Schroedl v. McTague

• Decision Date: 24 July 1969
• Docket Number: No. 53281,53281
• Citation: Schroedl v. McTague, 169 N.W.2d 860 (Iowa 1969)
• Parties: Tony SCHROEDL and Catherine Schroedl, Appellants, v. Leo V. McTAGUE and Frances McTague, Appellees.
• Court: Iowa Supreme Court

Page 860

169 N.W.2d 860

Tony SCHROEDL and Catherine Schroedl, Appellants, v. Leo V. McTAGUE and Frances McTague, Appellees.

No. 53281.

Supreme Court of Iowa.

July 24, 1969.

James Furey, Carroll, for appellants.

Allan F. Nash and Thomas R. Eller, Denison, for appellees.

MOORE, Justice.

This case involving action on a promissory note like 'Ol' man River' seems to 'just keep rollin' along'. It is now before us on a third appeal. In Schroedl v. McTague, 256 Iowa 772, 129 N.W.2d 19, filed June 9, 1964, we reversed and remanded the case where it appeared certain evidence of admissions on the question of revival of an otherwise barred debt, due to limitations, was rejected by the court. After stating the record was confusing and difficult to follow we held plaintiffs' evidence was sufficient to require submission of the case to a jury. In an effort to be helpful to the parties and trial court on retrial we discussed Code section 614.11 and stated several legal principles applicable to the pleaded issues.

In Schroedl v. McTague, 259 Iowa 627, 145 N.W.2d 48, filed September 20, 1966, we affirmed the trial court's order granting a new trial subsequent to a jury verdict for plaintiffs. We therein approved the trial court's denial of plaintiffs' motion for summary judgment, the overruling of plaintiffs' motion for directed verdict and established the applicability of several legal principles on retrial.

On the third trial the jury on June 26, 1967 returned a verdict for defendants. From judgment thereon plaintiffs have appealed. We affirm.

The evidence submitted was rather brief. It consisted of plaintiff Catherine Schroedl's testimony, the reading of the depositions and certain admissions of defendant Leo V. McTague and introduction of exhibits. The additional record and plaintiffs-appellants' briefs and arguments are prolix and difficult to follow as plaintiffs before, during and after the trial filed, submitted and argued numerous motions and applications.

Plaintiffs assign 26 errors including one which contains five subdivisions. They are argued under 13 divisions. Much repetition is found in plaintiffs' briefs. Without setting them out here we shall attempt to consider plaintiffs' many contentions.

On October 5, 1961 plaintiffs filed their petition seeking judgment on a promissory note alleged to have been executed by defendants on January 25, 1947. This one year note was in the principal sum of $10,000 with several years accrued interest. Defendants' answer, among other things, raised the statute of limitations, Code section 614.1(6). Plaintiffs' petition as amended alleged defendants had within ten years prior to the commencement of this action admitted in writing the indebtedness upon which the claim was based and that these admissions were by federal and state tax returns and other writings. They sought to avoid the statute of limitations under the provisions of Code section 614.11. Details of the claimed facts are set out in the prior opinions and will be referred to infra as plaintiffs' assigned errors are considered.

The trial court during the last trial stated to counsel he believed there was only one issue involved and in the jury instructions said: 'The due execution, consideration for, and the delivery, together with the ownership of the promissory note is not in dispute. The sole issue for your determination is whether under the evidence presented the cause of action was revived by an admission or admissions in writing signed by the defendants.' The parties made no objections to the court's statement of issues.

I. In division I of their brief plaintiffs assert the trial court erred in overruling their (1) motion for summary judgment, (2) motion for judgment on the pleadings, (3) motion for directed verdict and (4) contention the verdict was not sustained by the evidence.

Immediately before the third trial plaintiffs' counsel, after some discussion of a prior motion in limine, stated: 'The next thing I want to do is renew the motions I made prior to the last trial in August 1965. I am talking now about the motion for summary judgment and motion for judgment on the pleadings.'

The trial court then asked: 'Are you going to detail it?' Mr. Furey answered 'No.' He then renewed plaintiffs' motion for judgment on the pleadings. They had not been changed since the first trial.

Mr. Furey then stated: 'Comes now the plaintiffs and renew their motion for summary judgment as heretofore made in this cause. That is all I can say about that. I must refer to what I already have on file.'

In the second appeal we affirmed the trial court's overruling of plaintiffs' motion for judgment on the pleadings and for summary judgment. Plaintiffs, however, persist in their contentions and again assign the same two errors. In addition to the reasons stated in our second opinion the ruling of the trial court here was correct as our second opinion establishes the law of the case as regards these two motions. Plaintiffs asserted no new ground for either motion. They merely renewed motions which we had held not good.

