I am unable to concur in the foregoing opinion. I deplore its procedure and I disagree quite emphatically with its conclusions. The case is an original proceeding whereby a writ of mandamus was sought and was issued. This was directed to, and served upon, the trial judge. Pursuant thereto, the majority opinion now commands the trial judge peremptorily to dismiss the original case, above entitled. The original case came before us on appeal from the decree of the said trial judge. We reversed the decree and remanded it to the same court for further proceedings not inconsistent with our opinion. The defense in the original case was partial only, and included a tender of a diminished amount for which liability was conceded. In the original trial in the district court, the plaintiff had recovered decree for the full amount of his claim, and the defendant appealed. We reversed the decree, and held in substance that the partial defense was good, and that the defendant was liable to the plaintiff only for the amount that had been tendered. Our opinion on that appeal is to be found in 213 Iowa 855. On remand the trial judge construed the opinion and the procedendo to mean that the plaintiff was entitled to judgment for the amount indicated in such opinion with 5% interest thereon. He entered judgment accordingly. No appeal was taken from that order. In lieu of appeal, the defendant instituted this original proceeding. The position taken by the defendants is that our former opinion was peremptory and definite, and that it peremptorily required a dismissal of the plaintiff's case without regard to any right which the plaintiff might have or might hereafter assert. This contention is fully sustained in the majority opinion. Was the trial judge justified *Page 817 in construing the original opinion as he did? I submit that our opinion imposed no specific mandate upon the trial judge other than to proceed consistently with the opinion as a whole, and that the judgment entered by the trial judge did conform to the purpose and spirit thereof. The original opinion is too long to be set forth in extenso, but its citation renders it readily accessible. The principal item involved in the dispute was the proceeds of a life insurance policy for $10,000. It was collected and deposited by the plaintiff-administrator in the fall of 1922. The policy was upon the life of George Bohnk. George was survived by his father Hans as his only representative and heir. Hans was in the penitentiary, and so continued during the period of the litigation. Ronna was the president of the American State Bank of Walnut, which closed its doors in 1922. Negotiations were had between the insolvent bank and a new bank to be organized and known as the Walnut State Bank. The new bank assumed the payment of 45% of the deposits of the insolvent bank under an agreement by which the depositor should waive 55%. The administrator sued both banks for the whole amount of the insurance and attempted to prove a trust. The Walnut State Bank pleaded the waiver agreement and tendered its performance. This agreement provided for the issuance of certificates of deposit by the Walnut State Bank for 45% of the deposit, due in three years, at 5% interest. This agreement was dated in the fall of 1923. Hans denied that he had ever signed the agreement. We held on the appeal that he had signed it and was therefore bound by it. Such was the substance of our opinion. The tender made by the defendant-bank was in writing only. The certificate of deposit involved in the tender was long past due when the case was decided here. The tender made in the pleading was of the certificate already issued. It had never left the hands of the defendant-bank. It does not appear that the tender was renewed upon the remand of the case, nor was there any tender of the money due thereon. Upon remand, the case was laid before the trial judge upon our opinion on the former record. The defendant insisted upon a dismissal. The plaintiff contended for the right to recover the amounts approved in our opinion. Such in general were the mutual contentions of the parties in their last appearance before the district court.
The controversy before us on the original appeal was whether Hans had signed a waiver as to this insurance item. He admitted he had signed a paper, but that it related only to a smaller deposit *Page 818 which he had in the bank. We held that the waiver signed by him was complete and effective. We said in part (p. 861):
"Hans, according to his contention, therefore signed this general waiver and agreement without any specification of deposit or interest or claim or any limitation upon its scope and effect. The waiver was in such form that Hans was to set out the amount of his deposits but he (as he claims) did not do so. By implication he left it to those who were to act upon it to insert such amounts. Hans did not limit his agreement or authority to any deposit or claim. On his contention with full knowledge and intention that the waiver signed by him was to be used in the reorganization, that it was to be accepted by the other depositors and all others interested as creditors and by the superintendent of banking and by the proposed reorganized bank he agreed `to waive any and all claims' that he had against the American State Bank to the extent of 55 per cent, that the reorganized bank should assume liability to depositors to the remaining 45 per cent, that the superintendent of banking and the American State Bank might transfer to the reorganized bank or to any creditor of the American State Bank any notes or property of the American State Bank as might be necessary for the purpose of effecting the reorganization. The matter of reorganization was submitted by the superintendent of banking to the Attorney General. The waivers were examined by the representatives of the superintendent of banking and the Assistant Attorney General. Among the waivers submitted was that signed by Hans as it appears in its present condition specifying the C.D. $1,200 and the $10,000 insurance. When and by whom this notation was made does not further appear except that all the witnesses who testified other than Hans and Turner say that the notation in its present form was on it when they first saw it. The new corporation, the Attorney General and the banking department relied on this waiver."
