeal, we shall have occasion to consider, first, the effect of the final decree in the trial court; and, second, the effect of the opinion of this court, and more especially of the ruling upon the petition for a rehearing. After a reversal of an equity case by this court, where no final decree is rendered and the case is or should be remanded because it involves the title to real estate or a procedendo issues with directions to enter a proper decree in the trial court in accord with the opinion of this court, the case stands precisely as any suit in equity between the submission and the entry of the decree, for such decision as should be entered upon the pleading and evidence as they stand, unless, for good cause shown, the trial court permits an amendment to the pleadings or the introduction of additional testimony under the rules hitherto announced. Adams County v. Railroad, 44 Iowa, 335. Upon appeal the judgment is affirmed, modified and affirmed, or reversed. Upon affirmance, the trial court has nothing further to do with the case, but, if modified and affirmed, or reversed and no final decree is entered in this court, the case goes back to the district court, and, as we have said, ordinarily stands as a case submitted and ready for a decree by the trial court in accord with the opinion of this court except where, as we have stated, additional pleadings or testimony may be introduced. Indeed, no procedendo from this court is necessary to authorize the trial court to redocket the case and proceed with it in a proper manner. Becker v. Becker, 50 Iowa, 139;State v. Knouse, 33 Iowa, 365. After the time for the filing of a petition for a rehearing has expired, either party may on notice to the other have the case redocketed and properly disposed of. See cases last above cited. We shall assume, then, in disposing of the first proposition submitted for our decision, that the original case went to trial on the issues already stated, was submitted and went to a decree dismissing plaintiff Smith's petition at his costs; the defendants therein not having withdrawn their cross-bill or claim for rents and profits, but permitting the same to remain in the case, and for some reason not caring to introduce evidence in support thereof, or for reasons best known to them waiving a decree upon their cross-bill.

What effect does such a decree have upon their right to prosecute another action for rents and profits during the time plaintiff in that suit was in possession of the property? Manifestly but one answer can, as we think, be made to this inquiry. Of course, defendants in the original suit--plaintiffs in this--were not required to plead their cross-action either to quiet title or for rents and profits, but having done so, and failing to dismiss the same before final decree, the judgment is conclusive upon them, as much so as if they had introduced evidence in support thereof and for some reason had failed to recover. Hayden v. Anderson, 17 Iowa, 158;Schmidt v. Zahensdorf, 30 Iowa, 498;Gunsaulis v. Cadwallader, 48 Iowa, 48;Street v. Beckman, 43 Iowa, 496;Painter v. Hogue, 48 Iowa, 426;Goodhue v. Daniels, 54 Iowa, 19, 6 N. W. 129;Newby v. Caldwell, 54 Iowa, 102, 6 N. W. 154;Carl v. Knott, 16 Iowa, 379;Whitaker v. Johnson Co., 12 Iowa, 595;Hahn v. Miller, 68 Iowa, 745, 28 N. W. 51;Madison v. Coal Co., 114 Iowa, 56, 86 N. W. 41;Zalesky v. Home Ins. Co., 114 Iowa, 516, 87 N. W. 428;Kenyon v. Wilson, 78 Iowa, 408, 43 N. W. 227;Case v. Hicks, 76 Iowa, 36, 40 N. W. 75;Des Moines v. Bullard, 89 Iowa, 749, 56 N. W. 498;Donahue v. McCosh, 81 Iowa, 296, 46 N. W. 1008;Hodge v. Shaw, 85 Iowa, 137, 52 N. W. 8, 39 Am. St. Rep. 290;Keokuk Co. v. Keokuk, 80 Iowa, 137, 45 N. W. 555. The cross-bill interposed in the original case came within paragraph 2 of section 3570 of the Code, which provides for a counterclaim of a cause of action arising out of the contracts or transactions set forth in the petition or connected with the subject of the action. In other words, the counterclaim in this case is what is known as a “set-off.” It seems to be well settled that, if a defendant having a demand against a plaintiff pleads it as a set-off or counterclaim in the action, he must, to use an expression from the books, “make the most of his opportunity, and exhibit his whole damage, for the judgment in the action will prevent him from afterwards using the same matter or any part of it as a separate cause of action against the former plaintiff.” Munn v. Shannon, 86 Iowa, 363, 53 N. W. 263;Gunsaulis v. Cadwallader, 48 Iowa, 48, supra. See, also, cases cited in 23 Cyc. p. 1201, showing that this rule is common to nearly all jurisdictions. In some states it is provided that, if the demand or cross-claim arises out of the transactions set forth in the complaint as the foundation of plaintiff's action or is connected with the subject of the action, defendant must present it as a set-off or forfeit his right to claim relief upon it. Brosnan v. Kramer, 66 Pac. (Cal.) 979, 135 Cal. 36;Douglas v. Hastings, 17 Minn. 35 (Gil. 18). But that does not seem to be the rule here unless the matter be pleaded. Had there been no appeal of the original case, that action would have stood upon plaintiff's petition for specific performance, defendant's denial of the validity of the contract, a counterclaim to quiet title, and a set-off or counterclaim for rents and profits during the time the plaintiff in that action was in possession. The case was tried without any withdrawal of the counterclaims or set-offs, resulting in a decree dismissing plaintiff's...