Moser v. Thorp Sales Corp., No. 68451

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWOLLE
Citation334 N.W.2d 715
PartiesClifton G. MOSER and Caryls C. Moser, Appellees, v. THORP SALES CORPORATION, Thorp Credit, Inc., Hoth and Willman Real Estate and Auctions, Col. Chuck Hoth, Col. Gay Oelke, Marguerite Schmitt, Richard Schmitt, Thorp Finance Corporation of Wisconsin, ITT Thorp Corporation, Lola Jean Woods and Donald J. Woods, The Federal Land Bank of Omaha, and Gary Woods, Intervenor, Appellants.
Decision Date15 June 1983
Docket NumberNo. 68451

Page 715

334 N.W.2d 715
Clifton G. MOSER and Caryls C. Moser, Appellees,
v.
THORP SALES CORPORATION, Thorp Credit, Inc., Hoth and Willman Real Estate and Auctions, Col. Chuck Hoth, Col. Gay Oelke, Marguerite Schmitt, Richard Schmitt, Thorp Finance Corporation of Wisconsin, ITT Thorp Corporation, Lola Jean Woods and Donald J. Woods, The Federal Land Bank of Omaha, and Gary Woods, Intervenor, Appellants.
No. 68451.
Supreme Court of Iowa.
June 15, 1983.

Page 716

John D. Gnagy of Ehrhardt & Gnagy, Elkader, for appellant The Federal Land Bank of Omaha.

Larry F. Woods, Oelwein, and Frederick G. White, Waterloo, for appellants Lola Jean Woods and Donald J. Woods.

Kathleen Neylan and Kevin C. Neylan, of Neylan Law Office, Elkader, for appellees.

Considered by HARRIS, P.J., and McCORMICK, SCHULTZ, CARTER, and WOLLE, JJ.

WOLLE, Justice.

Twice before this court has reviewed de novo the complicated circumstances which have embroiled in controversy and litigation these multiple parties and the 285-acre Clayton County farm in which they have claimed an interest. The facts of the first appeal appear in Moser v. Thorp Sales Corp., 256 N.W.2d 900 (Iowa 1977) (Moser I), while other detailed facts and our resolution of most issues appear in Moser v. Thorp Sales Corp., 312 N.W.2d 881 (Iowa 1981) (Moser II).

The issues now before us concern the parties' entitlement to a fund (the Fund) of $45,479.14 plus accumulated interest which

Page 717

has been held by the clerk of court since it was paid by Mosers following our decision in Moser I. In Moser II, we expressed no opinion as to who should have priority of payment from the Fund, though we did hold that the Fund does not represent an amount required for redemption, as had been implied in Moser I. See 256 N.W.2d at 912. We remanded the issue of priority of payment to the trial court for decision on "the existing record and such additional evidence as may be appropriate," with the parties "allowed to amend their pleadings to allege any additional matters that may have occurred since the last trial that may bear on entitlement to the [F]und." 312 N.W.2d at 898. The Fund now includes over $16,000 in interest which has accumulated by reason of the parties' wise decision to have the principal amount of $45,479.14 fully invested during the pendency of this case.

Following remand, the trial court first held a pretrial conference and was informed by the parties that there was no remaining evidentiary contest of consequence. The parties agreed and the court ordered that the remaining issues be submitted by written brief and argument. The court received briefs and decided the issues now before us in a several-paragraph order and decree.

First, the trial court found that the Fund held by the clerk of court constituted Mosers' payment of the purchase price of $42,180 under their contract with Schmitts to purchase the farm. Mosers were therefore awarded a refund of their $3,299.14 overpayment ($45,479.14 less $42,180) plus interest earned on the $3,299.14 while it was in the hands of the clerk.

Second, the trial court awarded Mosers from the Fund the sum of $18,827.41, plus interest on that amount, as an offset of Schmitts' indebtedness to Mosers, in effect treating that debt for rent as an abatement of the purchase price for the farm.

Next, the trial court determined that court costs of $49.12 charged to Mosers from the appeal in Moser II should be paid from Mosers' share of the Fund, and that other court costs should be taxed to Woods and the Federal Land Bank (FLB), with those costs being paid from the Fund.

The trial court denied the Mosers' claim for attorneys fees, deciding that the defendants' conduct was not such as to justify such an award "in view of the Supreme Court's appraisal thereof," quoting the following language from Moser II:

The reasons for the rather stilted form of the transfer are unclear and we hesitate to imply illegality or fraud on the part of any of the parties.

