Iowa Public Service Co. v. Sioux City

• Decision Date: 24 July 1962
• Docket Number: No. 50712,50712
• Citation: 254 Iowa 22,116 N.W.2d 466
• Parties: IOWA PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. SLOUX CITY, Iowa, George W. Young, Mayor, Stanley L. Greigg, James E. Reeder, Jr., Julian L. Torgerson, and Marie White, Members of the City Council of Sioux City, Appellees.
• Court: Iowa Supreme Court

Page 466

116 N.W.2d 466

254 Iowa 22

IOWA PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. SLOUX CITY, Iowa, George W. Young, Mayor, Stanley L. Greigg, James E. Reeder, Jr., Julian L. Torgerson, and Marie White, Members of the City Council of Sioux City, Appellees.

No. 50712.

Supreme Court of Iowa.

July 24, 1962.

Sifford & Wadden, Sioux City, and Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for appellant.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellees.

GARFIELD, Chief Justice.

Defendants-appellees, Sioux City and members of its city council, filed motion to dismiss appeal of plaintiff, Iowa Public Service Co., in part for want of jurisdiction. The motion and resistance and supporting briefs were argued and submitted. The questions raised were deemed of sufficient importance to call for an opinion.

The action was commenced December 29, 1959. Plaintiff alleged the city's Ordinance No. R8376 did not provide plaintiff a fair return on the value of its property devoted to public use in the city, fixed rates for gas service which were confiscatory and deprived plaintiff of its property without due process. A temporary injunction issued against enforcement of the ordinance and interference with rates to be put in effect by plaintiff upon its filing a bond of $750,000 conditioned to pay all damages adjudged against it for wrongful issuance of the injunction.

Trial of the case commenced February 23, 1961, and was concluded, with several intervening continuances, May 4. Findings of Fact, Conclusions of Law and Decree were filed September 18, 1961, consisting of 59 typewritten pages. No appeal was taken from the decree or any part thereof by either party.

The decretal portion of the decree provides: 'It is therefore ordered, adjudged and decreed by the court that Ordinance No. R8376 of the City of Sioux City is unconstitutional; that permanent injunction will issue against the defendants, or any other person or persons acting by, through, or under their authority, enjoining them from enforcing the terms of said Ordinance. Jurisdiction of this action, the parties and the subject matter is reserved for such further proceedings as may become appropriate. Costs are taxed to the defendants.'

Defendants-appellees thereafter filed their application for refund of the portion of rates collected by plaintiff alleged to be excessive. Hearing was had on the application and on April 2, 1962, an order was entered directing plaintiff-appellant to refund $624,705 collected from gas users in 1960 and 1961, together with interest and state sales tax, and also further amounts collected in 1962. Plaintiff perfected timely appeal to this court from this refund order. Its notice of appeal, after reciting the appeal from the refund order, goes on to state:

'And from Findings of Fact and Conclusions of Law, filed herein on the 18th day of September 1961 and from each and every ruling adverse to plaintiff during the progress and hearing of the cause upon which Findings of Fact and Conclusions of Law were based and from all other matters, orders and rulings adverse to the plaintiff in this cause from its inception to and including the aforesaid Refund Order dated April 2, 1962, adopted by the court on this refund hearing and affecting the Refund Order.' (Emphasis added.)

Defendants do not question plaintiff's right to appeal from the refund order but have moved to dismiss the portion of its appeal stated in the above quoted language on the ground this court is without jurisdiction to hear it. Principal argument in support of the motion is that the findings of fact (of which there were 52 pages) in the decree of September 18, 1961, have the same force and effect as final adjudications that the decretal part of the decree does.

Plaintiff's main response to this argument is that the September decree proper (holding the ordinance unconstitutional and enjoining its enforcement) was in its favor, having won its case it could not appeal from any findings which might be adverse to it, they would be deemed without prejudice to plaintiff and therefore such findings are not conclusive against it on its appeal from the refund order.

We think our decisions are contrary to defendant's principal argument in support of their motion and sustain plaintiff's response thereto.

