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https://www.courtlistener.com/api/rest/v3/opinions/1817533/ | 440 F.Supp. 1010 (1977)
SAYLES BILTMORE BLEACHERIES, INC., Plaintiff,
v.
SOFT-FAB TEXTILE PROCESSORS, INC., Defendant.
No. 77 Civ. 4501.
United States District Court, S. D. New York.
November 28, 1977.
*1011 Austrian, Lance & Stewart, P. C., New York City, for plaintiff; Sandra Gale Behrle, Washington, D. C., of counsel.
Ralph J. Schwarz, Jr., New York City, for defendant.
LASKER, District Judge.
Sayles Biltmore Bleacheries, Inc. ("SBBI") sues Soft-Fab Textile Processors, Inc. ("Soft-Fab") for the value of services rendered. SBBI, which is a New York corporation with a finishing plant in Asheville, North Carolina, claims never to have been paid for the fabric processing work that it performed for Soft-Fab, a Missouri corporation with offices in St. Louis and Greensboro, North Carolina. Soft-Fab moves to dismiss on the ground that there is no personal jurisdiction over the defendant. Rule 12, Federal Rules of Civil Procedure. The *1012 motion is granted for the reasons set forth below.
Business relations between the parties were initiated in early October, 1976, when Soft-Fab's president, Michael Novoson, wrote to the president of SBBI, Sheffield Novik. (The introductory letter, dated October 11, 1976, was addressed to SBBI's North Carolina offices; see, Ex. D, Novik Affidavit) Novoson expressed his interest in working out a contract with SBBI under which SBBI would process fabrics on Soft-Fab's behalf. Negotiations followed, and continued through December, 1976. The negotiation meetings were held either at SBBI's Asheville processing facilities or in St. Louis. (¶¶ 24-30, Novoson Affidavit; ¶¶ 13, 15, 16, Novik Affidavit) None of the preliminary conferences took place in New York.
Whether or not these discussions produced an express contract a mixed question of law and fact that need not be decided they did lay the foundation for a course of dealing in which SBBI processed Soft-Fab's materials on a lot-by-lot basis (¶¶ 14, 17, 20, Novik Affidavit). Fabric was sent from mills in North Carolina (¶ 16, Novoson Affidavit) to the Asheville plant, where it was subjected to a finishing treatment specified in accompanying processing orders (Ex. B, Novik Affidavit; Ex. D, Novoson Affidavit). These orders contained all the specifications for each processing transaction except for the price term. That term was provided by SBBI, and though it appears that the price for each lot was governed by a master price schedule, (¶ 18, Novoson Affidavit; ¶¶ 26, 27, Novoson Reply Affidavit) plaintiff claims that an independent price determination was made for each lot. Finished goods were shipped to Soft-Fab's customers, and, except for three shipments of samples, were sent to locations other than New York (¶ 30, Novoson Affidavit; ¶ 17, Novoson Reply Affidavit).
Against what loudly proclaims itself to be a series of perfectly foreign transactions, plaintiff offers several "contacts," which it believes constitute "transaction of business," sufficient under C.P.L.R. § 302(a)(1) to subject the defendant to New York's jurisdiction.
First, SBBI contends that Soft-Fab's decision to do business with a New York corporation itself amounted to a submission to our jurisdiction. As SBBI puts it:
"defendant Soft-Fab Textile Processors, Inc. (`Soft-Fab') knew immediately after it contacted plaintiff, Sayles Biltmore Bleacheries, Inc. (`SBBI') that it would be dealing with a New York company. It accepted the fact that negotiations and decision-making would center around the corporate headquarters and office of the president of the company in New York and knew that there was no way the companies could continue to deal with each without the domination and control of the New York office. With this knowledge it elected to go ahead and deal with SBBI, a New York corporation, and with its president located in New York. It cannot now say it never availed itself of the privileges and protection of New York and therefore is not subject to jurisdiction here." (Plaintiff's Memorandum at 2)
Inherent in this apparent non sequitur is the proposition that the choice to do business with SBBI amounted to the appointment of an agent and, through the acts of this agent, Soft-Fab acquiesced to New York's jurisdiction. The short answer to this construction of the law is that it is wrong. Furthermore, in a suit in New York by an agent against his principal, the former's activities in New York cannot, for jurisdictional purposes, be attributed to the latter. Haar v. Armendaris Corporation, 31 N.Y.2d 1040, 342 N.Y.S.2d 70, 294 N.E.2d 855 (1973), reversing 40 A.D.2d 769, 337 N.Y.S.2d 285 (1st Dept. 1972); accord, Concrete Detailing Services, Inc. v. Thomsson Steel Co., Inc., 411 F.Supp. 1021 (S.D.N.Y. 1976). Without the agency theory, the fact that New York was the center of plaintiff's activities is irrelevant to the outcome under C.P.L.R. § 302(a)(1), which depends on the *1013 connection that defendant has with this jurisdiction. Galgay v. Bulletin Company, Inc., 504 F.2d 1062, 1065 (2d Cir. 1974).
In its attempt to establish jurisdiction, SBBI emphasizes that carbon copies of correspondence (concerning the contract negotiations) that was addressed to Asheville were forwarded to New York and that telephone calls were placed from St. Louis to New York. Although we are impressed with the sincerity with which the argument is made, the notion that mailing copies of letters from out of state to New York amounts to "transaction of business," in this case or any other, is altogether unfounded. First, since plaintiff firmly claims that no contract was ever formed (¶ 19, Novik Affidavit), no cause of action could have "arisen from" the correspondence related to the attempted contract. Second, even where successful contract negotiations have been conducted by mail and originals, rather than copies, have been sent here, the transmission has been held not to be a transaction of business. Glassman v. Hyder, 23 N.Y.2d 354, 363, 296 N.Y.S.2d 783, 789-90, 244 N.E.2d 259, 263 (1968); McKee Electric Company v. Rauland-Borg Corporation, 20 N.Y.2d 377, 380, 283 N.Y. S.2d 34, 36, 229 N.E.2d 604, 606 (1967). As for the telephone calls, which concerned the price of certain lot-by-lot transactions (¶ 27, Novik Affidavit; ¶¶ 28, 29, Novoson Affidavit), when they were initiated by defendant they originated either in St. Louis or in Greensboro. Interstate negotiations by telephone do not subject the caller to the jurisdiction of the receiver. Galgay v. Bulletin Company, Inc., supra, 504 F.2d at 1064; Concrete Detailing Services, Inc. v. Thomsson Steel Co., Inc., supra, 411 F.Supp. 1021; Aero-Bocker Knitting Mills, Inc. v. Allied Fabrics Corporation, 54 A.D.2d 647, 648, 387 N.Y.S.2d 635, 636 (1st Dept. 1976); Glassman v. Hyder, supra, 23 N.Y.2d at 357, 296 N.Y.S.2d at 785, 244 N.E.2d at 260; cf., Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 15, 17, 308 N.Y.S.2d 337, 338, 340, 256 N.E.2d 506, 508 (1970) (there, the telephone was used not to establish the terms of a transaction, but to effect the transaction).
SBBI claims, and Soft-Fab concedes, that on three occasions, SBBI shipped goods into New York on behalf of Soft-Fab. The goods shipped were sample yardage (¶ 17, Novoson Reply Affidavit). In light of the fact that the volume of yardage was infinitesimal less than one tenth of a percent of the amount of fabric that was processed by SBBI and in light of the fact that the cause of action arises from the processing work, not from the shipment of negligible samples, it cannot be said that the shipments were a "sustained and substantial transaction of business here," sufficient to establish jurisdiction. Parke-Bernet Galleries, Inc. v. Franklyn, supra, 26 N.Y.2d at 19, 308 N.Y.S.2d at 341, 256 N.E.2d at 509.
Finally, SBBI pins jurisdiction on a single visit to New York by the officers of Soft-Fab. During this one visit, which lasted a matter of hours, Soft-Fab's people met separately with SBBI (¶ 8, Novoson Affidavit) and also with customers who have no relationship to the instant dispute (¶¶ 2-4, Novoson Supplemental Reply Affidavit). The New York visit is not an adequate predicate for jurisdiction. First, insofar as it was the occasion for a meeting about the contract that was never consummated (¶ 22, Novik Affidavit) (or for calls on customers unrelated to this litigation) it cannot have given rise to this cause of action. Even if the meeting with SBBI concerned problems experienced in relation to the lot-by-lot relationship, one such "trouble shooting" meeting does not amount to a transaction of business for the purpose of C.P.L.R. § 302(a)(1). Concrete Detailing Services, Inc. v. Thomsson Steel Co., Inc., supra, 411 F.Supp. 1021; McKee Electric Company v. Rauland-Borg Corporation, supra, 20 N.Y.2d at 382, 283 N.Y.S.2d at 37, 229 N.E.2d at 607.
Not having transacted business here, the defendant is beyond this court's personal jurisdiction. Accordingly, the motion to dismiss is granted (mooting the alternative *1014 motion to transfer), and, as a consequence, plaintiff's application for a preliminary injunction is denied.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4033579/ | IN THE COURT OF APPEALS OF IOWA
No. 15-1853
Filed September 14, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAMARIO JOHNSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, William L.
Dowell, Judge.
A defendant appeals the sentences received for charges of possession of
a controlled substance with intent to deliver and ongoing criminal conduct
involving specific unlawful activity. AFFIRMED.
William R. Monroe of the Law Office of William Monroe, Burlington, for
appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
GOODHUE, Senior Judge.
Damario Johnson pled guilty to charges of possession of a controlled
substance with intent to deliver and ongoing criminal conduct involving a
specified unlawful activity. Johnson was sentenced accordingly, and he has
appealed the sentences.
