141 Iowa 738 | Iowa | 1908
On the former appeal the district court’s rulings on all the exceptions to the report of the referee, save on these to the eleventh finding, were approved. 132 Iowa, 370. This finding was: “That since the date of said settlement, to wit, on or about the 30th of April, 1894, there was a running account between plaintiff and defendant Richardson up to October 30, 1898, and there is due Richardson on said account $213.82,. as shown by plaintiff’s Exhibit 75.” It appeared that during this interval plaintiff had received and collected on notes belonging to defendant, held as collateral security, the sum of $4,661.84. This was unaccounted for save by Exhibit 75, which, as a mere copy of the bank ledger, was denounced by this court as incompetent evidence, and the cause “remanded to the district court for proceeding not inconsistent with” the opinion. A petition for rehearing was “overruled without prejudice to the right of the appellee to make application in the district court for permission to introduce further evidence.” Procedendo issued, and- on February 1, 1907, plaintiff moved that the cause be reopened and leave be granted to introduce additional testimony. The above facts were recited and furtherance of justice stated as a ground for the relief prayed. The motion was supported by an affidavit to the effect that owing to certain in
The authority of this court in its discretion to remand for the introduction of additional testimony then can not be doubted. If endowed with such authority, it also might remand with direction to the District Court to receive such testimony, if so advised, and that is precisely what was done in this case. The proceedings in the District Court were not to be inconsistent with the opinion, and, by the ruling on the petition for rehearing, the decision of this court was not to prejudice an application for the introduction of other evidence. The effect of these orders was to leave the entire matter for the determination of the District Court.
Ordinarily, where an issue is to be retried, the practice is to refer the cause back to the referee. Here the court received the evidence and determined the issue. There was no error in this. The report of the referee is reviewable on exceptions filed. Section 3740, Code. In a law action sustaining the exceptions necessarily results in a new trial. Lyons v. Harris, 73 Iowa, 292. But equitable actions are under the control of the court, and it may make a new finding of fact or of conclusions of law and enter such a decree as the referee should have recommended in his report. McHenry v. Moore, 5 Cal. 90; Wentzville Tobacco Co. v. Walker, 123 Mo. 662 (27 S. W. 639); Calvert v. Nickles, 26 S. C. 304 (2 S. E. 116). In its discretion the court may recommit the cause to the referee, with instructions to receive additional evidence. Tharington v. Tharington, 99 N. C. 118 (5 S. E. 414); Lowndes v. Miller, 25 S. C. 119; Murphey v. Shepardson, 60 Wis. 412 (19 N. W. 356). Or the court may receive such additional evidence, pass on the issues, and enter decree. As the court must ultimately pass on the evidence, there is no reason for saying it may not retain the case for such procedure as may seem advisable.
The cause was originally heard on the issue of settlement pleaded in this reply. Evidence had been introduced by both parties bearing thereon. The assistant cashier of plaintiff had testified:
Exhibits E and F are notes executed to the Kossuth County State Bank by Mr. Bichardson. I wrote the papers up for him to sign. I met him on the street, and told him I noticed by the docket over here there were several judg*746 ments going of record against him, and be said, ‘Yes, he knew there was a few.’ He says, ‘I think I better give yon a mortgage on my land I have got in my name, so that yon will be ahead of them.’ I says: ‘All right, yon can. Yon have got it down to only $3,000, and you can give ns a mortgage there. Of course, the land is not worth that. You can give us a mortgage, and take up a lot of the old paper.’ lie says, ‘That is just what I want to do.’ Well, I told him then that, as the land would not be worth the mortgage, the $3,000 and the two small ones against it, that he must clear off the judgments. He said he would do this, so that we would be the second lien on the land, and so I drew this mortgage for him, and he signed it in the little old building he used to have up there, and Mrs. Richardson came there, and she signed it also, and Ed went up and took their acknowledgment some time after, and we were a few days fixing it up, and then he .came down. He says, ‘I want you to come with me to Gene Clarke’s office so he can’t kick and claim any.’ So I went with him and gave Gene orders that he need not turn any more money to us, to give it to Richardson, and in May he gave him the balance of the paper he had; but he came in afterwards and borrowed a small amount, and left a few notes there, and those were taken right up when he paid his notes. That was, I think there was no record or anything made of them. I ain’t sure, something like a week, or something like that, he wanted a little money. It was our last deal. He ain’t claimed anything or we ain’t. That was the settlement, we cleaned up that time, and we Avere to take the $3,000 mortgage. He was to pay the judgments off that was against him so as to leave us second lien on the land. The conversation was, simply we agreed that he should take all the notes, all collateral notes. He says, ‘I suppose you Avill give me all my old notes if I give you this mortgage,’ and I says, ‘Yes, sir; we will.’ I personally gave him all the notes we had in the bank, turned them over to him, and told him, ‘I have marked, them off the register.’
On the other hand, Richardson testified that, though the bank agreed to turn over to him $3,000 in collateral paper, it finally refused to do so, and never delivered to
The following are charged to Richardson in different parts of the books:
1894.
May 4. Rec’d mtg. $ .75
“ 7. Int.. 24.
“ 18. Int. 12.
June 18. Int. 20.
“ 30. 8105 pd.... 600.
Aug. 8. Int.'.. 15.
24.
“ 15. Int. 45.55
Sept. 27. Int.. 2Q.
*750 1894.
Nov. 8. cq a M
“ 19. cq t-i "S M
1895.
’94. . 20. Jan. 5.
’94. Coupon. . 35. “ 7.
Int. . 24. Neb. 7.
Int. . 20. Mar. 9.
Int. 24. May 7.
. 25. “ 27.
Note pd. 1,000. June 10.
. 24. Aug. 8.
Int. . 32. Sept. 21.
Note and Int. . 603.20 Nov. 6.
Int.. . 24. “ 12.
1896.
24. May 8. Int..
22. July 20. Atty. fees .
393.30 “ 22. 8190 pd.
24. Aug. 10. Int..
30. “ 29. Atty. fees.
24. Nov. 10. ’ Int....
1897.
Neb. 8. Int..... b©
May 5. Int. b©
1898.
1,200. May 2. Note pd. ..
71.20 Int.■.
.60 Sept. 9. 1898. Recording mtg.
It will be observed that the book entries are not sufficiently explicit to indicate 'what the items are, or that they are correct charges against the defendant; but the cashier of the bank testified that, under the system of bookkeeping .followed by the bank, where figures merely were entered, these indicated the payment of cash on defendant’s checks.
June 30, 1894. 8105 pd. $ 600.
Nov. 6, 1895. Note and Int. 603.20
May 2, 1898. Note paid. 1,200.
Int. 71.20
—^with no other evidence, save that these entries, meant notes paid, and of the date of each, will warrant the entry of a judgment thereon in its favor.
Our conclusion is that the court should have rejected the charges as indicated above, and credited plaintiff with the remaining items only. The result, as is always the case when the character of the evidence suggests but falls short of proof, is not entirely satisfactory; but plaintiff, after having been afforded a second opportunity to account for money collected on notes held by it as collateral security, has failed in large part to do so. Decree may be entered in this court, or the cause may be remanded to the District Court for that purpose. — Modified, and affirmed.