Again, in reciting book entries of the bank we said (p. 865):
"Then follows in the list of depositors `Balance of Geo. Bohnk Insurance Payable to Hans Bohnk,' and under head of `45 per cent,' 4,017.19, under the head of `waived 55 per cent,' 4,909.89, under the head of `total,' 10,000.00."
A letter written by the Walnut State Bank to Hans Bohnk *Page 819 appeared in evidence, and our opinion makes the following quotation therefrom:
"Therefore, out of this $10,000.00 we deducted the balance of this debt, leaving the total amount of $8,927.08 due you as the heir of his estate. This amount was, of course, to your credit in the American State Bank, and covered under the waiver which you signed for your deposits therein. Now, the 45% of this amount, which is the part thereof that is assumed and guaranteed, has been placed in a Certificate of Deposit for $4,017.19 issued by the new bank, drawing interest from September 26, 1923, at the rate of 5% per annum, according to the terms and conditions of the waiver contract."
Following this quotation we said in the opinion:
"Hans accepted this situation for five months later, on April 9, 1925, he wrote to an officer of the Walnut State: `Dear Friend: I am in request to no from you whether or not I am able to draw the intress on the $4,017.19 which was due last September, 1924, at any time I would call for it, but not at this writing, as I want to heare from you first and then that I may write you again and tell you what I want and what I want you to do, or that I may draw a part of it and leave the others just as I feel about it. * * *'"
Following the above quotation we said:
"It will be seen that Hans was then accepting the relationship to the Walnut State Bank as having a C.D. for $4,017.19 on which the first year's interest was due the preceding September. He was deferring his decision as to whether to draw a part and leave the rest. * * * Hans Bohnk was the sole distributee of his son's estate. The only parties beneficially interested in the life insurance policy were therefore the bank and Hans F. Bohnk. While plaintiff was under the duty of making collection of the insurance his duty was to the bank of which he was president and to Bohnk for whom, as to the balance above the amount to which the bank was entitled, he was trustee. The plaintiff and the bank of which he was president and those dealing with the bank treated the balance of the insurance fund as belonging to Hans F. Bohnk. Hans so regarded the balance in the hands of the American State Bank after the payment of the indebtedness to it as his property. The only right that the plaintiff *Page 820 has at any time had to the insurance money is the naked right to receive the balance after payment of the American State Bank and to pay it to Hans. The law looks beyond the nominal parties to the real parties in interest and determines the case according to the rights of the latter. See Foreman Shoe Co. v. F.M. Lewis Co., 60 N.E. (Ill.) 971; 47 C.J. 29. Hans is the real party in interest. The suit is prosecuted for his benefit. He is barredfrom claiming more than the 45 per cent of the balance of the insurance money. He cannot through the empty formality of suing in the name of the administrator recover more."
Again, we said (p. 869):
"By the written contract the Walnut State Bank agreed to pay 45 per cent of the deposits in the American State Bank. The only basis for a claim that plaintiff or Hans F. Bohnk is, on account of the insurance money, a depositor is the fact that Hans has been treated and has accepted the relationship as such to the amount of the $4,017.19 for which Hans has been offered a certificate of deposit in the Walnut State Bank. There is no provision of the contract by which plaintiff or Hans is entitled to recover more than the 45 per cent."
And again (p. 870):
"He could obtain no claim under the contract between the American State and the Walnut State except so far as that contract was made for his benefit. It was made for his benefit to the extent of 45 per cent. This he knew of, accepted for more than five months when he inquired about his right to interest on the precise amount of the certificate which was held for him by the Walnut State — $4,017.19."
