Grudem Brothers Co. v. Great Western Piping Corp. , 297 Minn. 313 ( 1973 )

On Petition fob Rehearing

On December 28, 1973, the following opinion was filed:

Per Curiam.

Plaintiff requested a rehearing for the purpose of either determining the validity of certain setoffs of moneys paid by plaintiff on behalf of defendant as well as priorities of Federal tax and other liens, or amending the opinion so as to remand this matter to the district court for the purpose of making these determinations.

Since it is not for this court, which has only appellate jurisdiction, to make findings of fact, the petition is denied in so far as it requests this court to determine the validity of petitioner’s setoff claims.

We agree, however, with plaintiff’s contention that justice might not be served if the judgment rendered by the district court is allowed to be entered in accordance with the preceding opinion without opportunity for plaintiff to assert its equitable right of setoff.

Therefore, while we decline to grant a rehearing in this matter, we believe that in the interests of justice the opinion should be modified to provide for remand of the cause to the Hennepin County District Court with directions to stay the entry of judgment. The lower court should then determine whether the plaintiff’s claims against 'defendant are meritorious or frivolous. If the claims are found to be meritorious, the stay should be continued until such time as plaintiff has had reasonable opportunity to pursue its claims to a judgment.

Such a judgment may then be set off in equity against the judgment on the arbitration award, pursuant to the district court’s power, equitable in nature, to adjust adverse claims exist-

ing between its suitors. Lindholm v. Itasca Lbr. Co. 64 Minn. 46, 65 N. W. 931 (1896).

The district court is requested to advance any suit brought by plaintiff against defendant to the extent necessary to reach an expeditious adjudication.

The cause is remanded to the district court with directions to stay judgment in accordance with this opinion.

The petition for rehearing is otherwise denied.

Mr. Chief Justice Sheran, Mr. Justice Yetka, and Mr. Justice Scott, not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.