FARMERS COOP. ELEVATOR, CO., PANORA v. Knapp

259 N.W.2d 762

• Court: Supreme Court of Iowa
• Decided: November 23, 1977
• Docket: 59805, 59690
• Status: Published

Opinions

UHLENHGPP, Justice.

Defendants Walter and Barbara Knapp delivered to plaintiff Farmers Cooperative Elevator Company their note on which $9613.48 principal was unpaid at the time the Company instituted suit on the note. Knapps answered in the suit averring inter alia that the Company owed them patronage dividends. Knapps also interposed a counterclaim in several divisions. In division I they alleged that when they delivered the note in suit the Company failed to furnish them a copy of it or a disclosure statement, contrary to federal statute and regulation. They prayed for $1000 damages pursuant to 15 U.S.C. § 1640. In division II they alleged that the Company failed to disclose the annual percentage rate on the note, contrary to federal law, wherefore they prayed $1000 damages. Divisions III and IV each contained a similar prayer based on other claimed infractions of federal law in connection with the note. In division V Knapps alleged misuse of process by the Company’s suing on the note when the Company owed Knapps for patronage dividends, and Knapps asked $23,000 damages for that claimed tort.

The Company moved for summary judgment on its petition, and Knapps resisted. The trial court sustained the motion and entered' judgment including the following:

IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED by the Court as follows:

1. That Plaintiff have and recover judgment against the Defendant in the sum of $9,613.48 with interest thereon of $2.363971 per diem from and after September 26, 1975.

2. [Costs.]

3. That the rights of the Defendants as to their Counterclaim are in no way affected by this Judgment Entry.

Knapps appealed from that ruling. That is appeal No. 59690.

The Company thereafter moved to dismiss Knapps’ counterclaim, and the trial court sustained the motion. Knapps then appealed from that ruling. That is appeal No. 59805.

I. Summary Judgment on Petition. We do not have jurisdiction in the first appeal. The divisions of the counterclaim were compulsory counterclaims since they grew out of “the transaction or occurrence that is the basis of the opposing party’s claim . . . Rule 29, Rules of Civil Procedure. The case falls squarely under Mid-Continent Refrigerator Co. v. Harris, 248 N.W.2d 145 (Iowa). There the plaintiff sued for the balance due on a refrigerator lease. The defendant counterclaimed on account of excess electricity the refrigerator used. The plaintiff moved for summary judgment, and the trial court sustained the motion for the balance of the lease payments and made this entry:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff * * * have judgment against defendant * * *. The Defendant’s counterclaim aforesaid is reserved for trial on the merits, unaffected by this judgment. Mid-Continent Refrigerator Co. v. Harris, supra, at 146.

The defendant attempted to appeal but we dismissed the appeal, holding that the counterclaim was compulsory and an appeal could not be taken without permission until disposition of the counterclaim. We stated at page 147, “We now hold the instantly involved fragmented adjudication was not a final judgment from which appeal as of right could be had.”

The Mid-Continent holding is not at odds with Farm Service Co. of Emmetsburg v. Askeland, 169 N.W.2d 559, 560 (Iowa). In the Farm Service case this court stated, “Here the counterclaim is permissive. It does not arise out of the same transaction.”

A court can sustain a motion for summary judgment on part of the issues or on part of the pleadings, under rule 237, R.C.P. Nonetheless we repeat what we stated in both the Mid-Continent and Farm Service cases: if a court sustains a plaintiff’s motion with reference to a petition leaving a counterclaim undisposed of, the court should use an appropriate procedural device to protect the defendant against execution until disposition of the counterclaim. Such devices include entering the ruling on the motion but withholding entry of the judgment itself, or ordering that execution not issue pending disposition of the counterclaim. Mid-Continent Refrigerator Co. v. Harris, supra, at 147; Farm Service Co. of Emmetsburg v. Askeland, supra, at 560; Anno. 8 A.L.R.3d 1361, 1364 (procedural devices). The same would be true in reverse, of course, if a defendant’s motion for summary judgment on his counterclaim is sustained and the issues are reserved arising from the plaintiff’s petition.

In the present case as in Mid-Continent the judgment on the petition was interlocutory because the counterclaim was compulsory, so that the appeal in No. 59690 must be dismissed.

II. Order Dismissing Counterclaim. Knapps narrow their appeal from the order dismissing their counterclaim to one division: their claim of abuse of process. On that claim we conclude that the result is controlled by the decision relied on by the Compariy in support of its motion to dismiss, Aalfs v. Aalfs, 246 Iowa 158, 66 N.W.2d 121. The trial court did not err in dismissing the abuse of process claim.

NO. 59690 DISMISSED, NO. 59805 AFFIRMED.

All Justices concur except MOORE, C. J., and MASON, REES and REYNOLDSON, JJ., who dissent.