#27695, #27706-a-SLZ

2016 S.D. 72

                        IN THE SUPREME COURT
                                OF THE
                       STATE OF SOUTH DAKOTA

                               ****

                              (#27695)

FARMPRO SERVICES, INC.,                  Plaintiff,

     v.

DAVID FINNEMAN, CONNIE
FINNEMAN, CHAD FINNEMAN,
ARMSTRONG FARMS, VERN
ARMSTRONG, and HOPE ARMSTRONG,           Defendants,

     and

MICHAEL ARNOLDY and
ANN ARNOLDY,                             Defendants and Appellees,

     and

ROCK CREEK FARMS GENERAL
PARTNERSHIP, and
WARRENN ANDERSON,                        Defendants and Appellants.


                 APPEAL FROM THE CIRCUIT COURT OF
                   THE SEVENTH JUDICIAL CIRCUIT
                 PENNINGTON COUNTY, SOUTH DAKOTA

                               ****

                   THE HONORABLE CRAIG A. PFEIFLE
                              Judge

                               ****


                                         ARGUED ON AUGUST 30, 2016

                                         OPINION FILED 10/19/16
---------------------------------------------------------------------------------------------------------------------
                                                     (#27706)
FARMPRO SERVICES, INC.,                                                Plaintiff,

         v.

ARMSTRONG FARMS, VERN ARMSTRONG,
HOPE ARMSTRONG, WARRENN
ANDERSON, and ROCK CREEK FARMS
GENERAL PARTNERSHIP,                                                    Defendants,
         and

DAVID FINNEMAN, CONNIE
FINNEMAN, and CHAD FINNEMAN,                                           Defendants and Appellants,

         and

MICHAEL ARNOLDY and ANN ARNOLDY,                                       Defendants and Appellees.

                                                      ****
                                                    (#27695)
BRIAN L. UTZMAN of
Smoot & Utzman, PC
Rapid City, South Dakota
         and

STEVEN W. SANFORD of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota                                              Attorneys for appellants Rock
                                                                       Creek Farms General
                                                                       Partnership and Warrenn
                                                                       Anderson.

                                                    (#27706)
JAMES P. HURLEY of
Bangs, McCullen, Butler,
 Foye & Simmons, LLP
Rapid City, South Dakota                                               Attorneys for appellants
                                                                       Finnemans.

ELIZABETH S. HERTZ
VINCE M. ROCHE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota

         and

ROBERT R. SCHAUB of
Sundall, Schaub & Fox
Chamberlain, South Dakota                                               Attorneys for appellees
                                                                        Arnoldys.
#27695, #27706

ZINTER, Justice

[¶1.]        The issue in this appeal concerns a redemptioner’s entitlement to the

return of money spent in unsuccessful attempts to redeem in a mortgage

foreclosure. A landowners’ successor in interest, a landowners’ strawman, and

judgment lien creditors engaged in competing attempts to redeem in two mortgage

foreclosures. Although the successor in interest successfully redeemed from a

judgment lien creditor in the first foreclosure, a senior mortgagee started a second

foreclosure; a second judgment lien creditor redeemed in the second foreclosure; and

the second foreclosure court ruled that the landowners and successor in interest

waived the statutory right to an owner’s final right of redemption. The landowners

and successor in interest unsuccessfully appealed the second foreclosure court’s

waiver ruling, and they lost the land to the second judgment lien creditor. The

parties then returned to the first foreclosure court where the successor in interest

made an equitable claim for the recovery of redemption money paid and still in the

custody of the sheriff. The landowners sought the same relief, plus reimbursement

for other claimed redemption payments. The circuit court ruled that the

landowners and successor in interest had no equitable claim to the money on

deposit with the sheriff even though the successor in interest redeemed in the first

foreclosure on the mistaken belief that it would be able to exercise the owner’s final

right of redemption in the second foreclosure. The court entered summary

judgment awarding the money on deposit to the judgment lien creditor from whom

the redemption had been made, and the court denied the landowners’ and successor

in interest’s motions for summary judgment on their equitable claims. Landowners


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#27695, #27706

(Appeal No. 27706) and their successor in interest (Appeal No. 27695) appeal. We

affirm.