I. Factual Background
The Burlington Police Department used a confidential informant to conduct
a series of controlled drug buys from Johnson. The first buy took place on
May 21, 2015, and three more buys were conducted, with the last taking place
on July 17, 2015. In each transaction the controlled substance was cocaine.
After the last transaction, the officers obtained a search warrant to search
Johnson’s residence, and the search uncovered ecstasy tablets, crack cocaine,
powder cocaine, and a loaded handgun. Johnson was charged with four counts
of delivery of a controlled substance, three counts of possession of a controlled
substance with intent to deliver, and one charge of ongoing criminal conduct of a
specified unlawful activity, for which the predicate offenses were the charges of
possession with intent to deliver.
A plea offer was made providing that if Johnson entered the plea of guilty
to specified ongoing criminal conduct and one of the charges of possession of a
controlled substance involving cocaine, the remaining charges would be
dismissed. The plea agreement allowed both Johnson and the State to make
any sentencing recommendation they desired. The offer was accepted, pleas of
guilty were entered to the two charges, and all the other charges were dismissed.
As a part of the plea proceeding, Johnson admitted the four sales of cocaine
3
supporting the ongoing criminal conduct charge. A presentence investigation
(PSI) report was ordered. The PSI report reflected that Johnson had been
charged seventeen different times but only twelve of the charges had resulted in
a conviction.
At sentencing, the court acknowledged the plea agreement, the entry of
the plea, and the receipt of the copy of the PSI. Johnson’s counsel made some
minor objections to the PSI. Johnson was asked if there was any reason the
sentence should not be pronounced, and Johnson said, “No.” The court then
stated, “It is now ordered adjudged, and decreed that the defendant is guilty of
the crime of acts of specific unlawful activity . . . also possession of a controlled
substance with intent to deliver.” The State then made a recommendation of
incarceration. The State further requested a twenty-five-year sentence on the
charge of ongoing criminal conduct and ten years on the charge of possession of
cocaine with intent to deliver, with the sentences to run concurrently. Johnson’s
counsel recommended a deferred judgment or, if not acceptable to the court,
probation with placement at a residential facility, as had been recommended in
the PSI report. The court offered Johnson his right of allocution, but he declined
the invitation.
The court sentenced Johnson to a twenty-five-year term and a ten-year
term, a fine, and other financial obligations not material to this appeal. Johnson
appealed. In his pro se brief, Johnson contends that by reciting the finding of
guilt before his counsel had the opportunity to make counsel’s recommendation
of a deferred judgment, Johnson was in fact denied the possibility of receiving a
deferred judgment. He also contends that because the PSI report referred to
4
charges that did not result in convictions, the court relied on unproven offenses in
its sentencing.
II. Preservation of Error
The State does not contest error preservation.
III. Standard of Review
Sentences are reviewed for corrections of law and will not be reversed
absent an abuse of discretion or some defect in the sentencing procedure. State
v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
IV. Discussion
Johnson’s primary complaint stems from an understandable
misconception. The court announced he was guilty before even hearing his
request for a deferred judgment. Johnson’s position is the court’s statement of
guilt foreclosed the deferred judgment even before the court had heard his
reasons for asking for one. As he expresses it, “the court put the cart before the
horse.”
Iowa Code section 901.5(1) (2015) authorizes a deferred judgment as a
sentence alternative. A deferred judgment is not a deferred prosecution, which is
primarily a nonjudicial procedure sometimes employed by prosecutors. A
deferred judgment is available after the verdict is rendered and not until then.
Johnson quotes a myriad of authorities, but none hold that a deferred judgment is
available only before a party has been found guilty or that a deferred judgment is
not available after a finding guilt under Iowa law.
As to Johnson’s second issue, a court is not permitted to rely on unproven
and unadmitted offenses in the determination of an appropriate sentence. See
5
State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). However, for Johnson to
obtain relief, he must affirmatively show that the court did in fact rely on an
unproven or unadmitted offense in determining his sentence. See State v. Jose,
636 N.W.2d 38, 41 (Iowa 2001). Johnson admitted four predicate charges of
possession with intent to deliver that were the basis of the charge of ongoing
criminal conduct. It is true the PSI listed seventeen arrests and only twelve
convictions. The court gave its reasons for the sentence and did not indicate any
reliance on the seventeen arrests. The presumption is that the court properly
exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282 (Iowa
1990). Nothing to the contrary has been shown.
We affirm Johnson’s convictions and sentences.
AFFIRMED. | 01-03-2023 | 09-14-2016 |
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https://www.courtlistener.com/api/rest/v3/opinions/3429965/ | A narrow-gauge line of railroad belonging to the defendant company runs east and west through the incorporated town of Zwingle, a town of 149 inhabitants. This line of railroad connects the towns of Bellevue and Cascade. U.S. Highway No. 61 runs north and south through Zwingle. *Page 701
The accident in question occurred at the crossing of said highway with the railroad. Each day two trains go east and two go west over this line of railway; all trains, according to schedule, arrive at Zwingle in the daytime, except one going west, which is due at Zwingle at 7:15 P.M. The distance between Bellevue and Cascade is 35.6 miles, and the scheduled time for making said distance of said train going west is three hours. The parties occupying the automobile at the time in question reside in East Moline, Illinois. It appears from the record that, on the 6th day of September, 1930, Mrs. Butters and the baby were at Colesburg, Iowa, and that Butters and Seefeldt, in the "Model A Ford Coup Pickup" belonging to and driven by Seefeldt, made the trip on U.S. No. 61 from Moline to Colesburg, where they got Mrs. Butters and the baby and began their return trip from Colesburg to Moline on the same highway. They arrived at Zwingle just as the train going west was pulling out of the town. Seefeldt drove the car and Mr. and Mrs. Butters occupied the same seat with the driver, the baby sitting on the mother's lap. The automobile was in perfect running condition and was fully equipped with lights, which complied with the statute. It was dark before the automobile party arrived at Zwingle. The pavement on the highway was dry, and 18 feet in width. The defendant company maintains in the town both a main track and a switch track, the main track being from 13 to 15 feet south of the switch track. On the right-hand side of the street going south, in close proximity to the railroad, is the usual cross-buck sign, with the words "Rail-Road Crossing" conspicuously painted thereon. On the right shoulder of the highway, 380 feet north of the main track, is a railroad disc sign two feet in diameter, with the letters "R.R." and two black stripes underneath. On the right shoulder, 556 feet north of the main track, is a conspicuous sign denoting residence district and that the speed limit is 25 miles per hour. Suspended in the center of the street, 80 feet north of the switch track, there was a 100-watt candle power electric light, and in the center of the street, 98 feet south of the south track, is another one of the same description. There are other street lights, both to the north and south of the ones just mentioned. The depot stands 105 feet east of the center of the U.S. Highway No. 61; on the east side of said highway, north of the tracks, there is an open space and a street; on the *Page 702
east side of said highway and the north side of said street stands a building. The distance from said building to the track is 90 feet. There was no obstruction of the view toward the east after getting past the store building. On the west side of the highway in question stands a building about 20 feet wide. Thus it is seen that there was no obstruction to the view toward the east to one coming from the north after getting 90 feet from the crossing, and practically no obstruction to the view toward the west. From the crossing the highway runs 228 feet straight north, and then there is a slight curve to the right, the north end of the curve being 467 feet north of the crossing. This is a five-degree curve. In going north from the crossing, there is an incline, a six and one-half per cent grade, and from the beginning of the curve on northerly the extent of the grade gradually decreases. At the point 228 feet north of the crossing, the highway is 13.2 feet higher than at the track. From the railroad track south the surface of the ground is level for a distance of about 200 feet, and from that point there is a six per cent grade to the top of a hill.
On the evening in question, the train came from the east, whistling as it entered the town. The engine pulled across the highway so as to leave the passenger and baggage car at the depot. The train was there a few minutes, for the exchange of mail, when it began to pull out. The evidence establishes the fact that the whistle was not sounded nor the bell rung as the train began to move from the depot. The automobile party came from the north, traveling from 30 to 40 miles per hour. At a distance of about, 150 feet north of the tracks they met an automobile going north. The automobile party continued in a southerly direction, with no material decrease in speed, and struck broadside the tenth car from the engine of the moving train. Seefeldt and Butters, who were in the automobile at the time in question, and both of whom gave testimony in behalf of the plaintiff, testified that they did not see the train or any obstruction across the highway ahead of them until just an instant before the collision. The plaintiff was seriously injured as a result of the collision. There is virtually no conflict in the testimony, and the foregoing sufficiently states the facts which are necessary for the determination of the questions presented.
At the close of the evidence, the defendant presented a *Page 703
motion for a directed verdict, basing the same, among other grounds, upon the following: That upon the entire record there is no evidence of actionable negligence upon the part of the defendant; that there is no evidence of actionable negligence upon the part of the defendant which was the proximate cause of the collision; and that, upon the entire record, the plaintiff has failed to sustain the burden of proof required, and if the case were submitted to the jury and verdict rendered in favor of the plaintiff, it would be the duty of the court to set the same aside. This motion was sustained. This ruling by the trial court presents the primary complaint urged by the appellant.
[1] The plaintiff urges that the defendant failed to continuously ring the bell on the locomotive engine attached to said train, until said crossing was passed. The evidence fails to establish any failure to give the statutory signals before and at the time when the engine passed over the crossing. When the train had stopped, the engine was a hundred feet or more west of the highway in question, the passenger coach at the depot, and the intervening cars across the highway at a right angle thereto. Plaintiff's contention is that the train had not passed over the highway, and that it was the statutory duty of the defendant to ring the bell continuously until the entire length of the train had passed over the crossing. In this the plaintiff is in error. Section 8018, Code 1927, provides:
"A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed; * * *"
It will be noted that there is nothing said in said section about a train; there is nothing therein mentioned about the crossing's being passed by a train, — it refers only to an engine operated on any railway. The bell shall be placed on the locomotive engine operated on any railway and shall be rung continuously until the crossing is passed, — manifestly by the engine to which the bell is required to be placed. It must also be borne in mind that, contrary to the general rule, in this instant case the engine did not collide with the automobile, but, on the contrary, the automobile collided broadside with a car in the rear *Page 704
portion of the train. It is quite obvious that there was no breach of statutory duty on the part of the defendant for failure to ring the bell in starting the train to move from the depot and for failure to continue to ring the same until the entire train had passed over the crossing.
