Walsh Const. Co. v. United States Guarantee Co., 10082.

• Decision Date: 12 March 1935
• Docket Number: No. 10082.,10082.
• Citation: 76 F.2d 240
• Parties: WALSH CONST. CO. v. UNITED STATES GUARANTEE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F.2d 240 (1935)

WALSH CONST. CO. v. UNITED STATES GUARANTEE CO.^*

No. 10082.

Circuit Court of Appeals, Eighth Circuit.

March 12, 1935.

Edmond M. Cook, of Davenport, Iowa (Reuel B. Cook and Walter M. Balluff, both of Davenport, Iowa, on the brief), for appellant.

Frederic M. Miller, of Des Moines, Iowa (Jesse A. Miller, of Des Moines, Iowa, and W. M. Chamberlin, of Davenport, Iowa, on the brief), for appellee.

Before WOODROUGH and FARIS, Circuit Judges, and DONOHOE, District Judge.

FARIS, Circuit Judge.

Heretofore, the appellant, as plaintiff therein, sued defendant at law on a bond which guaranteed payment of money deposited by appellant in the American Commercial & Savings Bank, of Davenport, Iowa, which had failed, owing appellant a large sum, held in a savings account. In that suit, which we shall call the first suit, appellant had judgment for the full amount of the bond, plus interest and costs. This first suit was tried to a jury; but, at the close of the trial, both parties moved the court for a directed verdict. Thereupon the jury was discharged, and considering, of course, only the law of the case on facts not disputed, the trial court entered judgment for appellant.

Appellee in the case at bar, who was appellant in the first suit, brought that case here, wherein it was reversed. In reversing it this court held that, since the bond of appellee herein did not cover a savings account, and since the money of appellant was wholly in such an account, at the time the bank failed, appellee was not liable on its bond. Thereafter appellant filed its motion in this court for a rehearing, praying in the alternative, among other relief, that this court modify its opinion and judgment, by remanding the case to the trial court, so that an amended petition, sounding in equity for a reformation and money judgment, could be filed by appellant herein. This motion for a rehearing, or to modify and remand, was denied by this court on December 12, 1933, and at the November term, 1933, at St. Louis, which term has long since ended.

In this situation of the case and the record, when the case got back on mandate to the District Court, appellant asked leave in that court to amend its original petition, so as to state a cause or action in equity for reformation of the bond sued on. Leave to amend at first was granted; but later, on motion of the appellee herein, the amendment was stricken out of the petition and judgment was rendered for the appellee, following, as the trial judge deemed, the opinion and mandate of this court on the former appeal.

The sole question is, Was the case, upon the undisputed record, so far finally disposed of by the opinion, judgment, and mandate on the first appeal, that no further proceedings in the trial court were warranted.

It must, of course, be borne in mind that on the first trial below, at the close of the evidence, both plaintiff and defendant therein asked the trial court for a directed verdict. It is a settled rule in the federal courts that "where both parties request a peremptory instruction and do nothing more they thereby assume the facts to be undisputed." Williams v. Vreeland, 250 U. S. 295, 39 S. Ct. 438, 439, 63 L. Ed. 989, 3 A. L. R. 1038; Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654. Other considerations may modify the rule, but these are not present here. Moreover, counsel for appellant, in the motion for a directed verdict, categorically stated "there is no disputed fact under this record." So, if the law did not settle this question, the admission of counsel does settle it. Therefore, since no fact was in dispute on the former appeal, no necessity existed to send the case back to be retried on questions of law which this court had the undoubted right finally to determine for itself, and, applying the law to such facts, to render final judgment. Forged Steel Wheel Co. v. Lewellyn, 251 U. S. 511, 40 S. Ct. 285, 64 L. Ed. 380. This was done by this court, as is shown by the concluding language of the opinion, which reads thus: "There are many other assignments of error, but as the bond does not cover the funds lost, there can be no recovery, and the judgment appealed from should be reversed." United States Guarantee Co. v. Walsh Construction Co. (C. C. A.) 67 F.(2d) 679, 681. Carrying out the opinion of this court the judgment and mandate, so far as pertinent, say: "It is now here ordered and adjudged by this court, that the judgment of the said district court, in this cause, be and the same is hereby reversed with costs, and that the United States Guarantee Company have and recover against the Walsh Construction Company the sum of $404.30 for its costs in this behalf expended and have execution therefor. * * * You therefore are hereby commanded that such execution and proceedings be had in said cause, in conformity with the opinion and judgment of this court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding."

From the language quoted above from the opinion, judgment, and mandate, it seems clear that what this court intended to do was to reverse the case outright and finally to put an end to it, and the language employed was meet for that purpose. If this court had said in its former opinion 67 F.(2d) 679 in the case that it was "reversed and remanded for a new trial," or "reversed and remanded for further proceedings," or "reversed to the end that repleader could be had, if counsel were so advised," it might well be contended that the plain letter of the opinion, judgment, and mandate permitted a hearing de novo; but that is neither the case nor the language used. For this court plainly said: "The bond does not cover the funds lost, there can be no recovery, and the judgment appealed from should be reversed." The judgment and mandate of this court ordered execution to issue, thus again indicating that the case was at an end. It will be found quite uniformly to be the rule that, when an appellate court, finding under the law that no recovery can be had, uses the word "reversed" without more, this means that the case is at an end. Donnell v. Wright, 199 Mo. 304, 97 S. W. 928. Obviously, this case was, upon the pleadings and evidence as they then stood, utterly at an end, when it was reversed, and when the motion for a rehearing had been overruled. The case of Donnell v. Wright, supra, is as to the controlling facts and the principles announced precisely similar to the case at bar.

This motion for a rehearing, it will be kept in mind, asked as an alternative that, if no rehearing should be granted, "the order of reversal should be modified, so that it transfers this case to equity, and directs that the parties be granted leave to amend their pleadings." When this motion for a rehearing or to modify the opinion came up in this court, the entire record was before the court, as it now again is before us, perforce judicial notice. It there appeared that estoppel had been set up by the replication of plaintiff, and over objections by defendant the testimony of the agent who procured the bond, as also letters, evidencing negotiations antecedent to the issuance of the bond, were offered. By large inference, all of the evidence which might bear upon the right of reformation was then presented. Yet this court was not, on the former appeal, moved by that evidence to consider the request to modify its...