Richardson v. Neppl

• Decision Date: 15 December 1970
• Docket Number: No. 54000,54000
• Citation: 182 N.W.2d 384
• Parties: Tedd F. RICHARDSON, d/b/a Stockman's Cattle Company, Appellant, v. Clarence A. NEPPL and Madonna M. Neppl, Harold Stender, Burdell Jensen, Manning Trust & Savings Bank of Manning, Iowa, and Farmers State Bank of Schleswig, Iowa, Appellees, v. Harold STENDER and Burdell Jensen, Cross-Petitioners-Appellees, v. DUNLAP LIVESTOCK AUCTION, INC., Defendant to Cross-Petitioner-Appellee-Cross-Appellant.
• Court: Iowa Supreme Court

Page 384

182 N.W.2d 384

Tedd F. RICHARDSON, d/b/a Stockman's Cattle Company, Appellant, v. Clarence A. NEPPL and Madonna M. Neppl, Harold Stender, Burdell Jensen, Manning Trust & Savings Bank of Manning, Iowa, and Farmers State Bank of Schleswig, Iowa, Appellees, v. Harold STENDER and Burdell Jensen, Cross-Petitioners-Appellees, v. DUNLAP LIVESTOCK AUCTION, INC., Defendant to Cross-Petitioner-Appellee-Cross-Appellant.

No. 54000.

Supreme Court of Iowa.

Dec. 15, 1970.

Raun, Franck & Mundt, Denison, for appellant.

Reimer & Vipond, Denison, for Harold Stender, Burdell Jensen, Farmers State Bank of Schleswig, and Dunlap Livestock Auction, Inc., appellees and cross-appellants.

Claus Bunz, Manning, for appellee Manning Trust & Savings Bank of Manning.

REES, Justice.

Action in equity to foreclose a chattel mortgage covering cattle. Defendants Neppl were purchasers and mortgagors; plaintiff, the mortgagee. Defendants Stender and Jensen had each purchased certain of the cattle, and Manning Trust & Savings Bank was mortgagee of cattle bought by Stender. Defendant Farmers State Bank of Schleswig is not a party to the appeal. Defendants Jensen and Stender cross-petitioned against Dunlap Livestock Auction, Inc., which had sold the cattle consigned to it by Neppl, alleging Dunlap was liable to them under an implied warranty of title, if Stender and Jensen were held liable to plaintiff, and by answer Dunlap admitted it would be liable to Stender and Jensen for any loss to them as result of plaintiff's action. Neppls defaulted and judgment was rendered against them.

Trial court found plaintiff had consented to the sale of the cattle by the mortgagor Neppl and had thereby waived his lien and was entitled to foreclose only as to the mortgagors, and rendered judgment only as to Dunlap Auction, who thereupon filed its motion for new trial. The Auction's motion for new trial was later sustained. Plaintiff has appealed from the granting of new trial, and defendant Auction has cross-appealed. Defendants Stender and Jensen have moved to dismiss the appeal on grounds the appeal as to them was not timely perfected. We sustain the motions of defendants Stender and Jensen to dismiss the appeal as to them and affirm the trial court in its grant of a new trial.

Because of the multiplicity of issues to be considered on appeal, we deem it advisable to give a detailed recital of the posttrial motions, findings, decrees and orders. Following the trial, plaintiff moved to reopen the case, or in the alternative, for permission to amend the pleadings to conform to proof. The motion to amend alleged that defendant Auction had knowledge of plaintiff's lien on the cattle, and that Dunlap's action in taking the cattle constituted a conversion of the same. In his motion to amend, the plaintiff demanded judgment against defendant Auction for wrongful appropriation and conversion of the mortgaged cattle. The motion of the plaintiff was resisted by the Auction, in which the Auction claimed plaintiff had never asserted a cause of action against it, and that it had received no notice of a cause of action for conversion. Defendant Auction also argues that it had tried the case as an equitable action for foreclosure of a chattel mortgage and had had no opportunity to advance any defense to an action for conversion.

On December 3, 1968, the court made extensive findings, of fact and stated its conclusions of law, in which it found plaintiff had consented to the sale of the mortgaged cattle by the purchasers Neppl, and also found plaintiff should be entitled to recover from the Auction company because it was not an innocent purchaser from Neppl, and had accepted the husiness risk of dealing in mortgaged cattle. The court indicated its decision to hold for plaintiff against the Auction company was motivated in part by the fact the Auction company had admitted its liability on the cross-petition had the plaintiff recovered against the defendants Stender and Jensen.