[2] But the plaintiff contends that, under the record, the giving of the statutory signals is not sufficient to relieve the defendant from negligence; he contends that the record is such as that a jury should be permitted to say that the crossing is one of unusual danger, and that, if the triers of the fact should find it to be such, then the railroad company in the exercise of ordinary care is required to give notice or warning, other than and in addition to the statutory signals. The evidence conclusively shows that no such additional notice or warning was given, except by the signs hereinbefore mentioned. The plaintiff is correct in his contention that, if the crossing is one of unusual danger, then the defendant, in the exercise of ordinary care, is required to give notice or warning, other than and additional to the statutory signals. The question presented by the instant case is whether, under the facts as shown by the record, a jury should be allowed to find that the crossing is one of unusual danger. In Glanville v. Chicago, Rock Island Pacific Railway Company, 190 Iowa 174, at 180, we said:
"Under what circumstances a railroad company is required to keep a flagman at a crossing, or to maintain some device for warning persons of an approaching train, is not prescribed by statute. It is only to be done when ordinary statutory signals are insufficient as warning to travelers about to make use of a crossing of unusual danger, and the railroad company, in the exercise of ordinary care, is required to give other notice or warning, additional to those ordinarily given. * * * `Whether such omission [omission to give other signals] is negligence depends upon the circumstances, such as the frequency with which trains are passing, the amount of travel, the opportunities, or want of opportunities, for travelers observing the approach of trains, and the like.'"
It will be noted that, in the instant case, the operation of trains upon the defendant's railway was not frequent; the record does not disclose that the travel upon the highway at the point *Page 705
in question exceeds that upon paved highways of like kind and character. After one coming from the north arrives at a point 90 feet north of the track, he has a clear vision of the track to the east, and there is practically no obstruction to the view toward the west. Moreover, it must be borne in mind that the collision in this case was not with the train striking the automobile from either direction, but was the result of the automobile's running broadside into a car in the rear portion of the moving train directly in front of the automobile. We further said in the Glanville case:
"It seems, however, that, before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous."
In O'Brien v. Chicago, Rock Island Pacific Railway Company,203 Iowa 1301, in holding that under the record of that case the question should not have been submitted to the jury, we said:
"We are not unmindful of the rule in this state and other states that, where a railroad crossing is peculiarly and unusually dangerous or hazardous for the traveling public, it is a question for the jury to say whether or not, under this situation, a flagman or other protective device should be kept at such crossing. We have before us evidence as to the character of this crossing and its surrounding conditions. We are aided also by numerous photographs, taken of the situation from various angles, and we must say that, under the evidence in this case, the crossing in controversy was not such a crossing as to come within the purview of the aforesaid rule."
In that case, the approaching engine connected to a train struck the automobile, instead of, as in the instant case, the automobile's striking a car in the rear portion of the train. As in that case, we also have photographs before us which fully show the situation and surroundings, all of which have been carefully inspected by us. The description and view of this crossing, as we get it from the photographs and the testimony of the witnesses, indicate that it is no more dangerous or hazardous *Page 706
than the ordinary railway crossing in any of the small towns in this state. As bearing upon our conclusion, we also cite the following decisions from our sister states: Gulf, M. N.R. Co. v. Holifield (Miss.), 120 So. 750; Philadelphia R. Ry. Co. v. Dillon (Del.), 114 A. 62; Gage v. Boston M.R.R. (N.H.),90 A. 855; Jacobson v. New York, S. W.R. Co. (N.J.), 94 A. 577; St. Louis-San Francisco Ry. Co. v. Guthrie (Ala.),114 So. 215. In the case last cited, the plaintiff therein asked for damages caused by running into a train which obstructed the street in a town. The court, in holding that the defendant company was not liable, said:
"It can hardly be contended with reason that the precautions in respect of which, according to the complaint as thus far stated, the defendant failed in its duty, would be necessary in the daytime. It would seem to be a reasonable corollary that on any occasion, day or night, when the occupation of the crossing would be visible to a traveler using such care for his own safety as the employees of the railroad have a right to presume he will use, in time to allow the traveler to stop before coming into collision with the cars, the railroad ought not to be held liable."
In Gulf, M. N.R. Co. v. Holifield (Miss.), 120 So. 750, the plaintiff instituted suit to recover damages to his automobile, which had been driven into certain freight cars which were standing on and across one of the streets of the city. In holding that the defendant was entitled to a directed verdict, the court said:
"The appellee contends that the employees of the appellant company knew, or in the exercise of ordinary care should have known, that on account of the absence of lights at this crossing and the consequent darkness, the low street with buildings on each side thereof, and dust on the street, and other circumstances in evidence, a person driving on the highway at a reasonable rate of speed in an automobile properly equipped with lights, and carefully operated, would be liable to come into collision with the train, and consequently that under these circumstances it was negligence for this train crew to so leave these cars without stationing a man at the crossing to give warning that it was obstructed by the cars. We are unable to give our assent to *Page 707
this contention of the appellee. The appellant had the right to occupy the crossing for its legitimate business purposes, and while so occupying the crossing it was not required to maintain lights on its cars, or to station a man with a lantern at the crossing to give warning that it was obstructed by the cars, unless the conditions and circumstances were such that the employees knew, or in the exercise of reasonable care and caution should have known, that a person driving upon the street at a reasonable rate of speed in an automobile properly equipped with lights, and carefully operated, could not see or might not be able to see the cars in time to avoid a collision therewith, or, in other words, as said by the Supreme Court of Alabama in the case of St. Louis-San Francisco Railway Co. v. Guthrie, 216 Ala. 613,114 So. 215, 56 A.L.R. 1110: `The employees of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at reasonable speed will observe the cars upon the crossing in time to avoid coming into collision with them.' * * * We are of the opinion that the employees of the appellant as reasonable men had the right to assume that, under all the circumstances shown by this record, the occupation of the crossing by these box cars would be visible to a person who was driving along the street in an automobile properly equipped with lights, and who was keeping a constant lookout ahead, in time to allow such person to stop before coming into collision with the cars, and consequently that the proof in this case fails to show negligence on the part of the appellant. For authorities in harmony with the views herein expressed, see the cases of Gilman v. Central Vermont R.R. Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102; Gage v. Boston Maine R.R. Co., 77 N.H. 289, 90 A. 855, L.R.A. 1915A, 363; McGlauflin v. Boston Maine R.R. Co.,230 Mass. 431, 119 N.E. 955, L.R.A. 1918E, 790; Orton v. Penn. R.R. Co. (C.C.A.), 7 F. (2 Ed.) 36; St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110."
In Philadelphia R. Ry. Co. v. Dillon (Del.), 114 A. 62, the plaintiff sought to recover damages by reason of driving his automobile into a train of cars which was standing across the street in a city. The court, in holding that the defendant was not liable for negligence said: *Page 708
"Here, then, the railroad company had a right to assume that the plaintiffs would act in a reasonable way to avoid running into the train of box cars while it was lawfully standing across the highway. If the defendant's trainmen had a right to assume that a reasonably careful man driving an automobile on a highway at night would use such lights and adopt such a rate of speed as that he could bring his machine to a standstill within the distance that he could plainly see by the lights on his machine a railroad box car twelve feet high standing across the highway motionless on a railroad track, and completely obstructing his passage along a straight unobstructed highway, then the defendant did not then omit to perform any duty by not showing lights, or giving other warning of the presence of the train. * * * `We are of opinion that upon the evidence the conditions shown were not such as to warrant a finding that the defendant was negligent in failing to provide lights or a flagman, or to give other warning.' * * * It, therefore, follows that if the defendant wasnot negligent it cannot be held liable for the injuries to eitherthe driver or his guest in his private machine, whether thedriver was careful or negligent." (Writer's italics.)
In Gage v. Boston M.R.R. (N.H.), 90 A. 855, the plaintiff asked damages occurring by reason of the driver's having run the automobile into a slowly moving train. In holding that the defendant company was not liable, the court said:
"What duty did the defendant owe to the plaintiffs at the time of the collision which it failed to observe, and the breach of which was the proximate cause of the injuries they suffered? The burden was on them to prove that the defendant was negligent in its management of the train at the crossing, and that its negligence in that respect was a proximate cause of the collision. At the trial the plaintiffs' contention was that the defendant's negligence could be found from its omission to provide gates with lights at the crossing, or in not having at that place a crossing tender to warn travelers that the crossing was occupied by the train. There is no contention that theseprecautions would be necessary in the daytime, or at any timewhen the occupation of the crossing by one or more cars would bevisible to a traveler in time to allow him to stop beforereaching *Page 709 the crossing. When cars are upon a crossing under suchcircumstances the fact that they are there is a sufficientwarning to the traveler upon the highway that he cannot occupythe crossing at the same time. No other signals or warnings arenecessary or required in the absence of a statute imposing sucha duty upon the railroad; * * * (Writer's italics.) The plaintiffs were not injured by being run into by the defendant's locomotive, but by running into the defendant's freight car as it was slowly passing over the crossing. * * * If the defendant through its agents, the trainmen, in the reasonable management of its train, which was rightfully on the crossing, is not chargeable with knowledge that an automobile, bearing headlights of sufficient power to enable the chauffeur to avoid any obstruction in the road, was yet likely to crash into the train unless a danger signal or flagman with a lighted lantern was stationed in the highway by the side of the train, its omission to provide such safeguards for the plaintiffs' benefit was not the proximate cause of their injuries. * * * In order to charge the defendant, it must be found from some substantial evidence that its servants, in the exercise of ordinary care, would have understood that they were maintaining at the crossing an obstruction which, on account of the darkness, was a dangerous obstruction to people riding in an automobile, driven at a reasonable rate of speed and equipped with strong lights. To hold that such evidence exists in this case is to overturn the rule that a verdict based upon conjecture cannot stand * * *."