                            Facts and Procedural History

[¶2.]         David and Connie Finneman were the owners of approximately 16,700

acres of farmland in Pennington and Meade Counties. Finnemans owned 7,500

acres in fee, and they had purchased 9,200 acres on a contract for deed from L & L

Partnership (L & L). Finnemans mortgaged all of the land (except 200 acres

acquired by the contract for deed) to FarmPro Services, Inc. (FarmPro) and Rabo

Agrifinance, Inc. (Rabo). The Rabo mortgage was senior to the FarmPro mortgage.

[¶3.]         Finnemans defaulted, and in 2000, FarmPro initiated foreclosure

proceedings. In 2006, FarmPro purchased the property at the foreclosure sale for

$1,439,130.31 and assigned the certificate of sale to Dr. Lee Ahrlin. Michael

Arnoldy—who held judgments against Finnemans—redeemed from Ahrlin for

$1,765,232.50.

[¶4.]         Finnemans transferred their interest in the property to Rock Creek

Farms (RCF), a partnership formed by Finnemans and Warrenn Anderson. On

May 10, 2007, Anderson paid $822,000 to extend the landowners’ final right of

redemption for one year. On May 6, 2008, Finnemans confessed judgment to two

creditors; and Daniel Mahoney, another associate of Finnemans, purchased those

judgments. Using money provided by RCF, Mahoney redeemed from Michael by

depositing $1,219,734.29 1 (hereinafter referred to as “Mahoney payment”) with the



1.      It appears that this sum is less than Michael Arnoldy’s redemption payment
        because Anderson’s payment to extend the redemption period was a partial
                                                                   (continued . . .)
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#27695, #27706

sheriff. Michael, however, refused to accept the payment so he could challenge the

validity of the judgments Mahoney had used to redeem. Nevertheless, Mahoney

was issued a certificate of redemption.

[¶5.]        On July 3, 2008, Michael’s sister, Ann Arnoldy—who also held

judgments against Finnemans—redeemed from Mahoney for $1,244,570.43.

Mahoney accepted the payment and Ann was issued a certificate of redemption. On

September 12, 2008, RCF exercised the landowners’ final right of redemption and

redeemed from Ann for $1,280,000. RCF thus held the final certificate of

redemption in the FarmPro foreclosure.

[¶6.]        However, in July 2009, Rabo commenced a separate foreclosure action.

The property was sold at another sheriff’s sale, and Ann redeemed again. The Rabo

foreclosure court initially entered a judgment awarding RCF the landowners’ final

right of redemption. However, the Rabo court later vacated its judgment and ruled

that RCF and Finnemans had waived the owner’s right of redemption in a loan

restructuring agreement. RCF and Finnemans appealed, but the appeal failed on

procedural grounds and the circuit court’s waiver decision became final. See Rabo

Agrifinance, Inc. v. Rock Creek Farms, 2012 S.D. 20, ¶ 9, 813 N.W.2d 122, 126.

Consequently, Ann obtained the sheriff’s deed in the Rabo foreclosure.

[¶7.]        During the course of the Rabo foreclosure, L & L also foreclosed on its

contracts for deed. Based on RCF’s and Finnemans’ unsuccessful appeal of the

Rabo foreclosure court’s waiver decision, the L & L foreclosure court ruled that Ann

_________________________________
(. . . continued)
         redemption that reduced the total amount required to redeem. See SDCL 21-
         52-13, -21. The parties have not briefed the matter.

                                          -3-
#27695, #27706

held both equitable ownership of the contract for deed property and the right to cure

the default under the contracts. The L & L court’s decision was affirmed on appeal,

and Ann became the record title owner of all the property at issue. See L & L P’ship

v. Rock Creek Farms, 2014 S.D. 9, ¶¶ 24-25, 843 N.W.2d 697, 705.

[¶8.]        The issues in this appeal arose in March 2012 when RCF returned to

the FarmPro foreclosure court. RCF moved that court to award it the Mahoney

payment, which was still in the custody of the sheriff. RCF argued that because it

had not expected to lose the owner’s final right of redemption in the Rabo

foreclosure, it had mistakenly redeemed in the FarmPro foreclosure. RCF further

argued that because it lost title to the land in the Rabo foreclosure, it was entitled

to recover the redemption money it paid in the FarmPro foreclosure.

