Van Abel v. Wemmering

GATES, J.

In a cause of the same title this court, in an opinion appearing in 33 S. D. 544, 146 N. W. 697 , 'held that the giving of a mortgage upon the property by the vendor after the time fixed for the performance of the contract of purchase and sale deprived the vendor of his remedy of specific performance of the contract. The amended complaint in that action contained two causes of action — one for the reformation of the contract by changing the township number in the description of the land from 113 to 112; the other for a specific performance of the reformed contract. This court in concluding its opinion said:

“No opinion is herein expressed as to the legal rights of the parties in relation to said contract. The views herein expressed relate solely to the right and remedy of specific performance as applied to the particular circumstances of this case.

“The judgment and order appealed from are reversed, and the cause remanded, with directions to enter judgment on the findings in favor of defendant.”

The remittitur in that cause was filed in the trial court on May 14, 1914. On May 23, 1914, the plaintiff brought an action for damages for breach of contract. The case was tried by the court together with a jury, and the plaintiff was awarded damages in the sum of $3,168.14. From the judgment and order denying a new trial, defendant appeals.

[1] In conformity with the opinion it would have been proper for this court in its former judgment to have directed the trial court to enter judgment sustaining that part of the findings' of fact and conclusions of law which related to the reformation of the contract, and for a decree of reformation, but dismissing the cause of action which asked for specific performance of the contract. Doubtless this court would have directed the entry of such judgment had respondent within the 30-day period after decision made application for such relief. But what did this court direct? It directed the entry of judgment upon the findings in favor of defendant. Such judgment to be entered could only be a judgment of dismissal of the whole action, embracing as well the cause of action for the reformation of the contract as the *35 cause of action for specific performance. So that, if a- judgment in the trial court had been entered pursuant to the remittitur, the contract would have stood unreformed. To entitle the plaintiff to recover damages for its breach, he would have been obliged to have the contract reformed. Castle v. Gleason, 31 S. D. 590, 141 N. W. 516 ; Id., 35 S. D. 98, 150 N. W. 895 .

[2] Hut, so far as appears from the record, the trial 'court did not enter any judgment upon the remittitur. So that, so- far as. appears, there was no judgment whatever in the former case at the time of the trial of this case, because the former judgment of the trial court had been vacated by the judgment of' this court. It is perfectly apparent that findings of fact in a cause wherein the judgment has been vacated and ím new judgment entered have no more force as res judicata than if no judgment had ever been entered in the first place. If this court had simply reversed the judgment without directions, it is clear that not only the judgment of the trial court would have been vacated, but the findings of fact and conclusions of law as well, and that the case would then have stood in the same position as it did before the trial. Schnepper v. Whiting, 18 S. D. 40, 99 N. W. 85 ; Steere v. Gingery, 24 S. D. 423, 428, 123 N. W. 863 . Clearly in such case the findings, conclusions, and judgment would not have been admissible upon another trial to prove the facts necessary to be proved in the subsequent trial. Can it rationally be claimed that when the court goes further, and, in addition to reversing the judgment, directs the entry in the trial court of a judgment dismissing the action, such decision and direction leave the case in the position it was after the trial and before the appeal was taken? It would seem to us,that a mere statement of the question shows the absurdity of the contention. The -trial court not only admitted in evidence certain of the findings of fact and conclusions of law in the former case to establish certain facts necessary to be proved in the present case, but it received in evidence and gave force to the former judgment of the trial court, which had been vacated. These’ were barren of evidentiary force, and without them the evidence was insufficient to sustain the verdict. Moreover, the trial court considered the matters embraced in the former findings as res judicata, and took from the jury the consideration of all questions, save only the amount of *36 plaintiff’s damage. This was clearly error, because the parties were entitled to have all of the evidence passed upon by the jury.

The judgment and order appealed from are reversed, and •the cause remanded for a new trial.

Upon the hearing of this cause there was also presented and argued a motion to- strike from appellant’s brief certain- portions as surplusage. This motion is now referred to the clerk of this court for determination, upon the papers heretofore presented, in connection with the taxation of costs, subject, however, to review by this court.