Northwestern Nat. Bank of Sioux City v. Steinbeck

• Citation: 179 N.W.2d 471
• Decision Date: 02 September 1970
• Docket Number: No. 54088,54088
• Parties: NORTHWESTERN NATIONAL BANK OF SIOUX CITY, Appellee, v. Thomas E. STEINBECK and Marianne Steinbeck, Appellants.
• Court: United States State Supreme Court of Iowa

Page 471

179 N.W.2d 471

NORTHWESTERN NATIONAL BANK OF SIOUX CITY, Appellee, v. Thomas E. STEINBECK and Marianne Steinbeck, Appellants.

No. 54088.

Supreme Court of Iowa.

Sept. 2, 1970.

Runge & Runge, Sioux City, for appellants.

Dewie J. Gaul of Sifford, Wadden & Davis, Sioux City, for appellee.

LARSON, Justice.

The trial court sustained plaintiff's motion for summary judgment against defendants in an action seeking judgment on two demand promissory notes, executed and delivered to plaintiff in the summer of 1968, and foreclosure of two mortgages on land in Plymouth County, Iowa, executed contemporaneously therewith. From judgment adverse to them, defendants appeal, contending their resistance to plaintiff's motion apprised the court of the existence of a substantial issue of fact which might well determine the rights of the parties to this action. We agree and remand the cause for a trial on the issue of whether the defendant Marianne Steinbeck signed the notes and mortgages voluntarily or through fear, duress and undue influence, as alleged in her sworn answers to interrogatories.

The record before us consists of the pleadings, interrogatories and answers thereto, affidavits of the parties, and the trial court's decision. The vital question raised by this appeal is relatively simple and concerns only the timeliness and adequacy of defendants' assertion of undue influence, fear and duress, by which plaintiff's agents obtained her signature on the involved instruments. In its motion for summary judgment filed July 14, 1969, pursuant to Iowa Rule of Civil Procedure 237, plaintiff stated on the personal affidavit of its president that the claims made in its petition are true, that the amounts stated therein are due, owing and unpaid, that it believes no defense exists against the claims, that as shown by the attached affidavit and by admissions contained on defendants' answers there is no genuine dispute as to the liability of defendants, that it appears without dispute the defendants executed the notes and mortgages sued on, that under the provisions of section 554.3408 of the 1966 Code there was consideration for the execution of the instruments and value received therefor under the provisions of section 554.3303 of the 1966 Code, that the pleaded homestead exemption is no defense inasmuch as the mortgages given comply with the requirements for a mortgage on a homestead set out in sections 561.13 and 561.21 of the Code, and that the allegations of defendant Marianne Steinbeck's answer in paragraph 12(b) are mere conclusions on her part and constitute no defense. We note here that paragraph 12(b) of her answer states, 'That the signing of the instruments labeled as Exhibits A, B, C and D as contained in Plaintiff's petition by this Defendant, Marianne Steinbeck, was involuntary and was obtained by duress and undue influence, therefore the said Exhibits A, B, C and D should be set aside and held for naught.'

The supporting affidavit by Stanley W. Evans, president of the plaintiff bank, among other things stated, '* * * I am familiar with the facts and events giving rise to said cause of action; the Defendant Thomas E. Steinbeck immediately prior to the execution of the notes and mortgages referred to in Plaintiff's Petition was indebted to the Plaintiff for the amounts stated in said notes; on behalf of the Plaintiff I advised the Defendant Thomas E. Steinbeck that the Plaintiff would require as security for said indebtedness that notes and mortgages be signed by said Defendant Thomas E. Steinbeck and his wife; that to avoid immediate collection action by Plaintiff and to secure additional time to pay said indebtedness the Defendants Thomas E. Steinbeck and Marianne Steinbeck executed and delivered to the Plaintiff the notes and mortgages described in Plaintiff's petition; that the Defendant Marianne Steinbeck signed said instruments voluntarily and no duress or influence was exerted by the Plaintiff or any of its representatives upon her; that the amounts recited in Plaintiff's petition as being due and owing are due, owing, and unpaid; and what it have read the Plaintiff's petition and what it states is true and correct.'

On July 30, 1969, defendants' resistance to the motion for summary judgment was filed requesting a hearing on the motion and asking that the hearing be set on or after the 29th day of August 1969 because the defendant Marianne Steinbeck was outside the continental United States, and stating that a proper resistance could not be maintained without her affidavit.