Our final word was as follows: "The Walnut State Bank is not contesting the right of Hans to payment of the certificates of deposit which it has made out in his favor and this decree will be without prejudice to the rights of Hans, or his assignees, to payment of the same. — Reversed."
I submit, therefore, that our opinion was devoted to a consideration of the rights of the parties under the alleged agreement. There is not a peremptory word therein that calls for a dismissal in terms. To my mind its clear implications are that the plaintiff *Page 821 was entitled to recover 45%, and no more. So reading the opinion, the trial judge entered judgment for the very amounts specified in our opinion, with 5% interest.
The final word of our opinion is that the Walnut State Bank is not contesting the right of the plaintiff to the 45%. The defendant's pleading tendered the 45%. This tender was based upon the allegation that the defendant had waived 55%. The tender in the pleading was good, pending litigation. The issues of the litigation were settled by our opinion. That opinion was predicated upon the tender, and assumed that the tender would be performed. Our opinion constituted an acceptance of the tender for the plaintiff, volens nolens. It was up to the defendant to perform the tender either by deposit of the money or by manual offer thereof. The defendant, however, took the ground that the reversal by us of the original decree amounted to an order of peremptory dismissal, regardless of whether the defendant performed the tender or not. It contended in effect that the reversal necessarily left the plaintiff without any present relief; that the case must be dismissed regardless of the payment of the tender; and that the question of liability for the amount of the tender could be determined only in a new case. The contention now is that the plaintiff is not entitled to recover the 45% until he signs the waiver. The very finding of our opinion is that he did sign the waiver. That fact is taken out of the field of dispute by our holding. The defendant has the benefit of a complete adjudication of the question. What legal effect could be accomplished by requiring the plaintiff to sign the waiver again? Would his obligation, or that of the defendant, be either more or less than is already adjudicated by our opinion? The defendant put itself in the attitude of refusing to perform the pleaded tender for want of another signing by the plaintiff. That, however, is mere argument in support of the procedure. There is no record before us that the defendant so based its refusal to perform the tender; nor did the defendant so qualify his tender in the pleadings in the original case. Under the procedure adopted, the defendant is before us contending that the reversal of the decree by us and the remanding of the case by procedendo for "further proceedings" necessarily required a peremptory dismissal of the plaintiff's case. The reversal of a decree in equity does not necessarily deny the appellee all relief. The reversing opinion must be considered in its entirety, in order to determine the relief to which each or both parties are *Page 822 respectively entitled. The question before us now is one of interpretation of our former opinion. We are as powerless to alter it ourselves as was the trial judge. We must read and interpret it from the point of view of the trial judge. The trial judge was required to interpret both the procedendo and the opinion. The procedendo purported to bring the case back to him for "further proceedings" not inconsistent with the opinion. The interpretation of the trial judge was that he was to put into decretal form the findings of our opinion. He was bound to assume that he had some judicial duty in the premises. The defendant contended for an absolute dismissal. Why should we remand a case to the district court for "further proceedings" if the only order to be entered is one of absolute dismissal? The case was triablede novo before us. It was as easy for us to enter the order of dismissal, if such was the real intent, as to order a remand. If such was the real intent of the opinion and the remand, why should not such intent be disclosed in specific terms? I submit that a fair interpretation of the opinion and the order of remand does not justify the contention, and that the trial judge was justified in interpreting the remand to mean that the performance of the tender, under the circumstances thereof, could be accomplished more conveniently in the trial court than it could here.
It will be noted that the majority opinion herein provides that the dismissal of the case is to be without prejudice to a new action by the plaintiff. Assuming such proviso to be effective when the time comes, it is good as far as it goes. The manifest intent of it is to protect the plaintiff against a plea of prior adjudication. But of what avail is it to the plaintiff to be protected against a plea of prior adjudication in a future action which is apparently already barred by the statute of limitations? More than ten years have elapsed since this deposit was made. If the plaintiff is to be protected in the assertion of his legal rights, it must be done in this action. I would discharge the writ. *Page 823