[¶9.]        The FarmPro court ruled that it retained equitable jurisdiction to

determine whether RCF and Finnemans “made a bona fide mistake in their attempt

to redeem and whether Arnoldys [could] retain both redemption payments and title

to the property.” See Way v. Hill, 41 S.D. 437, 171 N.W. 206, 207 (1919) (supporting

the FarmPro court’s assertion of equitable jurisdiction). Arnoldys and RCF then

filed cross motions for summary judgment claiming entitlement to the Mahoney

payment. Finnemans also filed a motion for summary judgment, stating that their

motion was “independent of, in addition to, and in support of” RCF’s motion.

Finnemans later filed an affidavit requesting that Arnoldys pay Finnemans

$4,363,469 for what they called “partial redemption payments” made by Finnemans,

RCF, and their receiver. Those payments were made for a variety of things

including the Mahoney redemption, real-estate taxes, rent, debt owed to other


                                          -4-
#27695, #27706

creditors, and Rabo loan payments. Finnemans’ affidavit also asked for title to 200

acres of property that was part of the L & L foreclosure.

[¶10.]       The circuit court sent a letter to the parties to clarify whether the issue

to be decided under the motions for summary judgment was entitlement to the

Mahoney payment. Although Arnoldys agreed, the record is not clear whether RCF

agreed, and Finnemans responded with a letter reasserting all the requests they

made in their affidavit.

[¶11.]       The circuit court limited its decision to the relief requested in the

summary judgment motions; i.e., who was entitled to the Mahoney payment. The

court found that RCF had no claim to the money because RCF was reimbursed for

Mahoney’s redemption when Ann Arnoldy redeemed from Mahoney. The court also

found that RCF’s decision to redeem in the FarmPro foreclosure was not the kind of

“invalidating mistake” that permitted equitable relief. The court ruled that RCF

took a calculated risk that the interest it obtained through redemption in the

FarmPro foreclosure could later be lost in the foreclosure of a senior mortgage. The

court ultimately ruled that Michael was entitled to the Mahoney payment:

             RCF’s calculated risk and decision to redeem in the FarmPro
             proceeding provides no basis for claiming a right to the
             [Mahoney payment]. As the person from whom Mahoney sought
             to redeem from, Michael Arnoldy had a right to accept the
             payment when it [was] deposited in 2008, and he retains that
             right today.

The court entered summary judgment awarding Michael the money from the

Mahoney payment, it denied RCF’s and the Finnemans’ motions, and these appeals

followed.



                                          -5-
#27695, #27706

[¶12.]         Because the Appellants’ claims on appeal are much broader than the

limited claim decided by the circuit court, we must first determine the appropriate

issues to be decided. The circuit court’s decision and judgment only resolved

entitlement to the Mahoney payment ($1,219,734.29) that was tendered to Michael

and was still on deposit with the sheriff. On appeal, however, RCF disavows a

direct claim to that payment. Instead, it argues that the circuit court erred in

failing to award RCF the redemption payment it made to Ann ($1,280,000) and the

payment Anderson made to Michael ($822,000) to extend the redemption period.

RCF only contends that it should recover the Mahoney payment as a “down

payment” on these other two requests. Finnemans support RCF’s arguments and

make claims to their additional asserted “redemption payments” totaling

$4,363,469. We decline to consider RCF’s and Finnemans’ claims to anything other

than the Mahoney payment. We do so because the circuit court made no decision

and entered no judgment respecting the other claims. 2 Therefore, we limit our

review to the question whether Michael was entitled to summary judgment on the

Mahoney payment. We also consider RCF’s related claim that the circuit court

erred in refusing to compel Arnoldys to respond to certain interrogatories.




2.       We also note that even if the other claims were properly postured for
         resolution by the circuit court—a proposition that is questionable at best—
         Appellants were not entitled to summary judgment on those claims.
         Appellants themselves contend that there are disputed issues of material fact
         to be resolved regarding equitable entitlement on the other claims.

