Wenzlaff v. Tripp State Bank

• Decision Date: 15 October 1929
• Docket Number: No. 6645.,6645.
• Citation: 55 S.D. 626,227 N.W. 79
• Parties: WENZLAFF v. TRIPP STATE BANK et al.
• Court: South Dakota Supreme Court

55 S.D. 626

227 N.W. 79

WENZLAFF

v.TRIPP STATE BANK et al.

No. 6645.

Supreme Court of South Dakota.

Oct. 15, 1929.

Appeal from Circuit Court, Hutchinson County; R. B. Tripp, Presiding Judge.

Action by Sallie Edith Wenzlaff against the Tripp State Bank and another. From the judgment, defendants appeal. Affirmed.Hitchcock & Sickel, of Mitchell, for appellants.

Orvis & French, of Yankton, for respondent.

BURCH, J.

On the 15th of October, 1923, the trial court entered a judgment in favor of plaintiff in this action foreclosing a mortgage of $17,500 on the bank building and lots occupied by defendant Tripp State Bank. Defendants appealed to this court from that judgment, and the judgment was reversed (see 50 S. D. 6, 208 N. W. 222) on the ground of fraud, and appellants' prayer for a cancellation of the mortgage because of the fraud was granted, and the trial court directed to cancel the mortgage. A rehearing was granted, and, on the rehearing (see 51 S. D. 447, 214 N. W. 844, 845), the judgment of this court was modified. This court being of the opinion that, although the mortgage was fraudulently obtained and a rescission and cancellation should therefore be allowed, equity required as a condition of the cancellation that plaintiff should have a return of the Goldhammer mortgage, given as a part of the consideration for the mortgage in suit. Because the Goldhammer mortgage could not be returned, this court allowed a rescission and cancellation in part only, and allowed a recovery to plaintiff in an amount equal to the value of the Goldhammer mortgage as a necessary step in the rescission prayed for by defendants. The rehearing therefore resulted in a final judgment of this court in the following language:

“The directions to the trial court in our former opinion are withdrawn, and the judgment and order appealed from are modified with direction to the trial court to find the value of the Goldhammer mortgage and enter judgment of foreclosure for that amount, with interest and costs, to find against plaintiff as to the balance of the debt sought to be recovered, and to decree that upon the payment of such judgment the mortgage shall be fully paid and satisfied. Costs to be taxed in this court in favor of defendants and appellants.”

On receipt of the remittitur from this court, the trial court thereupon, with due notice to all parties, received evidence as to the value of the Goldhammer mortgage, without otherwise trying the case, and rendered judgment according to the mandate. From that judgment defendants appeal.

[1] Appellants complain because the trial court did not treat the action of this court as a reversal and direction to retry the case, instead of confining the evidence to the value of the Goldhammer mortgage as the trial judge construed the mandate required him to do. In Schnepper v. Whiting, 18 S. D. 38, 99 N. W. 84, this court held that, where the mandate merely orders a reversal of a judgment without any other direction, it is the duty of the lower court to retry the action. The language of the mandate therein construed read, “and the case is remanded for further proceedings consistent herewith.” In the case of Butler Bros. v. Mason et al., 52 S. D. 349, 217 N. W. 510, this court had occasion to again express its...