Id.

Finally the court denied the FLB claim against the Fund, finding that it had neither sought nor obtained any judgment against any parties herein and that its conduct, like that of the Woods, deprived it of the status of a good faith mortgagee.

The trial court's decree provided that the clerk of court should first pay court costs, including witness and referee fees, and then pay the balance in the fund to Mosers, with Mosers' judgment against Schmitts satisfied in full and Mosers' judgment against Woods satisfied in the remaining amount of $32,915.37....

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9 practice notes
  • Dier v. Peters, No. 11–1581.
    • United States
    • United States State Supreme Court of Iowa
    • June 1, 2012
    ...general rule noted above does not apply because the custody action was against Peters, not a third party. See Moser v. Thorp Sales Corp., 334 N.W.2d 715, 719 (Iowa 1983) (declining to apply the exception absent a showing that defendant, “by his tort or breach of contract[,] forced [the plai......
  • Woods v. Schmitt, No. 87-549
    • United States
    • United States State Supreme Court of Iowa
    • April 19, 1989
    ...256 N.W.2d 900 (Iowa 1977) (Moser I); Moser v. Thorp Sales Corp., 312 N.W.2d 881 (Iowa 1981) (Moser II); Moser v. Thorp Sales Corp., 334 N.W.2d 715 (Iowa 1983) (Moser III); see also Neylan v. Moser, 400 N.W.2d 538 (Iowa 1987) (Moser IV). The detailed facts set forth in the prior appeals rev......
  • Van Sloun v. Agans Bros., Inc., No. 07-1852.
    • United States
    • United States State Supreme Court of Iowa
    • February 5, 2010
    ..."we have consistently held that such an affidavit is a prerequisite to taxation of attorneys fees as costs." Moser v. Thorp Sales Corp., 334 N.W.2d 715, 719 (Iowa 1983) (citing Holden v. Voelker, 228 Iowa 589, 591, 293 N.W. 32, 32 (1940)), we have also held that attorneys fees will be allow......
  • Neylan v. Moser, No. 85-1639
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1987
    ...256 N.W.2d 900 (Iowa 1977) (Moser I); Moser v. Thorp Sales Corp., 312 N.W.2d 881 (Iowa 1981) (Moser II); Moser v. Thorp Sales Corp., 334 N.W.2d 715 (Iowa 1983) (Moser III). This appeal concerns the separate equity action filed by attorneys Kathleen and Kevin Neylan (Neylans) against members......
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9 cases
  • Dier v. Peters, No. 11–1581.
    • United States
    • United States State Supreme Court of Iowa
    • June 1, 2012
    ...general rule noted above does not apply because the custody action was against Peters, not a third party. See Moser v. Thorp Sales Corp., 334 N.W.2d 715, 719 (Iowa 1983) (declining to apply the exception absent a showing that defendant, “by his tort or breach of contract[,] forced [the plai......
  • Woods v. Schmitt, No. 87-549
    • United States
    • United States State Supreme Court of Iowa
    • April 19, 1989
    ...256 N.W.2d 900 (Iowa 1977) (Moser I); Moser v. Thorp Sales Corp., 312 N.W.2d 881 (Iowa 1981) (Moser II); Moser v. Thorp Sales Corp., 334 N.W.2d 715 (Iowa 1983) (Moser III); see also Neylan v. Moser, 400 N.W.2d 538 (Iowa 1987) (Moser IV). The detailed facts set forth in the prior appeals rev......
  • Van Sloun v. Agans Bros., Inc., No. 07-1852.
    • United States
    • United States State Supreme Court of Iowa
    • February 5, 2010
    ..."we have consistently held that such an affidavit is a prerequisite to taxation of attorneys fees as costs." Moser v. Thorp Sales Corp., 334 N.W.2d 715, 719 (Iowa 1983) (citing Holden v. Voelker, 228 Iowa 589, 591, 293 N.W. 32, 32 (1940)), we have also held that attorneys fees will be allow......
  • Neylan v. Moser, No. 85-1639
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1987
    ...256 N.W.2d 900 (Iowa 1977) (Moser I); Moser v. Thorp Sales Corp., 312 N.W.2d 881 (Iowa 1981) (Moser II); Moser v. Thorp Sales Corp., 334 N.W.2d 715 (Iowa 1983) (Moser III). This appeal concerns the separate equity action filed by attorneys Kathleen and Kevin Neylan (Neylans) against members......
  • Request a trial to view additional results

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