                                           -6-
#27695, #27706

                                        Decision

The Mahoney Payment

[¶13.]         Because Mahoney, a judgment lien creditor, redeemed from Michael, a

prior redemptioner, Michael had the statutory right to the Mahoney redemption

payment. See SDCL 21-52-19, -14 (providing that holders of junior liens may

redeem from a prior redemptioner by paying the prior redemptioner the purchase

price at the sale plus sums paid to protect the interest acquired together with

interest). RCF, however, claims that it is inequitable to allow Michael Arnoldy to

retain the redemption money that RCF paid to redeem in the FarmPro foreclosure

and allow Ann Arnoldy to retain the land obtained in the Rabo foreclosure. 3

[¶14.]         RCF relies on case law that, it claims, requires the return of

redemption money as restitution 4 when redemption fails. However, RCF’s

redemption did not fail. RCF successfully redeemed from Ann and obtained the

final certificate of redemption in the FarmPro foreclosure. RCF did subsequently



3.       At oral argument, RCF explained that Arnoldys had taken the position below
         that they were acting in concert for purposes of the redemption money.

4.       RCF contends that the circuit court failed to distinguish restitution and
         unjust enrichment. RFC cites the third definition of restitution in Black’s
         Law Dictionary, which defines restitution as the “restoration of some specific
         thing to its rightful owner or status.” Restitution, Black’s Law Dictionary
         1507 (10th ed. 2014). This is an abbreviated definition. The primary
         definition indicates restitution is: “A body of substantive law in which
         liability is based not on tort or contract but on the defendant’s unjust
         enrichment.” Id. “According to the leading English authorities, ‘the law of
         restitution is the law relating to all claims, quasi-contractual or otherwise,
         that are founded upon the principle of unjust enrichment.’” Bryan A. Garner,
         Dictionary of Modern Legal Usage 765 (2d ed. 1995) (quoting Robert Goff &
         Gareth Jones, The Law of Restitution 3 (3d ed. 1986)). RCF has not identified
         a distinction that is material to the disposition of this case.

                                           -7-
#27695, #27706

lose that interest in the Rabo foreclosure, but that was a separate, subsequent

foreclosure action involving a senior mortgagee. The cases cited by RCF involved

single foreclosures in which the courts determined that it may be unjust for an

ultimate titleholder to retain title and a redemption payment from those who are

found to have no right to redeem. See Abrams v. Porter, 920 P.2d 386, 391 (Idaho

1996) (returning redemption money after concluding the corporation that assigned

redemptioners their redemption rights was dissolved at the time of assignment); E.

Jersey Sav. & Loan Ass’n v. Shatto, 544 A.2d 899, 902-03 (N.J. Super. Ct. Ch. Div.

1987) (returning redemption money to mortgagors after they tried to redeem in a

“sham” effort to delay foreclosure); Davis Mfg. & Supply Co. v. Coonskin Props.,

Inc., 687 P.2d 484, 486 (Colo. App. 1984) (returning redemption money after setting

aside order determining the amount to redeem); see also Way, 171 N.W. at 207

(estopping judgment creditor from interposing the statutory period of redemption on

redemptioner after judgment creditor accepted partial redemption payment). We

conclude that these authorities do not govern redemptioner risks of loss from

subsequent, independent foreclosures by senior creditors.

[¶15.]       RCF, however, argues that in determining the right to equitable relief,

the circuit court should not have considered risk: what the circuit court described as

RCF’s “calculated risk” in redeeming. RCF contends that risk is irrelevant under

its theory of restitution. We disagree. The circuit court asserted jurisdiction to

determine the “legal rights of both creditor and redemptioner under settled rules of

equity jurisprudence applicable in cases of excusable mistake in attempts in good

faith to exercise legal rights.” See Way, 171 N.W. at 207 (emphasis added). But “a


                                          -8-
#27695, #27706

person who without mistake, coercion, or request has unconditionally conferred a

benefit upon another is not entitled to restitution.” Dowling Family P’ship v.

Midland Farms, 2015 S.D. 50, ¶ 24, 865 N.W.2d 854, 864 (emphasis added). And

“[a]n invalidating mistake does not occur where the claimant bears the risk of loss.”

Id. ¶ 25. Accordingly, the circuit court properly considered RCF’s risk of loss in

deciding to redeem.

[¶16.]         RCF and Finnemans also argue that the circuit court erred in

concluding that RCF took a calculated risk in deciding to redeem. They contend

that there was no risk of losing their FarmPro redemption interest in a subsequent

foreclosure because at the time RCF redeemed, SDCL 21-52-7 gave RCF the owner’s

final right of redemption in any subsequent foreclosure actions. Further, they note

SDCL 44-1-8 provides that agreements waiving the right of redemption are void.