It must be borne in mind that plaintiff's action is founded upon negligence. There was no omission on the part of the defendant company to perform the statutory requirements. Negligence is the doing of something which an ordinarily careful and prudent person, under the same circumstances, would not do, or the failure to do something which an ordinarily careful and prudent person, under the same circumstances, would do. The defendant company is not bound to safeguard against occurrences that cannot be reasonably expected or contemplated as likely to occur. As said in Cox v. Des Moines Electric Light Co., 209 Iowa 931
: "Due care consists in guarding, not against possibilities, but only against probabilities."
Any failure to ward against a result which could not reasonably have been expected is not negligence. Under the record in *Page 710
this case, the question of alleged negligence on the part of the defendant is a question of law for the court. The record fails to reveal any actionable negligence on the part of the defendant company.
The other matters as to which the appellant complains relate to rulings of the court on the introduction of the testimony. All of the same have had our careful scrutiny and attention, and we find no error.
For the foregoing reasons, the judgment of the trial court is hereby affirmed. — Affirmed.
EVANS, STEVENS, ALBERT, De GRAFF, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429966/ | The crucial questions in the case are: (1) Was there a completed gift to the defendant and her mother of *Page 1283
the property sought to be recovered by this replevin suit? (2) was the donor, Park A. Findley, mentally competent to make such gift? Appellant contends that there was not sufficient evidence tending to negative either of these propositions to warrant the court in submitting the same to the jury, and hence the trial court erred in overruling her motions for a directed verdict.
[1] After a very thorough and careful consideration of the evidence, in the light of the prior holdings of this court, we find ourselves irresistibly drawn to the conclusion that appellant is correct in her contention, and that both of these issues should have been disposed of as a matter of law. It is not possible within the proper compass of an opinion to set out the evidence in detail, and we shall not attempt it. Both of the above questions were submitted to the jury. The burden of proving the gift was placed on the defendant, and the burden of proving incompetency was placed on the plaintiff. As to the latter, the jury by its verdict in favor of the defendant as to the money on deposit has, it seems to us, in substance and effect found that Findley was competent. The gift of this money was not consummated by actual delivery until the 27th of April, 1935, when checks for the amount in each of the two banks were made and delivered to Rieka Findley, whereas the transaction constituting the alleged gift of the other property involved in this appeal occurred on the 8th of April, 1935. It was and is the claim of plaintiff that the donor was afflicted with syphilis, and this had caused paresis, — a form of insanity — a mental affliction that impairs the structure of the brain; that this condition existed on the 8th of April, and was of long standing. Therefore, when the jury passed on this matter and found the decedent was competent to make a gift of the money at a later date, there being no evidence of any change for the better, it necessarily follows that it cannot be consistently contended that the donor was incompetent on the prior date, and if he was competent to make a gift of a portion of his property, he was competent to dispose of all. There was no appeal from the verdict in defendant's favor sustaining the gift of the money.
[2] But we need not base our conclusion on this verdict alone. The evidence as we view it is so conclusively in support of mental competency, and there being no evidence by which the jury could be guided as to the degree of mental impairment, or evidence that such claimed impairment was such as to render the donor incompetent to make a valid gift, this issue as a matter of *Page 1284
law must be settled in favor of defendant. Likewise, the evidence relating to the gift of the property in dispute lacked none of the essential elements necessary to establish a completed gift inter vivos. The evidence is clear, cogent, definite and convincing and leaves no room for any doubt whatever that the donor intended to make, and did make, such a gift. There being no conflict in the evidence on this subject, there was nothing for the jury to pass upon.
[3] As a background for the picture presented by the facts, it should be stated that there is no claim in the pleadings of fraud, either actual or constructive, no claim of the existence of a fiduciary relationship. Neither is there any proof of such, and while undue influence was alleged in the reply, there was no evidence which even tended to support such allegation, and the court properly withdrew this issue from the jury. Very briefly let us look at Findley, the man, and then see what took place, as shown by the evidence.
At the time of his death, Park A. Findley was 60 years of age. By profession he was a physician and practiced his profession in Des Moines until 1922. His first wife, Laura A. Findley, died August 10, 1933. He had no children. After his first wife's death he made his home with his aged mother and sister, Rieka, a single woman, employed for many years in the legal department of the city administration of Des Moines. He had one brother and another married sister. In 1922 he was elected sheriff of Polk County, and served until 1930. On January 1, 1933, he was appointed by the newly elected attorney general, Edward L. O'Connor, to the position of chief of the bureau of criminal investigation of the State of Iowa, which he held until his death. At the time of his death he held the rank of Brigadier General in the National Guard and commanded the 57th Cavalry Brigade. Just prior to his death he was tentatively selected by the adjutant generals of six states for promotion to the rank of Major General in command of the 24th Cavalry Division, composed of the National Guard Cavalry troops from six states. Apparently he had been in failing health for some time and about the first of April, 1935, he obtained from the attorney general's office permission to take a sixty-day leave of absence, and planned to make an extended trip through several states for the purpose of recuperating his health. His brother, John, a contractor residing in Manilla, in the Philippines, who had not seen his *Page 1285
brother for several years, planned to meet General Findley and accompany him at least on a part of this tour. Before starting on this long journey, Gen. Findley went to Hill's Retreat, a sanatorium for the treatment of nervous and mental diseases, located in the city of Des Moines, and managed by one Dr. R.C. Doolittle, for the purpose of taking a rest. He did not go there for treatment. He remained in this institution from one o'clock a.m. on April 6, 1935, until 7:45 a.m. on April 9, 1935. Glen L. Schmidt, one of the several state agents working under Chief Findley, who was in communication with his chief almost daily, and was to be placed in the position of acting chief in the absence of Findley, called at Hill's Retreat on the 6th or 7th of April on his usual daily visit, and at that time Mr. Findley asked Schmidt to make arrangements with Walter Maley, and his sister, Rieka Findley, to meet him there on the evening of the 8th of April. Maley was then first assistant attorney general and had charge of the criminal causes in the supreme court and other matters of this character which might come up in the attorney general's office, of which office the bureau of criminal investigation was a coordinate part. They met as per arrangements thus made. After some general conversation, which is not set out in the evidence in detail, Maley asked General Findley if there was any business that he had especially in mind, either in the department, or any business interests of his own he wanted to take care of before he left on this long trip — which would be attended with more or less hazards — and Findley said the one thing he did want to do before he left was "to give to his mother and to his sister the contents of two lock boxes that he had, one in the Iowa-Des Moines National Bank and one in the Valley Savings Bank, or national bank (the name appears both ways in the record), that he intended that Rieka and his mother should have it all some day anyway, and he would rather give it to them before he left." He asked Maley if there was any formality he would have to go through to accomplish this purpose. Maley informed him that perhaps all that was necessary was an order on the banks to turn over the contents of the lock boxes to his sister. Findley went to a small dresser in the room, got two sheets of blank paper, handed them to Maley and asked him to prepare such orders. Two separate orders were prepared as follows:
"4/8/35. I hereby authorize bearer, Rieka Findley, to open *Page 1286
my safety deposit box 1223 Valley Nat'l Bank and to withdraw contents therefrom. (Signed) Park A. Findley ------------------ "Park A. Findley"
The other order is the same, except it bears a different box number and the name of the bank is the Iowa-Des Moines National Bank. These orders were identified and introduced in evidence as Exhibits A and B. The signature on the line was made by the decedent, and the name under the line was written there by Mr. Maley before handing the paper to Findley. Findley sat on the edge of the bed as he wrote his name.
These lock boxes were owned jointly by Park A. Findley and his sister, Rieka. They each had keys to these boxes. After signing these orders, Exhibits A and B, Findley took his keys, handed them to his sister Rieka with the written orders and said to her: "These are my keys and you have your own, Rieka. I wish you would go to the banks in the morning and get the contents of each of the boxes and call me from down town (Rieka worked down town). I will be at mother's, and let me know you do have the contents of both boxes before I leave town." This was all in the presence of Maley, Schmidt, and Miss Rieka Findley. The next morning she went to the banks with the written authority above referred to, presented them at the banks and the bank officials turned the contents of these two safety deposit boxes over to her. Schmidt's version of the inquiry Findley made was: "He (Findley) asked Maley just what he would have to do to release some property as a gift to his sister and mother." The remainder of Schmidt's testimony is substantially the same as Maley's. This witness also testified that in relation to all the arrangements and preparations for the trip, General Findley issued his own orders.