I. What would perhaps be a close question, if it were not for the position taken by both sides thereon, is whether the decree of September 18, 1961, was a final judgment from which appeal lay as a matter of right under rule 331(a), Rules of Civil Procedure, or an interlocutory order from which permission to appeal must have been obtained from us under R.C.P. 332.

Defendants' motion to dismiss alleges the September decree was a final judgment. Plaintiff admits this and that it was appealable as a matter of right. We are therefore justified in taking this fact as established. However, as above indicated and as we hope to make clear, it does not follow plaintiff could appeal from mere findings of fact in the decree or from the decree itself which was in its favor. Defendants, however, could have appealed from the decree adverse to it within 30 days from its entry (R.C.P. 335).

II. Many of our decisions support the conclusion stated just preceding Division I above. In Van Gorden v. Schuller, 192 Iowa 853, 857-8, 185 N.W. 604, 606, plaintiff appealed from a correct decree containing a finding of fact adverse to him which he feared would have the effect of an adjudication against him in another action he desired to bring. We held any error in the court's reasoning was not prejudicial and was not the subject of review on appeal. The opinion states:

'The decree, properly speaking, includes only that part of the court's final pronouncement which adjudicates and determines the issues in the case and defines and settles the rights and interests of the parties so far as they relate to the subject-matter of the controversy. If the court goes farther, and sets forth the reasons which have influenced its decision, such statement or opinion is not an essential part of the decree. The reasoning may be unsound, but if the conclusion is right * * * the error in reasoning is not prejudicial, and will not be the subject of review on appeal. As has been well said by the Maryland court, in a recent case:

"The reasons upon which the court acted as expressed in its opinion, are one thing, the thing decreed is quite a different thing'.'

Van Gorden v. Schuller, supra, is followed in Van Alstine v. Hartnett, 210 Iowa 999, 1002, 231 N.W. 448, 449, where on appeal plaintiffs relied on a finding there should be a lien upon certain property superior to that of a chattel mortgage. Such provision, however, was not included in the decretal part of the decree. After quoting from Van Gorden v. Schuller, we held:

'It must follow that there is a distinction between the findings and opinion of the court and the decretal part of the decree, and also whatever may appear in the writing designated as 'the decree,' only those things are of force and effect which are in the provisions of the instrument which in fact is the decree. As applied to the facts before us, it must be held, therefore, that paragraph 7 of the finding, purporting to create a lien superior to that of the holder of the chattel mortgage, has no force and effect and is binding upon no one.'

In In re Estate of Cohen, 216 Iowa 649, 653, 246 N.W. 780, 782, there was a finding in a decree foreclosing a mortgage that the maker's surviving widow signed the note in suit for his accommodation only but a personal judgment was nevertheless entered against her. On the strength of this finding the widow filed a claim against her husband's estate. We held the finding was insufficient proof the note was signed for accommodation only. The opinion says: 'It appears to be the law of this state that the court's finding of facts in a decree, although followed in the same instrument by a final judgment and decree, is no part of the adjudication, and is not binding as such. (citations)

'In Higley v. Kinsman, supra (Iowa, 216 N.W. 673, 676), the court said: 'It is a well-established rule that it is only the decretal portion of a decree that is binding and becomes res adjudicata. The recital of facts in a decree is usual and is proper, but the rights of the parties are adjudicated, not by the recital of facts, but solely by the decretal portion of the decree. It is this and this only that becomes the final judgment of the court, from which an appeal will lie.''

State ex rel. Howson v. Consolidated School District of Elvira, 245 Iowa 1244, 1249, 65 N.W.2d 168, 171, is similar to In re Estate of Cohen, supra (which it cites, together with Van Gorden v. Schuller, supra), in holding that recitals in a decree are not verities nor competent proof of the fact thus recited and the determination thereof.

Creel v. Hammans, 232 Iowa 95, 99, 5 N.W.2d 169, 171, is similar to Van Gorden v. Schuller, supra, in that the appeal was taken to obtain a review of an alleged erroneous finding of fact not included in the decree proper. We dismissed the...