Thus, RCF and Finnemans contend that losing the owner’s final right of redemption

was an invalidating mistake; they could not be “stripped” of that right, and RCF

would not have redeemed if it knew that the Rabo foreclosure court would rule that

Finnemans waived the owner’s final right of redemption.

[¶17.]         Although RCF and Finnemans allege that they were wrongfully

“stripped” of the owner’s right of redemption, they must be deemed to have assumed

the risk of such a decision, and the Rabo court waiver decision is not subject to

collateral attack in this proceeding. 5 Finnemans participated in the prior loan



5.       RCF and Finnemans contend that the FarmPro “court erred in determining
         that Rock Creek Farms waived its rights to redemption.” However, the
         FarmPro court—the circuit court here—did not make that determination.
         RCF litigated and lost the waiver issue in the Rabo foreclosure. See Rabo
                                                                     (continued . . .)
                                            -9-
#27695, #27706

restructuring, and there was law in existence at the time of the FarmPro

redemptions that indicated a waiver of an owner’s right of redemption could be

enforced in some circumstances like this. 6 Moreover, RCF knew that it was taking

a calculated risk by investing money in the FarmPro foreclosure. In a February 19,

2008 letter to counsel for the Finnemans, an attorney representing RCF investor

Anderson described the RCF investments as “a calculated risk” and “gambling with

[Anderson’s] money.” Under these circumstances, both Finnemans and RCF must

be deemed to have assumed the risk that Finnemans’ waiver of the owner’s final

right of redemption might be enforced.

[¶18.]         Because the waiver issue was at the very least an open question, RCF

bore the risk of losing its interest in a subsequent foreclosure. The 2006 FarmPro


_________________________________
(. . . continued)
         Agrifinance, Inc., 2012 S.D. 20, ¶ 9, 813 N.W.2d at 126. Here, the circuit
         court simply took notice of the Rabo court’s decision, and neither RCF nor
         Finnemans cite authority allowing them to collaterally attack that final
         decision in this appeal.

6.       Prior to the time RCF redeemed, this Court decided a case indicating the
         possibility that a mortgagor could waive the right to redeem in a subsequent
         transaction. Myers v. Eich, 2006 S.D. 69, ¶ 32, 720 N.W.2d 76, 86 (stating
         equitable mortgagee has burden of establishing that mortgagor knowingly
         waived right of redemption for fair and adequate consideration). There were
         also other authorities that specifically cast doubt upon RCF’s and Finnemans’
         claim of an absolute, unwaivable owner’s right of redemption. See, e.g.,
         O’Connor v. Schwan, 251 N.W. 180, 181 (Minn. 1933) (“It firmly is
         established that a mortgagor may not, at the time of, nor as a part of, the
         mortgage transaction, bargain away his equity of redemption. . . . However,
         it is settled equally well that a mortgagor may bargain away, sell, or convey
         to the mortgagee his equity of redemption subsequent to the time that he
         executed the mortgage . . . .”); see also 59A C.J.S. Mortgages § 1385 (“A
         mortgagor may waive a statutory right of redemption by subsequent
         agreement, provided that the agreement is equitable and supported by
         adequate consideration.”).

                                          -10-
#27695, #27706

notice of sheriff’s sale put RCF on notice that the land was sold (and therefore

redeemed) subject to Rabo’s superior $4,200,000 mortgage that could also be

foreclosed. Foreclosure by a senior mortgagee “is a matter which the redemptioner

should have considered before it parted with the money.” Copper Belle Mining Co.

of W. Va. v. Gleeson, 134 P. 285, 287 (Ariz. 1913). That is because the redemptioner

takes the land subject to senior mortgages. See Co-operative Lumber Co. of Hecla v.

Treeby, 56 S.D. 313, 228 N.W. 390, 392 (1929); L & L P’ship, 2014 S.D. 9, ¶ 17,

843 N.W.2d at 703-04; Kruse v. State, 73 S.D. 49, 55, 38 N.W.2d 925, 928 (1949); see

also SDCL 21-48A-2. Therefore, as the Arizona Supreme Court noted in a similar

redemption case, even though “the matter turned out very differently from what

was expected, the miscalculation is not such a mistake, either of fact or of law,

within the meaning of the equitable doctrine as entitles the disappointed party to

any relief.” Copper Belle Mining, 134 P. at 287.