That Findley understood what he had done, and that he intended it as a gift is emphasized by the testimony of two or three witnesses who related conversations with Findley after the gift was consummated. Morris Hanson who drove Findley on his trip stated in substance that while they were eating dinner at Excelsior Springs the evening of the first day out, Findley said that he felt quite relieved to get away from Des Moines, from his official duties at the State House as chief of the bureau of investigation; that he had nothing to worry about financially; that he had turned over everything he had in the way of property *Page 1287
to his sister and mother; that he had money to travel on and was going to take a good rest and felt quite relieved not to have the telephone ringing and anybody bothering him. This same witness related another conversation between Park Findley and his brother, John, after John had joined them at San Antonio, Texas, in which the General said that he had provided for his sister and mother by turning over his property to them. While at San Antonio, Texas, Park Findley was under the care of a nurse a portion of the time, a Miss Gladys Brown. She related a conversation which she heard between these two brothers, in which Park told his brother that "everything I have, I have given to Rieka and to my mother." She heard this talk more than once. She said the question of money came up more than once. She was then asked if she had any conversation with General Findley in which he said anything concerning his property, and she answered: "Yes, oftentimes, I read letters from his sister to him, and she was discussing — Q. What did he say? A. He said, `I have given everything that I have to my sister; she is going to take care of things for me.'" The brother, John, related a conversation he had with his brother, and he was asked: "During your visit with Park Findley, did he make any statement to you concerning his property?" and the witness answered, "He told me he had given everything to Rieka and mother, Rieka for mother, both of them, everything he had. He wanted to know if it was satisfactory with me and I told him it was satisfactory and a fine thing for him to do, for a man in his condition."
Morris Hanson testified to a conversation which he heard between Rieka and General Findley at Peoria, Illinois, at the time Rieka had gone there to try to persuade her brother to come home. He stated in substance that Rieka thought that he had been gone long enough and might as well come back to Des Moines, and Findley answered that he didn't care to come back to Des Moines, that he had given her all of his property and he did not want the responsibility of the office over at the State House, and he wanted to take a trip, and he knew that any time that he might need some money, or anything for his own expenses, that she would give him some. On cross-examination the witness reiterated this statement and further said that Findley stated he was glad to be relieved of the responsibility and knew that he *Page 1288
could have money to travel on, that his sister, Rieka, did furnish him money to travel on.
On April 27, 1935, checks were issued by Park A. Findley, payable to the order of Rieka Findley, for the amount of money on deposit in the two banks. These checks were delivered to her and she cashed them and deposited the money on the 30th of April, 1935, in the name of "Rieka Findley, Trustee." Park Findley continued on his journey, going to Chicago and later to Miami, Florida, where he married Miss Grace Miller on June 3, 1935, and they returned to Louisville, Kentucky, where Park Findley died on the 13th of June, 1935. The immediate cause of his death is not shown in the record.
There is no contradiction or dispute anywhere in the record of the foregoing facts. We are at a loss to see what there is here for a jury to pass upon. Certainly it was a matter for the court to determine whether the foregoing facts constituted a gift. The matters which the appellee points out as making a question for the jury, as we view the record, are without material substance. He calls attention to the signature on the orders, Exhibits A and B, and as he interprets the signature, the name Findley is spelled "Findlery" or "Findlury". There seems to be one too many letters or characters in the name, but when compared with the name on the checks there doesn't seem to be any material difference. The writing is in a very good hand. Furthermore, the orders were presented to the two banks. The bank officials knew Park Findley's signature. They did not hesitate to act upon the authority over this signature and turn over to Rieka Findley over $100,000 worth of property. Appellee also calls attention to the unusual act of turning over all of one's property at the age of sixty years, and the change in the disposition of his property from that contained in his will. In the absence of any showing of any influence interfering with the free and voluntary act of the donor in making such disposition of his property as he saw fit, these matters have no bearing on the question. Furthermore, the will was only admitted as bearing on the question of mental competency.
It should be remembered that Park A. Findley had no wife or children. His mother was his only direct heir. While his first wife was living, she and his mother were the ones to whom his property would legally descend, should they survive him. Likewise, they would be the natural objects of his bounty. That he *Page 1289
so considered them is shown by his will executed in 1932 before his first wife's death. By this will he gave his mother one-third of his property, and placed the remaining two-thirds in trust for his wife, with the further provision that should his wife not elect to take under the will, then she should have one-third, and the mother, if living, the remaining two-thirds. At the time he made this gift, his first wife had been dead almost two years, since which time he had made his home with his mother and his sister, Rieka. The natural object of his bounty was still his mother, and how natural to include the sister who was at home looking after her aged mother, and who had helped make him a home in recent years, and whose conduct, as disclosed by this record, is shown to have been that of a devoted sister, which devotion, care and solicitude for her brother continued to the end of his life. The gift of practically his entire property should be considered in the light of the statement made at the time, that he knew that she would let him have whatever money he needed, and the record is that she did send him money when called upon to do so, showing that his trust in her was not misplaced, and that he was not mistaken in his judgment of his sister. In this state there is no law denying a man in his situation the right to dispose of any part or all of his property during his lifetime, among such of his relatives as he may see fit, and there is nothing in this gift contrary to public policy or good morals.
The fact that in his will he included among his residuary legatees his other sister and brother and did not include them in this gift in no way tends to mitigate against the validity of a gift, and this brother and sister apparently are perfectly satisfied — at least the brother so expressed himself — and the gift as made, insofar as the donees are concerned, is a perfectly natural thing any normal man might do.
Another matter relied upon by appellee is the statement of the nurse, Miss Brown, that in one of the conversations in which Park Findley stated that he had given everything to his sister, Rieka, he added this statement: "She is going to look after things for me." The construction appellee seeks to place upon these words "look after things for me" is entirely inconsistent with what was actually done. If Rieka Findley was merely to manage Park Findley's affairs, it was not necessary that he surrender full dominion over his property, or that he insist that she remove the contents of the safety deposit boxes or that he turn *Page 1290
over to her his keys. She had keys to these boxes, but when he delivered to her a written order on the banks and surrendered his keys and insisted that she go to the banks and obtain the contents and inform him that she had possession before he started on his trip, he evidenced the clear intention of doing what he later declared on several occasions that he had done, to transfer and deliver to his mother and sister all of his property and surrender dominion over it.
In considering the reasonableness or naturalness of this disposition of his property, which appellee contends was most unnatural for a man only 60 years of age, we must take into consideration the fact that the donor was a physician and probably understood his physical condition better than anyone else, and no doubt knew that in the very nature of things, afflicted as he was, a man of his age could not expect to live and enjoy his property for any great number of years. He very probably knew that the candle which he had burned at both ends was soon to be extinguished.
Another thing which must be considered in passing on the reasonableness of the disposition made of his property is his subsequent marriage to Grace Miller. She was a trained nurse. There can be no question that she knew his physical condition. She was with him for ten days in March, 1935, in Kansas City in a sanatorium where he was being examined, and tests were being made by the physicians; yet despite this knowledge she became the wife of a man so afflicted. Just what may have been the motive prompting the making of this gift of his property to his mother and sister, before starting on his journey through the states, and before venturing upon the sea of matrimony, will remain unknown. It was his right to do as he pleased with his property, whatever the motive.
And lastly, there is this fragment of testimony from Mr. Findley's driver, Mr. Hanson, who said: "He cried quite a bit. He was not the Park Findley he used to be." Counsel, in the heat of debate, snatch this leaf front the album of this man's life and zealously draw the court's attention to it and seek to magnify these tears as evidence bearing upon the invalidity of the gift. This of course was after the gift was made. Furthermore, it should be borne in mind that this busy, active man had cast off his burdens, perhaps for the first time in his entire life, and had set out on this journey to see some of the things of interest which he had *Page 1291
probably always wanted to see. As a physician he undoubtedly knew that his days were numbered; that the earthly ties of affection that for sixty years had been woven into the warp and woof of his life were bound to be severed; that the camp fires were burning low and would soon flicker out, and there would be nothing left but the ashes and cold dead embers. Men, who have been masters and conquerors of every obstacle, sometimes weep when forced by failing health, political or other adversity to surrender their life's work. Ah, yes, even a strong man suddenly relieved of life's burdens, in failing health and strength, as he looks back upon the panorama of his life and gathers together upon the retina of the eye of his soul all the memories of the past, the joys and sorrows, the glories and successes, as well as the follies and failures, and sees what he once was, and now is, and realizes what he might have been — if there is anything left within him of that tenderness and sweetness of life that once caused him to yearn for his mother's arms, if there is anything left within him to cause him to want to cling to life or linger with his friends, if he can still hear the indescribable symphony of life in the world about him, if his soul is not completely dead — he will experience the pangs of heartache, and for such trying hours nature has supplied us with tears. We know not why he wept. If he had but spoken and told all he felt and all his inner vision saw, mayhap we could see something of the heroic and not so much of the ridiculous and cowardly, and could temper our judgment with mercy and sympathy.
All these matters might have more or less bearing on the question if this were a case where the establishment of the gift, the intention to make it or the delivery, dependent upon circumstantial evidence. This is not such a case. We have here express declarations of a desire and intent to give this property to his sister and mother, coupled with the execution of written orders on the banks to deliver the property to the sister, a complete relinquishment of dominion over it by the delivery of his keys to her, her subsequent taking manual possession of said property, Findley's unequivocal statements made to others that he had given all his property to his sister and mother. With knowledge on his part that he had done this and had no money of his own, at no time during the several weeks that he lived after he made the gift did he ever repudiate what he had knowingly done. *Page 1292
Where is there any room for doubt? Why should a jury be allowed to conjecture or speculate about this matter?
Touching the question of mental competency of the decedent to make a valid gift of his property, the record before us presents an unprecedented situation. Here was a man who for fifteen years was in active public life in the metropolis and capital city of this state, and who in the very nature of things must have been well and intimately known by literally hundreds of intelligent men and women, business men and professional men, state, county and city officials, and men connected with the National Guard from all parts of Iowa; yet not one single, solitary person of all his acquaintances was placed on the witness stand by the plaintiff in this case to give evidence concerning his actions, conduct, conversation or business transactions of any kind or character. The plaintiff, George A. Wilson, a lawyer of high standing and integrity (who brought this action not on his own application, but on the application of the woman who became Mrs. Findley only ten days prior to Findley's death), unquestionably knew Park A. Findley intimately, so intimately, in fact, that in 1932 when Mr. Findley wanted a will prepared he went to Lawyer Wilson, in which will Wilson is named as executor and whose name appears as one of the witnesses thereto. Likewise, when in May, 1935, the sister, Rieka, went to Peoria, Illinois, and sought to persuade her brother, Park, to return home, she took with her this same friend of the family, George A. Wilson. If there was anything unusual or abnormal in the everyday life and conduct of Mr. Findley, if there was any mental breakdown, any indication of failure of comprehension of business affairs, Senator George A. Wilson would have known about it. He was not placed on the witness stand.
