Ronna v. Am. State Bank of Walnut

• Decision Date: 14 February 1933
• Docket Number: No. 40217.,40217.
• Citation: 215 Iowa 806,246 N.W. 798
• Parties: RONNA v. AMERICAN STATE BANK OF WALNUT ET AL.
• Court: Iowa Supreme Court

215 Iowa 806

246 N.W. 798

RONNA

v.AMERICAN STATE BANK OF WALNUT ET AL.

No. 40217.

Supreme Court of Iowa.

Feb. 14, 1933.

Appeal from District Court, Pottawattamie County; H. J. Mantz, Judge.

This is an application for an order from the Supreme Court directing the district court of Pottawattamie County, Iowa, and the Honorable H. J. Mantz, Judge thereof, to obey a procedendo issued from this court after reversal on appeal, and enter a decree in conformity therewith.

After the case of Otto Ronna, Administrator of the George Bohnk Estate, Plaintiff-Appellee, v. American State Bank of Walnut Iowa, and Walnut State Bank of Walnut, Iowa, Defendants-Appellants, was reversed on appeal (213 Iowa, 855, 236 N. W. 68), and remanded to the Pottawattamie county district court, that tribunal, the Honorable H. J. Mantz presiding, refused to dismiss the plaintiff's petition, but, regardless of the reversal, entered judgment against the defendants American State Bank of Walnut, and the Walnut State Bank of Walnut. Accordingly, the defendants applied to this court for an order directing the district court to enter judgment in accordance with the mandate of this court.

Therefore, this court issues said order.

EVANS and UTTERBACK, JJ., dissenting.Wright & Baldwin, George S. Wright, Addison G. Kistle, and Paul E. Roadifer, all of Council Bluffs, for appellants American State Bank of Walnut and Walnut State Bank of Walnut.

Turner & Turner, of Avoca, and Herminghausen & Herminghausen, of Ft. Madison, for Otto Ronna, administrator of estate of George Bohnk, deceased.

KINDIG, Chief Justice.

The American State Bank operated as a banking institution at Walnut, Iowa, until it became insolvent and the state superintendent of banking took charge thereof on May 23, 1922. While the American State Bank was a going concern, George Bohnk, on February 20, 1922, borrowed from it the sum of $3,061.83. To evidence this indebtedness, George Bohnk executed his promissory note payable to the American State Bank, and secured the same by giving a chattel mortgage and assigning a $10,000 life insurance policy. Before the debt was paid, George Bohnk died on September 24, 1922. He was unmarried and left no children. His mother also was dead. Consequently his only heir at law was his father, Hans F. Bohnk.

Following the death of George Bohnk, Otto Ronna was appointed the administrator of his estate. The loan above named came due, and the American State Bank sold the property covered by the chattel mortgage and applied the same on the indebtedness. These proceeds, however, did not satisfy the debt, and a balance remained which was paid from the money collected on the $10,000 life insurance policy. After subtracting the necessary moneys to pay the obligation to the American State Bank, there remained of the life insurance proceeds $8,927.08.

While the affairs of the American State Bank were being administered under the receivership proceedings aforesaid, a new bank was organized, known as the Walnut State Bank. Under written agreement with the receiver of the American State Bank, the new bank assumed the deposits of the American State Bank shown upon the books thereof to the extent of 45 per cent. This 45 per cent. thus assumed under the agreement was to be paid to the respective depositors of the American State Bank upon their execution of a waiver relinquishing their right to the remaining 55 per cent. of their deposits.

On September 18, 1926, Otto Ronna, as administrator of the George Bohnk estate, commenced an action against the American State Bank and the Walnut State Bank to recover: First, $170, being the balance due on a checking account; second, the $10,000 proceeds of the life insurance policy; and, third, $2,015.14, alleged to be the proceeds of the personal property sold by the bank. That suit ignored the contract above named under which the Walnut State Bank assumed 45 per cent. of the debts owed by the American State Bank.

The district court in said cause allowed the administrator $13,033.70. An appeal was thereupon taken to this court by the American State Bank of Walnut, and the Walnut State Bank. See Ronna v. American State Bank, 213 Iowa, 855, 236 N. W. 68. Upon that appeal this court reversed the judgment of the district court. A petition for rehearing was then filed by the administrator, which was overruled by this court. Also a motion for judgment was filed by the administrator, and this court overruled the same. Then the cause was remanded by procedendo to the district court, with directions to that tribunal to take “further proceedings * * * not inconsistent with the opinion of the Supreme Court.” When the cause reached the district court, however, the administrator together with Hans F. Bohnk filed a motion in the district court for a judgment on the record. This motion was resisted by the American State Bank and the Walnut State Bank on the theory that the trial court had jurisdiction to do nothing except dismiss the administrator's petition filed in Otto Ronna, Administrator, v. American State Bank (213 Iowa, 855, 236 N. W. 68), supra.