[¶19.]       Ultimately, RCF must be deemed to have assumed the risk that the

interest it obtained in the FarmPro foreclosure—an interest in heavily encumbered

land—could be lost in a subsequent foreclosure; a foreclosure that was on the horizon

at the time it redeemed. It did not need to know the exact circumstances under

which the risk of loss would materialize; only that loss was possible. See

Restatement (Third) of Restitution and Unjust Enrichment § 5 cmt. c (Am. Law

Inst. 2011) (“Faulty prediction will not support a claim in restitution, and

invalidating mistake is to be distinguished from the error in judgment that is

visible in hindsight.”). The circuit court did not err in denying RCF and Finnemans

equitable relief and awarding Michael summary judgment on his statutory claim to


                                         -11-
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the Mahoney payment. RCF’s redemption (through Mahoney) was not an

invalidating mistake: RCF took a calculated risk when it redeemed in the FarmPro

foreclosure.

[¶20.]         RCF and Finnemans, however, also argue that summary judgement

was improperly granted because there were outstanding disputes of fact on their

equitable claims. They contend that there are disputes of fact whether RCF

redeemed in good faith and whether Arnoldys were unjustly enriched. But because

RCF failed to establish entitlement to restitution by making the threshold showing

of an invalidating mistake, these other unresolved issues of fact were not material.

See supra ¶ 19; see also Dowling Family P’ship, 2015 S.D. 50, ¶ 19, 865 N.W.2d

at 862 (indicating that a claimant must establish all the elements necessary to

support a claim of unjust enrichment).

[¶21.]         Finnemans separately argue that factual disputes exist whether there

should be restitution for additional money spent ($4,363,469 less the Mahoney

payment) on real estate taxes, debt payments, and rent paid during foreclosure.

They also argue that there are factual disputes whether RCF made redemption

payments without fraud or deceit; whether Finnemans had standing to move for

summary judgment; and whether Arnoldys violated the L & L judgment of

foreclosure as to redemption of the 200 contract for deed acres. But for the reasons

just expressed, these claims (other than redemption of the contract for deed acres)

are based on the theory of unjust enrichment, and the facts relating to these

elements of unjust enrichment are not material because Finnemans failed to satisfy

the threshold requirement of showing an invalidating mistake. Further, the claims


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to money other than the Mahoney payment were not decided by the circuit court;

Finnemans only raised these claims by affidavit and letter, and the court declined

to consider them. Finally, Finnemans have cited no authority supporting an

argument that they are entitled to obtain, in the FarmPro foreclosure, title to the

200 acres that were the subject of the L & L contract for deed foreclosure. Thus,

Finnemans have not identified any disputes of material fact that precluded

summary judgment on Michael’s entitlement to the Mahoney payment.

Discovery Requests

[¶22.]       RCF argues that the circuit court erred in not compelling Arnoldys to

respond to certain interrogatories. RCF claims that its “discovery was necessary to

address the doctrine of unclean hands and the proposition that one seeking equity

must do equity.” But Michael sought no equitable relief. Michael merely requested

enforcement of his statutory right to the redemption payment. Therefore, any facts

developed in additional discovery concerning Arnoldys’ unclean hands would have

been irrelevant to the question actually decided. The circuit court did not abuse its

discretion in declining to compel Arnoldys’ response to interrogatories that were

immaterial to the summary judgment question that was decided. See Anderson v.

Keller, 2007 S.D. 89, ¶ 5, 739 N.W.2d 35, 37 (articulating the abuse of discretion

standard for discovery matters).

                                     Conclusion

[¶23.]       We conclude that RCF’s decision to furnish money for Mahoney to

redeem in the FarmPro foreclosure was not an invalidating mistake that permitted

equitable relief. Further, Michael had the statutory right to the Mahoney payment.


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#27695, #27706

We affirm the circuit court’s judgment granting summary judgment in favor of

Michael. RCF’s and Finnemans’ other arguments are not appropriate for appellate

review.

[¶24.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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