It is the settled rule that the decision of this court upon a prior appeal becomes the law of the case and is to govern upon a subsequent trial thereof in the district court and upon another appeal unless the facts before the court upon the subsequent trial are materially different from those appearing upon the prior trial. Reich v. Miller, 260 Iowa 929, 938, 151 N.W.2d 605, 610; Iowa Development Co. v. Iowa State Hgwy. Comm., 255 Iowa 292, 299, 122 N.W.2d 323, 327, 328; Berger v. Amana Society, 253 Iowa 378, 382, 111 N.W.2d 753, 755; State v. Di Paglia, 248 Iowa 97, 99, 78 N.W.2d 472; Des Moines Bk. & Tr. Co. v. Iowa So. Util. Co., 245 Iowa 186, 189, 61 N.W.2d 724, 726; Lawson v. Fordyce, 237 Iowa 28, 32, 21 N.W.2d 69, 73 and citations. See also 'Law of the Case: Single-Suit Preclusion', Utah Law Review, 1967, pages 1--31, written by Professor Allan D. Vestal, University of Iowa.

II. In the second appeal we reviewed the evidence submitted by the parties and held it established a jury question. Our holding on that appeal constituted the law of the case on the questions of whether plaintiffs were entitled to a directed verdict and the evidence would sustain a verdict for defendants unless there has been a change of facts. Lawson v. Fordyce, supra; LaSell v. Tri-States Theatre Corp., 235 Iowa 492, 504, 505, 17 N.W.2d 89, 95; Swan v. Dailey-Luce Auto Co., 288 Iowa 880, 884, 293 N.W. 468, 469; Retherford v. Knights & Ladies, 183 Iowa 1099, 1100, 168 N.W. 89.

The record here is substantially the same as on the second trial. Plaintiffs were not entitled to a directed verdict. The evidence supports the verdict.

III. In division II of their brief plaintiffs assert the trial court erred in (1) excluding part of the 1962 deposition testimony of Mr. McTague, (2) overruling plaintiffs' motion to suppress questions and answers from McTague's June 14, 1967 deposition and admitting that deposition testimony, (3) excluding plaintiffs' exhibit J and (4) admitting evidence contrary to earlier ruling on plaintiffs' motion in limine.

Plaintiffs' counsel read into evidence portions of McTague's 1962 deposition. McTague therein identified Federal and Iowa income tax returns of himself and wife for 1952 through 1955. Each return contained a heading 'interest paid' and thereunder listed the names of various individuals followed by symbols indicating the amounts of money. Each list included 'Tony Schroedl, $400.00'.

In our prior opinion we said these entries established an admission which with reasonable certainty related to the debt in issue and held it was for the jury to say finally whether they did so relate. We said in our second opinion 'It seems that issue alone would require a decision by a fact finder'. (page 635, 259 Iowa, page 53, 145 N.W.2d). McTague's deposition testimony on the second trial and in the record here states the money listed as paid to Schroedl was 'dividends'.

After reading McTague's 1962 deposition testimony regarding names and amounts of interest paid to persons named in the particular schedule in the year for which the tax return was filed plaintiffs then attempted to read into evidence questions and answers concerning promissory notes signed by defendants to certain third parties not involved in the case at bar. The court sustained objections to evidence regarding these notes as irrelevant and immaterial to the issues being tried.

Evidence is relevant if there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case. In re Estate of Koch, 258 Iowa 1251, 1255, 142 N.W.2d 541, 544; In re Estate of Koch, 256 Iowa 396, 405, 127 N.W.2d 571, 576; State v. Slauson, 249 Iowa 755, 760, 88 N.W.2d 806, 809; Ipsen v. Ruess, 241 Iowa 730, 734, 41 N.W.2d 658, 661; Shapiro v. Klinker, 257 Wis. 622, 44 N.W.2d 622, 624. See also McCormick, Law of Evidence, sections 151, 152.

Each tax return was admitted as evidence. We find no real probative value in the offered evidence concerning promissory notes with third persons. The trial court's ruling was correct.

IV. Defendants took Mr. McTague's deposition June 14, 1967, the day before the latest trial began. His attention was called to the $400 entries in the tax returns and was asked:

'Q. Now can you tell me what that payment is? A. Those payments were dividends or earnings, I don't know how you would explain it, from the operation of the theater which was being operated by the family at Denison during those years.

'Q. Did Tony Schroedl have an interest in that operation? A. Yes.

'Q. What was the basis of his interest? A. The basis would be his $10,000.00 investment in the operation.'

Plaintiffs objected to this testimony at the time the deposition was taken, on a motion to suppress and when it was offered at trial. The many objections may be summarized as asserting...