On August 29, 1969, the defendant Marianne Steinbeck filed a separate resistance to plaintiff's motion asserting that a real defense does exist and claiming there is a genuine dispute and issue as to her liability. Her attached sworn affidavit states inter alia:

'That I am one of the Defendants in the above entitled action; * * * that I was informed by the employees and agents of the Plaintiff that I must execute said instruments, even though said instruments represented a debt of the C. Elmer Steinbeck Company; that no consideration or monies was given this Defendant as a result of executing said instruments; that no monies represented by said instruments were used in the purchase price of said homestead; that said homestead was acquired prior to execution of any of these said instruments.'

From the record we also learn that on July 10, 1969, plaintiff, pursuant to rule 121, R.C.P., propounded five interrogatories to defendants, that Mr. Steinbeck answered at once but due to Marianne Steinbeck's absence in Germany she could not do so at that time. A letter from her attorney to the district judge explained her unavailability and promised her answers as soon as she returned. No objection was made to this delay, and on her return home she filed her answers, which included the following sworn answer to plaintiff's Interrogatory No. 4:

'That I am naturalized citizen of the United States and have difficulty in understanding and reading the English language. That at the time of the execution of said instruments, the Plaintiff's employee and agent informed me that I would be responsible for any alleged debts, which were the debts of C. Elmer Steinbeck Company, and that I must execute the instruments; that as a result of not understanding the language and being unaware that the homestead was part of the instrument, and not being informed so by Plaintiff's agent and employee through fear and duress and undue influence, as aforesaid, and not being advised that said instrument included her homestead and that she was fully within her rights not to execute said instrument, the instrument was executed.'

On September 25, 1969, the trial court entered its order sustaining plaintiff's motion. It stated:

'* * * In this cause the Motion for Summary Judgment was supported by an affidavit by Defendant Marianne Steinbeck, which affidavit was filed at 9:59 A.M. on the date of the hearing. Hence said affidavit was not filed 'prior to the day of hearing' as required by Rule 237(c). Nor was any affidavit filed prior to said time showing why the affidavit could not be filed prior to the day of hearing, as Rule 237(f) permits.

'Since said affidavit by Defendant Marianne Steinbeck was not filed prior to the date of hearing, said affidavit was not timely filed and presents no defense to the Motion for Summary Judgment.

'* * *

'The only thing filed prior to the date of hearing by the Defendants Thomas E. Steinbeck and Marianne Steinbeck besides pleadings were certain Answers to Interrogatories filed July 21, 1969. * * * These allegations stated no defense to the pending action in view of Section 554.3408 of the 1966 Code of Iowa * * *.

'Even if the affidavit filed by the Defendant Marianne Steinbeck on August 29, 1969, is considered, no genuine issue for trial is shown. * * * Said affidavit does not assert any specific facts showing any duress or undue influence. * * *

'On September 5, 1969, certain additional Answers to Interrogatories were filed by the Defendants Thomas E. Steinbeck and Marianne Steinbeck. None of said Answers contain any specific facts showing there is a genuine issue for trial. Absent such a showing, summary judgment should be entered.

'IT IS THEREFORE HEREBY ORDERED, ADJUDGED, AND DECREED that summary judgment be, and it hereby is, entered against the Defendants Thomas E. Steinbeck and Marianne Steinbeck for the relief prayed for in Plaintiff's petition. * * *'

Defendants' appeal assigns numerous alleged errors but confines their argument here to the alleged error by the trial court in ruling that under Iowa Rules of Civil Procedure 237 there was no proper and timely issue of fact raised by defendants which required a jury determination. They contend two ultimate fact issues were presented to the court: (1) whether their statements in the pleadings, answers to interrogatories, and affidavits reveal a substantial factual issue as to their liability for the debt, and (2) whether they reveal a substantial factual issue as to the validity of the signatures of the defendant Marianne Steinbeck, i.e., as to whether her signatures were obtained by duress and were therefore involuntary and invalid.

Under our law and decisions the trial court apparently was correct in holding there was adequate consideration for the execution of these instruments by defendants. Defendants do not now seriously contend otherwise. Thus, we will direct primary attention to the question of whether under the provisions of rule 237, R.C.P., adequately-worded contentions were presented to the court which would apprise it of a substantial material issue of fact that could not be resolved as a matter of law prior to its consideration and ruling on plaintiff's supported motion for summary judgment.

I. Since the notes and mortgages here were admittedly given for an antecedent obligation, want of or failure of consideration is not a defense. Bjornsen...