Then there is Miss Grace Miller, the trained nurse, who married Findley, knowing of his physical condition, who testified that she had known Park A. Findley for five or six years. It is only fair to assume that this acquaintance was more or less intimate, since the record reveals that at least on two different occasions she accompanied him as his nurse and personal attendant. She was undoubtedly capable of discerning between rational and irrational conduct. She was a competent witness as to what she observed, yet while she was placed on the witness stand, her lips remained silent as to anything she observed, bearing on the mental competency or incompetency of the decedent. *Page 1293
In the respects just pointed out, we dare say that this case is without a parallel in the court decisions of this or any other state. With able and astute counsel representing the plaintiff (who is himself a lawyer of ability) is it not fair to assume that in the discharge of their duties to their client and parties in interest these attorneys made at least a reasonable effort to find among all the acquaintances of Mr. Findley someone who was willing to tell what they knew about this man's conduct? Even though such persons might have hesitated to voluntarily take the witness stand because of friendship or other relationship, plaintiff had the power of a subpoena with the authority of the state of Iowa behind it to compel attendance. But none — not one — was produced.
What do we find when we look at the defendant's side of the controversy on this subject of mental competency? We find an array of both lay and medical witnesses, state officials and National Guard officers, and close associates, men whose credibility and integrity stand unquestioned in this record; medical men of high standing and special training, who not only knew Findley personally for many years, but some of whom had treated him professionally, and one was associated with him in business. All were personally acquainted with him and had met him in social and official capacities. They related on the witness stand facts showing ample opportunity to observe him in all the various activities of his life and work, covering a period of many years, and some of them up to the very day the gift in question was made. They each and all testified that from their observations as to his appearance and his conduct and transacting his business they observed nothing in relation to all these matters other than the conduct of a normal man. Included among these witnesses was the Attorney General of Iowa, Edward L. O'Connor, who appointed Mr. Findley Chief of the Bureau of Investigation; Walter F. Maley, Assistant Attorney General, who had charge of criminal appeals; and Carl A. Burkman, present county attorney of Polk County, Iowa, whose term, either as assistant county attorney, or county attorney of said county extends back to the time Findley was sheriff of Polk County. These men, all connected with law enforcement in this state, by reason of their constant contact with the sheriff's office and the department of criminal investigation, would, of course, have every opportunity in the world to observe the conduct of General Findley. *Page 1294
Defendant's witnesses also included leading men at the head of the Iowa National Guard, Gen. Charles H. Grahl, Adjutant General of the state of Iowa, and his assistant Gen. R.A. Lancaster, Major Frank E. Bigelow, Col. Joseph C. King of the United States Army Cavalry, a graduate of West Point detailed by the War Department as instructor of Cavalry in the Iowa National Guard, Capt. Ellis W. Conkling, commanding Headquarters Troop, 113th Cavalry, Glen L. Schmidt, who not only met Findley at camp schools and conferences, but was one of the state agents under Mr. Findley in the department of criminal investigation. These men related their special opportunities to observe him through association with him in their service, attending drill and schools of instruction and working out army problems, in which Findley took part, even up to within a few days of the time this gift was made, and they all told the same story. They saw nothing to indicate that he was other than a man of normal faculties and of sound mind.
There was testimony by four eminent physicians, Dr. F.R. Steelsmith, who had known Park Findley for 30 years; Dr. N.B. Anderson, physician and surgeon, a graduate of the University of Iowa, University of Edinburgh, Scotland, University of Vienna, Austria, who had been in active practice of medicine in Des Moines since 1922 and had known Park Findley since 1920, and since 1930 had been quite closely associated with him in the National Guard, he being commander of the Medical Detachment of the 113th Cavalry, and who had last seen Gen. Findley on the 1st of April, 1935, and had a long conversation with him. Dr. E.A. Hunt, and Dr. R.C. Doolittle, located at Hill's Retreat, 28th and Woodland Ave., Des Moines, Iowa, who had occasion to observe Gen. Findley from the 6th of April until the 9th of April, 1935, during which time Findley was at their institution for rest. They made a general examination of him and observed him while there. These trained men took the witness stand and all testified from personal knowledge gained in the manner indicated that they saw nothing to indicate unsoundness of mind, that his acts and conduct were those of a normal man and they believed him to be of sound mind at the time or times they observed him.
In opposition to this array of witnesses touching the mental competency of the decedent, the plaintiff produced Dr. Duncan of Kansas City, Missouri, who has charge of a sanatorium at that *Page 1295
place. On March 5, 1935, Findley entered this sanatorium where patients go for treatment who are afflicted either with the drug or alcoholic habit. He was there ten days for treatment for the morphine habit, during which time numerous laboratory tests were made, which are all described in his testimony, and from these examinations and tests he testified that Findley was afflicted with syphilis which had caused paresis. He described the germ that causes this mental disease and told how it attacks the covering of the brain and the brain itself and goes on to where it causes this condition known as paresis, operating, as he states, to bring about destruction of the brain and brain mentality, or brings about a mental deterioration. Dr. Duncan described Findley's appearance when he was brought to the institution, supported by a nurse as he came into the hospital, who looked after him and assisted him in dressing and undressing. He noticed some defects in memory, said he would talk about things and then the next time he would not remember whether he had told him about those things at all, he would get muddled at times. He was cloudy at times in reference to things that were happening, or in reference to his treatment and to other things. Whether this was the result of the paresis or the withdrawal of the drug is not made clear. Certainly the doctor's testimony does reveal the fact that he talked to Findley concerning his affliction, that he got the history of the case from him. Findley told him that he had seen an advertisement in a medical journal concerning treatments for the drug habit, and that he came down for that purpose. He told the doctor how he acquired this addiction to morphine, and after he was there awhile the doctor tried to get him to remain longer. The doctor's testimony shows that Findley asserted his legal rights, that his will power was still dominant, he knew what he wanted and was still master of himself and capable of going where he wanted to go and doing what he wanted to do. He told the doctor that he had a friend who was a doctor in Des Moines, to whom he could go for treatment, and that he had some important business to transact. The doctor didn't want him to leave and tried to persuade him to stay, but Findley went. The doctor seemed to place considerable emphasis on the fact that this patient of his wore a gold badge upon which was inscribed Department of Justice. He said he told fantastic stories about trailing criminals across the country. The doctor said he didn't know he had been sheriff of Polk County and was *Page 1296
actually the chief of the Bureau of Criminal Investigation of Iowa, didn't know anything about his record as sheriff of Polk County or in the department, but when asked whether had he known this he would still have believed the stories to be fantastic, he revealed somewhat his partisan spirit by replying, "Yes, in the way he told it." Yet there isn't a particle of evidence in the record that these stories he told were not true.
[4] Based upon Dr. Duncan's testimony, two other eminent physicians and specialists in psychiatry, Dr. A.R. Stewart of Independence State Hospital and Dr. R.D. Smith, superintendent of the Clarinda State Hospital, in answer to a hypothetical question in which was included the result of the laboratory tests and the testimony of Dr. Duncan and some other matters, including the manner of the disposition of his property by will in 1932, and other matters heretofore referred to, testified that in their judgment and opinion Findley was of unsound mind on the 8th of April, 1935, Dr. Stewart saying that this condition had been of long standing, and Dr. Smith saying that it had been coming on for some little time. Nowhere in the testimony of Dr. Duncan or of these two opinion experts is there any attempt to state the degree of the mental impairment brought about by this disease, or to state the effect such impairment would have upon the patient's ability or competency to comprehend or understand the extent of his property and the disposition he desired to make of it, the objects of his bounty, etc. Mental weakness due to disease does not deprive one of capacity to dispose of his property until it has progressed to the extent that the power of intelligent action has been destroyed. Bishop v. Scharf, 214 Iowa 644, 652,241 N.W. 3. This burden was on the plaintiff. In our opinion he failed utterly to meet it.
As we stated at the beginning of this opinion, paresis, being a form of insanity which is of permanent character, would be presumed to continue, and in the absence of any evidence that there was any change for the better from the time that he made the gift on April 8, 1935, until April 27, 1935, when he made a check to his sister for the money on deposit, and the jury having found that he was competent on the later date, it would seem to be rather conclusive against the appellee's contention that he was incompetent to make a gift of the contents of the safety deposit boxes. But aside and apart from the finding of the jury, we are abidingly satisfied that there is no evidence in this case *Page 1297
to show that Park Findley's mental impairment or unsoundness of mind had reached that degree which incapacitated him from making a valid gift of his property, and that being the case, the motion to direct a verdict in appellant's favor should have been sustained. Re Estate of Fitzgerald, 219 Iowa 988, 259 N.W. 455. Neither contracting nor testamentary capacity requires entire soundness of mind. Jones v. Schaffner, 193 Iowa 1262,188 N.W. 787. All paretics are not incapacitated to intelligently transact business. In the case of Rickman v. Houck, 192 Iowa 340, 347,184 N.W. 657, 660, the court in the opinion quoted from the testimony of one of the medical experts on this subject as follows:
"I would not say that a paretic was insane previous to the time it manifested itself in excitement and extreme nervousness. We have had paretics who conducted battles in the navy that have settled questions of international import. I have had paretics under my own observation that have bought and sold large stocks of goods," etc.
