Janssen v. Tusha

• Decision Date: 27 March 1941
• Docket Number: 8383,8384.
• Parties: JANSSEN v. TUSHA et al. (two cases).
• Court: South Dakota Supreme Court

297 N.W. 119

67 S.D. 597

JANSSEN v. TUSHA et al. (two cases).

Nos. 8383, 8384.

Supreme Court of South Dakota.

March 27, 1941

Rehearing Denied April 21, 1941.

Appeal from Circuit Court, McCook County; John T. Medin, Circuit Judge.

Separate actions by Dick D. Janssen and John D. Janssen against Lena Tusha, as administratrix with will annexed of the estate of Anna D. Janssen, also known as Anna Janssen, deceased, and others to quiet title to separate parcels of realty, wherein Lida Janssen and Anna D. Janssen were impleaded as defendants. From adverse judgments, the plaintiffs and impleaded defendants appeal.

Judgments affirmed.

H. Van Ruschen, of Salem, for plaintiffs and appellants.

C. H McCay and Joe W. Flood, both of Salem, for impleaded defendants and appellants.

H. L Bleeker and Danforth & Seacat, all of Alexandria, and Danforth & Danforth, of Sioux Falls, for defendants and respondents.

ROBERTS, Judge.

Plaintiffs Dick D. Janssen and John D. Janssen instituted separate actions against the administratrix of the estate of Anna D. Janssen and others to quiet title to the separate tracts of land described in the complaints. The answers of the defendants set up in detail the transactions between these plaintiffs and their mother, Anna D. Janssen. It is alleged that the mother conveyed the separate tracts to these plaintiffs, and that each of the plaintiffs agreed to pay specified sums during the lifetime of the mother, and a fixed sum evidenced by a note and mortgage payable on demand after proving of will and starting of probate proceedings of the mother's estate. Defendants by so-called counterclaims and cross complaints set up the same alleged facts and asked that the mortgages be foreclosed. Plaintiffs interposed demurrers to the answers and the counterclaims and cross complaints, and upon appeal, the orders overruling the demurrers were by this court affirmed. Janssen v. Tusha, 65 S.D. 124, 271 N.W. 823. Plaintiffs then served and filed replies to the counterclaims and cross complaints denying generally the allegations therein, and affirmatively alleging that the notes and mortgages were void because not made to a person in being. The trial court having found for the plaintiffs upon the issues thus joined, the defendants appealed to this court. Janssen v. Tusha, 66 S.D. 604, 287 N.W. 501. It is there held that where no ambiguities in the agreements existed extrinsic evidence was not admissible in determining the terms of the agreements, that each of these plaintiffs contracted to pay $500 annually to the mother and a fixed sum to her estate, that the notes payable to the estate constituted valid bearer paper, and that the instruments executed and delivered for the purpose of pledging land as security for the debts could be enforced as equitable mortgages.

The judgments having been reversed and the causes being before the lower court for retrial, the plaintiffs asked leave to amend the replies to the counterclaims and cross complaints by alleging mistake and error in the written agreements entered into between the parties and asking reformation of the agreements by correction of the alleged mistakes so as to make them conform to the intention of the parties. The trial court denied the motions for leave to amend. Findings and conclusions of law were entered in favor of the defendants. Judgments were entered, decreeing that the mortgages be foreclosed, that the properties be sold, that the proceeds of sale over and above the expenses thereof be applied upon the amounts due, and that defendant administratrix have executions for deficiencies, if any. Plaintiffs applied to the court to fix the amounts of undertakings to stay executions on the judgments under the provisions of SDC 33.0718, which provides that if the judgment appealed from direct the sale of the mortgage premises, the execution shall not be stayed unless the undertakings be executed " conditioned for the payment of any deficiency which may arise * * * and all costs and damages which may be awarded to the respondent on such appeal." The court fixed the amount of each of the undertakings at $4,000. Undertakings were not furnished by the appellants, and the administratrix bid in each of the properties at foreclosure sale for the sum of $6,500, which amount in each case was less than the amount of the judgment. From the judgments entered, the plaintiffs and impleaded defendants have appealed.

The assignments of error present the contentions, first, that the trial court should have permitted the plaintiffs to amend, and second, that the trial court erred in fixing the amount of each of the undertakings.

The mandate of this court ordering a reversal of a judgment without other direction nullifies the judgment, findings of facts, and conclusions of law, and leaves the case standing as if no judgment or decree had ever been entered. 5 C.J.S. Appeal and Error, § 1950; Schnepper v. Whiting, 18 S.D. 38, 99 N.W. 84; Van Abel v. Wemmering, 36 S.D. 31, 153 N.W. 911; Tuthill v. Sherman, 39 S.D. 464, 165 N.W.4; Wenzlaff v. Tripp State Bank, 55 S.D. 626, 227 N.W. 79. The reversal of a judgment does not preclude the right to amend a pleading; amendment after reversal has found recognition in this court. Steere v. Gingery, 24 S.D. 423, 123 N.W. 863; Tuthill v. Sherman, supra; Hemmer-Miller Development Co. v. Hudson Insurance Co. of New York, 63 S.D. 109, 256 N.W. 798. A pleading may not be amended and new issues presented...