On the hearing under the motion, the administrator and Hans F. Bohnk introduced the entire record in the original case which was appealed, and the banks offered in evidence the administrator's motion for judgment in the Supreme Court, the motion to strike the same, filed by both banks, and the ruling of the Supreme Court thereon. The district court sustained the administrator's motion and entered judgment against the American State Bank and the Walnut State Bank for $6,540.16, made up as follows:

1. The checking account of the administrator, $170.86.

2. Interest thereon from September 18, 1926, to date of judgment, $62.56.

3. Forty-five per cent. of George Bohnk's insurance, $4,017.19.

4. Interest thereon at 5 per cent. for three years, $602.57.

5. Additional interest, $1,686.98.

Following this action of the district court, the American State Bank and the Walnut State Bank applied to this court for an order requiring the trial court to dismiss the administrator's petition in the original case of Ronna v. American State Bank (213 Iowa, 855, 236 N. W. 68), supra, in accordance with the reversal thereof and the remand of the cause under procedendo. A stay order was issued by a judge of this court to maintain the status quo until the application for the new mandate is passed upon by this court.

It is argued by the administrator and Hans F. Bohnk that this court has no jurisdiction to issue the mandatory order required by the two banks, because a judgment has been entered in the district court. This judgment was thus entered, the administrator and Hans F. Bohnk argue, under a discretion which the trial court had to proceed with the case after the reversal and remand of the original cause. Consequently the administrator and Hans F. Bohnk conclude that the only remedy available to the banks under the circumstances is an appeal from the second judgment.

I. For convenience in discussion, consideration will first be given to the question involved as it relates to the administrator alone.

Undoubtedly the two banks could have appealed from the judgment entered after reversal and remand had they so desired. See Code, § 12823 (1931 Code). But because of that, it does not necessarily follow that the banks could not, in lieu of appealing, successfully apply for a mandatory order of this court requiring the district court to comply with the procedendo of this court. As to whether or not the banks can thus apply, depends upon the facts and circumstances involved in the case. If the procedendo issued in Ronna v. American State Bank (213 Iowa, 855, 236 N. W. 68), supra, under the circumstances gave the trial court discretion not to dismiss the administrator's petition, but to proceed farther in the original case, then the banks would not be entitled to the mandatory order. On the other hand, if the procedendo allowed the district court no discretion to proceed farther with the original case, but required it to dismiss the administrator's petition therein filed, then the banks are entitled to the mandatory order which they now seek.

[1] A procedendo ordered by the court according to the particular case may direct the district court to do only a special thing after remand or such mandate may, in harmony with the case, permit the trial court to exercise discretion, within proper limitations, to proceed further with the cause after remand. Section 12871 of the 1931 Code provides: “* * * The court may reverse, modify, or affirm the judgment, decree, or order appealed from, or render such as the inferior court should have done. No cause is decided until the written decision is filed with the clerk.” When the opinion of this court indicates that the cause is reversed and remanded for a special purpose, the district court, upon the remand, is limited to do the special thing authorized by this court in its opinion, and nothing else. Such special purpose may be indicated in the opinion of this court or in the procedendo ordered by the court. Whitmer v. Board of Independent School District of White Pigeon, 210 Iowa, 239, 230 N. W. 413;Pauly v. Montgomery, 209 Iowa, 699, 228 N. W. 648;Pace v. Mason, 206 Iowa, 794, 221 N. W. 455;Miller v. Perkins, 204 Iowa, 782, 216 N. W. 27; City of Charles City v. Ramsay, 199 Iowa, 722, 202 N. W. 499;Manchester v. Loomis, 197 Iowa, 1049, 195 N. W. 958, 198 N. W. 102;Haggerty et ux. v. Brower et al., 105 Iowa, 395, 75 N. W. 321;Board of Supervisors of Pottawattamie County v. Board of Supervisors of Harrison County (Iowa) 241 N. W. 14, local citation 26.

Again this court may reverse an equity cause without specifically directing the trial court, either in the opinion or in the procedendo, what to do upon remand. In such case, after the procedendo has been issued remanding the cause, the district court may, within proper limitations, proceed as it can in an equity suit between the...