[5] The rule in this state with reference to the court directing a verdict is not whether there is literally no evidence, but whether there is any evidence which ought reasonably to satisfy the jury that the fact is established. 64 C.J. page 302, par. 317.
In the case of Bales v. Bales, 164 Iowa 257, at page 275,145 N.W. 673, 680, this court made the following pronouncement:
"The rule governing the court in the disposition of a motion for a directed verdict at the close of the evidence is that it is not the duty of the court to submit the case to the jury because there is some evidence introduced by the party having the burden of proof, unless that evidence is of such a character that it would warrant the jury in finding a verdict in favor of the party introducing such evidence. Before the question is left to the jury for its determination, the preliminary question for the court is whether there is any evidence to support the verdict, and if so, whether upon such evidence the jury can find a verdict for the party producing it that will stand. * * * It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence in support of the case, but it is now settled that the question for the judge is, not whether there is literally no evidence, but whether there is any that ought *Page 1298
reasonably to satisfy the jury that the fact sought to be proved is established. * * * `Our conclusion is that when a motion is made to direct a verdict, the trial judge should sustain the motion when, considering all of the evidence, it clearly appears to him that it would be his duty to set aside a verdict if found in favor of the party upon whom rests the burden of proof.'"
This rule announced in Bales v. Bales, 164 Iowa 257,145 N.W. 673, was reiterated by this court in the recent case In re Will of Diver, 214 Iowa 497, at page 509, 240 N.W. 622.
The evidence in the Bales case and in the Diver case of unsoundness of mind was far stronger than in the instant case, and in the Bales case this court, after reviewing the evidence stated that a verdict for the contestants would not have support in the evidence sufficient to maintain a verdict in their favor based thereon. In the Diver case at the close of all the testimony the court sustained proponent's motion for directed verdict in her favor, and this court said, after reviewing the evidence and the authorities, 214 Iowa 497, at page 511,240 N.W. 622, 628:
"Upon the whole case, there is not sufficient evidence on behalf of the contestants to carry the case to the jury. Any verdict which might be returned in favor of the contestants must necessarily be set aside for want of proper support in the evidence."
In both of said cases the record showed mental deterioration and impairment of the brain itself, and the medical experts in answer to hypothetical questions gave it as their opinion that the testator was of unsound mind. Many other cases might be cited along the same line, but these two are especially mentioned because of the presence in the record of the evidence of medical testimony, and for the purpose of showing that in this state, the fact that medical experts in answer to hypothetical questions state that a person is of unsound mind does not necessarily make a jury question. Without in any way intending to minimize the value of scientific investigation, or to cast any aspersions upon the medical experts, we think it must be said that to warrant a court or jury in overthrowing one of the most important acts of a man's life — that of disposing of his property as he wants it to go — there should be something more than the mere results revealed by a laboratory test tube. These tests are, of course, *Page 1299
invaluable in determining the absence or presence of syphilis or paresis. Manifestly, the question of whether the disease had progressed to the stage of mental impairment which incapacitated its victim in the transaction of the business in hand would not be disclosed by the test tube, and could only be determined from his acts and conduct.
[6] In both the printed and oral arguments, much time was devoted to the subject of burden of proof, and we perhaps should state our conclusion with reference to this matter. Being a suit in replevin, the gist of the action was the immediate right of possession, and the burden was on plaintiff to establish this, and this burden remained upon the plaintiff throughout the trial. Courtright v. Deeds, 37 Iowa 503; Hamilton v. Iowa City Nat. Bank, 40 Iowa 307; Peake v. Conlan, 43 Iowa 297; Cumberledge v. Cole, 44 Iowa, 181; Wallace v. Wallace, 62 Iowa 651, 17 N.W. 905; Hillman v. Brigham, 110 Iowa 220, 81 N.W. 451.
[7] Under the defendant's general denial, any evidence tending to negative plaintiff's right to possession was competent; hence he was entitled to introduce evidence of gift under general denial. Whitaker v. Sigler, 44 Iowa 419; Gardner Butters v. Builders Material Co., 190 Iowa 443, 180 N.W. 188; Conway v. Alexander, 200 Iowa 705, 205 N.W. 351.
Counsel for appellee made a strenuous effort to force the defendant into a position which would cast the burden upon her, but defendant's counsel refused to be drawn into the net, and nowhere in their pleadings did they set up an affirmative defense, and appellee's contention that there was a voluntary paper issue is not sound. There can be no affirmative paper issue of gift if evidence of gift is admissible under the general denial. The effort of appellee to force the appellant into a position where she would be compelled to take the affirmative, or where the burden of final persuasion would be upon her, was to bring the case within the rule of Roberts v. Morse, 190 Iowa 1344,181 N.W. 678, but that case is distinguishable. In that case there was an affirmative defense of gift, and the defendant did assume the burden. This was also true in the case of Adamson v. Harper, 162 Iowa 56, 143 N.W. 844.
[8] The phrase "burden of proof" has two meanings, one to express the idea that a named litigant must in the end establish a given proposition in order to succeed; the other, to express the idea that at a given stage in the trial it becomes the duty of a *Page 1300
certain one of the parties to go forward with the evidence. Vol. 1, Words Phrases (3d Series) 952; Hansen v. Oregon-Washington R. Nav. Co., 97 Or. 190, 188 P. 963, 969, 191 P. 655.
This matter is thoroughly discussed by our own court in the case of Gibbs v. Bank, 123 Iowa 736, at page 742, 99 N.W. 703,706, wherein it is stated:
"It is clearly a misnomer of terms to say that the burden of proof swings like a pendulum from one side to the other during the progress of a trial. All that is meant is that the duty of introducing evidence to meet a prima facie case shifts back and forth."
See, also, Brogan v. Lynch, 204 Iowa 260, at page 262,214 N.W. 514. This matter is quite ably discussed in 1 Am. Jur. page 764 in connection with the subject of advancements, and is quoted with approval in In re Wiese's Estate, 222 Iowa 935,270 N.W. 380.
[9] There is also much said in argument with reference to the effect of presumptions; but presumptions have little place in a case such as we have here, where eyewitnesses related what was said and done. Presumptions disappear in the light of actual facts. See Brogan v. Lynch, supra.
[10] The evidence is so clear and unequivocal on the question of gift and is entirely undisputed and the jury having in effect found that the donor was mentally competent, we are of the opinion that this record presents a situation where the court should not only reverse, but should direct the trial court to enter judgment sustaining appellant's motion for a directed verdict at the close of all the testimony. This is not an appeal alone from an order overruling a motion for new trial, but the appellant contested every step of the road and took exceptions to the court's ruling at every stage of the proceedings; in overruling her motion to direct at the close of plaintiff's testimony, and in overruling a similar motion at the close of the plaintiff's testimony in rebuttal, and at the close of all the testimony. Under the provisions of section 12871 of the Code, the court may reverse, modify, or affirm the judgment, decree, or order appealed from, or render such as the inferior court should have done. See Stoner v. Ins. Co., 220 Iowa 984, 263 N.W. 46, and cases therein cited. The appellee presented his case. He was not denied the introduction of any evidence offered. There is nothing to indicate *Page 1301
that the evidence on a new trial on the question of gift would or could be other than as set out in this record. Plaintiff sought to base this case entirely upon the expert medical testimony. This evidence having been held insufficient by this court upon which to base a verdict, it is only just and proper to direct the trial court accordingly. Any other rule is an invitation to an unscrupulous litigant to produce even false testimony on retrial to take the case to the jury. Each party has had his day in court, has fully tried his case, has all the facts before the court necessary to determine the case, and the case should be determined on this record.
The case is accordingly reversed and remanded with instructions to sustain the appellant's motion to direct a verdict in defendant's favor, and enter judgment against the plaintiff for costs. — Reversed and remanded with instructions.
DONEGAN, PARSONS, ANDERSON, STIGER, and SAGER, JJ., concur.
MITCHELL and RICHARDS, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429968/ | On November 4, 1931, Henrietta L. Wilson commenced an action in the district court of Appanoose county against Ben Adams. The petition, as amended, is in three counts. On April 1, 1932, the defendant Ben Adams filed a motion for a change of venue from Appanoose to Monona county. This motion was supported by the affidavit of the defendant affirming that he is a resident of the latter county. A few days later, the plaintiff Henrietta L. Wilson filed an amendment to her petition, making Stella Adams, the former wife of Ben Adams, a party defendant. The defendant Ben Adams amended his petition for change of venue, attaching thereto his own affidavit to the effect that Stella Adams is a resident of Polk county and also a portion of the transcript of her testimony in the divorce action, in which it is claimed Stella testified that she then was a resident of Polk county. As a part of the plaintiff's resistance to the motion for a change of venue, plaintiff offered the affidavit of Stella Adams in which certain facts are stated as to her residence and, in substance, claiming her residence in Appanoose county.
One of the remaining grounds relied upon by the plaintiff in resistance to the motion for change of venue, is that plaintiff's action is based upon a written lease signed by both Ben and Stella Adams, and that it was to be performed in Appanoose county. In count one of the petition, recovery is asked for rent for the leased premises and for certain items of account, some of which were stricken on motion of the defendant. Count two alleges a cause of action upon several items of account, and also asked recovery for damages. In count three numerous items are referred to, and, in addition thereto, judgment is asked for $225 for damages resulting from the tearing down of a cattle shed and to a barn located on the leased premises. The motion for change of venue was overruled, whereupon this original proceeding in certiorari was commenced in this court.
The three primary propositions relied upon by respondent to sustain the ruling complained of are: (a) that the action against Ben Adams is joined with a resident of Appanoose county, (b) that count three of the petition presents a cause of action for damages to real property, and (c) that the contract, by its terms, is to be performed in Appanoose county.