The court found plaintiff had a right in the cattle under its mortgage superior and prior to the Auction, and that the defendants Stender and Jensen and their respective banks and their interests in the cattle were prior and superior to the interests of the plaintiff. As we have observed above, the defendants Neppl had suffered default judgment to be entered against them, and did not participate in the trial of the action.

After the findings of fact and conclusions of law were announced, the court delayed the effective date of its rulings for ten days to permit the filing of motions for additional findings of fact or conclusions of law, and on December 12, 1968, defendant Auction company so moved, alleging among other things that no cause of action had been asserted or pleaded as against it by the plaintiff in an action for conversion.

The decree of the court was entered on December 26, 1968, in which the court recognized plaintiff's default judgment against Neppls, and decreed that plaintiff should be entitled to recover against Dunlap Livestock Auction, Inc., and further embraced in its decree by reference the same finding with respect to the priorities in favor of the defendants Stender and Jensen as had been incorporated in the findings of fact and conclusions of law theretofore filed.

Defendant Dunlap, on December 31, 1968, filed its motion for judgment notwithstanding the findings of fact requesting the court to enlarge upon, amend and extend its findings of fact, and to vacate the decree, and for a new trial. All of the motions of the defendant Dunlap were based on essentially the same grounds, asserting plaintiff's petition did not allege a cause of action for conversion nor any other cause of action against the Auction company. We note the grounds in defendants' motion to vacate the decree and for a new trial attacked Only those provisions of the decree of December 26, 1968, which provides for judgment in favor of the plaintiff and against the Auction company.

On March 20, 1969, the trial court ruled on the various post-trial motions, overruling the Auction's motions to amend findings of fact and conclusions of law, and for judgment notwithstanding the verdict. The court then considered the entire issue of plaintiff's application to amend the pleadings to state a cause of action against the Auction company for conversion, and the defendant Auction's motion to vacate and for a new trial. The court, in its ruling, held the pleadings did not support a judgment for plaintiff against defendant Auction company as previously entered, and granted a new trial as between plaintiff and Dunlap Livestock Auction, Inc. All paragraphs of the motion to vacate and for a new trial were sustained. Plaintiff's motion to amend the pleadings to state a cause of action against defendant Auction for conversion was likewise sustained. Plaintiff filed a notice of appeal on April 7, 1969, which notice indicated that appeal was taken from the ruling entered in the case on March 20, 1969, sustaining the motion for a new trial and From each and every ruling adverse to the plaintiff during the progress of the case. On April 17, 1969, defendant Dunlap cross-appealed from the adverse rulings entered against it on March 20, 1969, specifying the court's failure to sustain motions Filed December 31, 1968, for judgment notwithstanding the court's findings, to enlarge findings of fact and extend conclusions of law, and the ruling sustaining plaintiff's motion for leave to amend the pleadings.

We have before us the motion of defendants Stender and Jensen to dismiss plaintiff's appeal as to them. Said defendants allege the December 26, 1968, decree or judgment in their favor and against the plaintiff on the foreclosure issue is a final and unchallenged judgment. They point out that a new trial was granted Only as to all issues between the plaintiff and the Auction company. They also urge plaintiff's notice of appeal does not specify that appeal is taken from the decree of December 26, 1968, and that the notice is therefore insufficient to constitute an appeal from that decree.

In his resistance to the motion to dismiss the appeal, plaintiff argues that although Stender and Jensen are not parties to the motions of Dunlap Livestock Auction, Inc., they are substantially affected by those motions and the rulings thereon. Plaintiff further argues the notice is sufficient to sustain an appeal from the December 26, 1968, decree because of the fact the court in its march 20, 1969, ruling on the motion for new trial made reference to the claim of the plaintiff thea he should be permitted to attempt to reverse the ruling made insofar as it did not allow recovery against the purchasers of the cattle, making a new trial between plaintiff and the Auction company moot. We take note of the following language in the March 20, 1969, ruling by the trial court, 'The court believes the motion for new trial should be granted, but it should be provided that the trial not take place until appeals have been exhausted upon the ruling heretofore filed.'

I. In his brief and argument and reply brief, plaintiff asserts the trial court erred in finding that under the facts of the case plaintiff had effectively waived his security rights under the chattel mortgage relating to the cattle purchased by defendants Stender and Jensen. Plaintiff also argues in his reply brief that his main brief is in substantial compliance with the requirements of rule 344, Rules of Civil Procedure.

Defendants Stander and Jensen assert the mortgage waiver issue and contend the court's decision should be affirmed. In the same brief, defendant Auction company asserts the entry of judgment in favor of plaintiff and against the Auction company was contrary to law, and therefore the trial court's ruling of March 20, 1968, granting a new trial should be affirmed.

II. The principal, and as we view the case, the dispositive issue in the appeal is whether the ...