(dissenting).
In my view, serious mistakes are being made in this case. Even though the ultimate result (a wash) appears fair at first blush, upon analysis, it is not fair and is against the law.
The first mistake is the majority’s conclusion that res judicata applies as a result of the reversal in Rausch I. The trial court held that res judicata cannot arise from a reversed judgment. The trial court was right. The decision in Rausch I was never intended to prevent the Bank from asserting its claim against William Rausch for the April 1978 noté of $75,000. Liability on that note appears clear and was not seriously disputed. If in fact later notes were not renewal notes as the majority claims, William’s liability on that note would persist today. To permit Rausch I to have that effect now and prevent the Bank from asserting Rausch’s liability for $75,000 on the 1978 note is unfair and against the law. Therefore, we should affirm the verdict in the second jury trial for the Bank against William Rausch in the amount of $75,000. Or, at a minimum, if error affected the trial process, we should reverse and remand for a new trial on this and the next issue.
The second mistake in the majority opinion is the conclusion that the compulsory counterclaim law of SDCL 15-6-13(a) applies to Rausch’s counterclaims because they “should have been raised in the first action, ... [and are] also barred by the doctrine of res judicata.”
The majority fails to mention and then ignores the fact that Rausch’s counterclaim did not arise until after the trial and judgment in Rausch I. Rausch’s counterclaim against the Bank for fraud and deceit was based in part on his being subjected to two civil lawsuits, two criminal actions for perjury, and the consequences resulting therefrom.*
It is basic that one cannot be forced to assert facts or claims which do not exist. It is basic that the compulsory counterclaim law does not apply to claims which are not yet in existence. Even the statute (SDCL 15-6-13(a)) is perfectly clear.
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party....
(Emphasis added). The majority cites the correct statute. They simply fail to apply it properly. Therefore, I dissent.
Rausch’s brief provides:
The first [criminal] trial ended with a hung jury. The charges for perjury were brought again; however, this action did not go to trial because William signed an affidavit stating that he did not remember signing the documents in question and the charge was dismissed.
During the first criminal trial, William passed out at lunch break and was taken to the hospital in an ambulance. William was transferred to Sioux Falls for treatment of a heart problem. Later, the criminal trial was continued and resulted in a hung jury. Both William [age 85] and his wife were suffering considerable distress during this time due to these legal problems. While the second criminal case was pending, William had open heart surgery. William’s wife was with him at the hospital during the week before he had his surgery. While William was in the hospital recovering from open heart surgery, his wife died suddenly.
(Transcript references omitted).