Section 11039 of the Code of 1931 fixing the place for the commencement of actions is as follows: *Page 1367
"Should such action be brought against a resident of this state in any other county than that of his residence, he may have the place of trial changed to the district court of the county wherein he resides, in the same manner and upon the same terms as provided in section 11053, and the property attached shall not be released because said action was brought in the wrong county, but shall be held and subject in the same manner as if said action had been brought in the county of defendant's residence."
Section 11049, which is material to this controversy, is as follows:
"Personal actions, except as otherwise provided, must be brought in a county in which some of the defendants actually reside, but if neither of them have a residence in the state, they may be sued in any county in which either of them may be found."
Section 11035, which fixes the place of commencing actions for injuries to real property, is as follows:
"Actions for injuries to real property may be brought either in the county where the property is, or where the defendant resides."
It is conceded by the respondent that the petitioner Ben Adams is a nonresident of Appanoose county and a resident of Monona county. Numerous propositions are argued by counsel which, in view of the conclusion reached, we deem it unnecessary to discuss. The motion for change of venue was filed before answer, and the claim of waiver urged by respondent is without merit. Kosman v. Thompson, 204 Iowa 1254, 215 N.W. 261.
[1] One of the remaining propositions urged by petitioner is that no cause of action is pleaded against Stella Adams, and that, while she did sign the lease, it, in truth, imports no liability against her. This question cannot be properly raised on certiorari. Armstrong v. Borland, 35 Iowa 537.
The question whether she was in fact a resident of Appanoose county was submitted to the trial court upon affidavit, as previously stated. This was a question of fact which had to be determined upon the proof filed by the respective parties. If Stella Adams is a resident of Appanoose county, then, under the statute already quoted, the action was properly brought therein. It is provided by section 12456 that: *Page 1368
"The writ of certiorari may be granted when authorized by law, and in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy."
Stella Adams has not asked for a change of the place of trial. This is material only in so far, if at all, as it has bearing on the right of petitioner to have such change. The affidavit of Stella Adams is equivocal, and the court could, we think, properly have found that she is not a bona fide resident of Appanoose county. Such finding must, however, have been based upon the proof introduced. The ruling of an inferior tribunal, board, or officer exercising judicial functions may be reviewed on certiorari in this court when such inferior tribunal, board, or officer has exceeded his proper jurisdiction or has otherwise acted illegally. The question here presented is not alone whether petitioner is a nonresident of Appanoose county. That is conceded. If he is joined in the action with a resident of Appanoose county, the action was properly brought therein; that is to say, if it were admitted that Stella Adams is a resident of Appanoose county, the motion for a change of the place of trial would have to be overruled. This is not only not admitted, but it is controverted by the affidavit of Ben Adams. An issue of fact or of law was therefore presented to the court for decision. Both parties invited the court to rule on the fact question. Clearly the court had jurisdiction to rule thereon. Did it by overruling the motion otherwise act illegally? It is well settled that this court will not review the erroneous ruling of an inferior officer or body on certiorari. Iowa L. T. Co. v. District Court,149 Iowa 66, 127 N.W. 1114; Lex v. Selway Steel Corporation, 203 Iowa 792,206 N.W. 586; Holcomb v. Franklin, 212 Iowa 1159,235 N.W. 474; Ryan v. Hutchinson, 161 Iowa 575, 143 N.W. 433; Tiedt v. Carstensen et al., 61 Iowa 334, 16 N.W. 214; McEvoy v. Cooper,208 Iowa 649, 226 N.W. 13. Likewise, questions of fact will not be determined on certiorari. Tiedt v. Carstensen, supra; McEvoy v. Cooper, supra. The remedy in such case is by appeal. Kell v. Lund, 99 Iowa 153, 68 N.W. 593; Wagner v. Glick, 177 Iowa 623,159 N.W. 233; Bennett v. Carey, 57 Iowa 221, 10 N.W. 634; Mayer v. Woodbury Strahm, 14 Iowa 57.
The ground upon which the court overruled the motion is not shown in the abstract. It may have been either upon the ground *Page 1369
that Stella Adams is a resident of Appanoose county or that because the action pleaded in count three is to recover damages for injuries to real estate. Whether the conclusion reached was erroneous or not, the court did have jurisdiction to find that the residence of Stella Adams is in Appanoose county. The conclusion reached may have been ever so erroneous, but it was not in excess of the court's jurisdiction or otherwise illegal within the meaning of section 12456 of the Code.
II. It is difficult to accurately determine whether the cause of action alleged in count three is based upon contract or is for damages to real property. It is clear that the specific relief prayed is, in part, for damages. The court could have properly so found. The question suggested may not be determined on certiorari. Clearly the court had jurisdiction to find that the relief sought was for damages to real property. Such actions may be prosecuted in the county where the real estate is situated. The motion for change of venue is of the action as a whole. Whether, so far as this question is concerned, the motion should have been sustained to the remaining counts of the petition, we have no occasion at this time to determine.
[2] III. The written lease signed by petitioner and Stella Adams does not, in terms, provide a place of performance. This is sought to be established by implication. This cannot be done. The writing must so provide in express terms. Bechtel v. District Court of Worth County, 215 Iowa 295, 245 N.W. 299; Baldwin v. Munger, 200 Iowa 32, 204 N.W. 417; Wixom v. Hoar, 158 Iowa 426,139 N.W. 890.
Petitioner may ultimately have his right to a change of venue determined on appeal should plaintiff recover upon the trial of the cause of action. This remedy is adequate.
Further discussion of the questions argued is unnecessary. It follows from what has already been said that the writ must be, and it is, dismissed. — Writ dismissed.
ALBERT, C.J., and MITCHELL, ANDERSON, and KINTZINGER, JJ., concur. *Page 1370 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429974/ | Defendant was indicted for operating a motor vehicle upon the highway while in an intoxicated condition. The verdict of the jury was guilty. Sentence was for four months in jail and a fine of $600. Defendant appeals. While several assignments of error are asserted, they involve but two propositions. First, Was there sufficient evidence to sustain the verdict? Second, Did the court err in permitting a deputy sheriff to testify that defendant declined to submit to a blood test?
I. We find no merit in the contention that the evidence was insufficient to sustain the verdict. The state introduced some eight witnesses who testified to the intoxication of the defendant. Most of the witnesses so testified without objection on the part of the defendant. Such objections as were made to the testimony are not raised as grounds for reversal. Instead, defendant urges only the rulings upon a motion for directed verdict and the motion for new trial, contending that the evidence fails to establish guilt beyond a reasonable doubt and that we should reverse to prevent a miscarriage of justice. A similar argument was urged upon us in the case of State v. Carlson, 224 Iowa 1262, 1264, 276 N.W. 770. The evidence of guilt seems to be more substantial in this case than in that one. We refused to reverse there. Our decision is the same here.
[1] II. The second proposition is not so easily disposed of. It presents a question which has not been directly decided by this court. Defendant relies upon State v. Height, 117 Iowa 650,91 N.W. 935, 59 L.R.A. 437, 94 Am. St. Rep. 323; Wragg v. Griffin,185 Iowa 243, 170 N.W. 400, 2 A.L.R. 1327; State v. Weltha,228 Iowa 519, 292 N.W. 148, and other cases. He contends that the ruling of the court on the admissibility of the testimony of the deputy sheriff violated the constitutional provision against self-incrimination. The decisions relied upon do not require a reversal.
Defendant was not compelled to give evidence of his guilt. All that occurred was that a witness testified, over objection, that defendant declined to submit to a blood test. The court instructed the jury as follows:
"Certain testimony has been received to the effect that during a conversation between the defendant and the witness, *Page 1170
John McCarthy, it was suggested to the defendant that he go to the hospital and take physical treatment and a blood test, and that the same was declined by the defendant.
"You are instructed that there is no law requiring any person, and in this case the defendant, to submit to any blood test; and the fact, if it be a fact, that he declined to so submit himself to such a test, is submitted and should be considered by you only as the same may be a circumstance to be considered by you together with all of the other facts and circumstances developed upon the trial hereof in determining the question as to whether the defendant was or was not intoxicated, at the time in question."
The foregoing instruction was excepted to and the ruling is assigned as error here. The proposition is raised in other ways, but counsel concede that the decisive question is whether the admission of the evidence constitutes a denial of a constitutional protection against self-incrimination. We are of the opinion that the evidence was admissible.
In the early case of State v. Pratt, 20 Iowa 267, 269, Judge Wright, speaking for this court, states:
"It seems that there was testimony tending to show that the prisoner, when arrested, was charged with the theft and made no reply. To this proof there was no objection at the time; but an instruction was asked to the effect that such testimony `could not be used against him'. This was refused, and very properly. The objection could not regularly nor properly be raised in this manner nor at this stage of the proceedings. Then, again, while this character of proof is often entitled to but little weight, there is no rule justifying its entire exclusion. Its value is to be determined by all the circumstances, of which the jury are the peculiar judges. One person may be so confused or embarrassed, so completely taken by surprise by the unexpected and sudden arrest and charge, as, though ever so innocent, to act in a manner strongly indicative of guilt. And yet, another man, cool and self-possessed, may be able at once to command the entire situation, and though the most hardened villain, disarm suspicion and impress those around with his innocence. All these and other circumstances are to be considered. *Page 1171
But the fact that he was charged and made no reply or denial, may properly be shown, the effect thereof being left to the jury. Wharton, 345, note 6; 1 Greenl. Ev., Sec. 215; State v. Perkins, 3 Hawks, 377, 10 Georgia, 511."
The foregoing pronouncement is in accord with later statements of this court. In State v. Beckner, 197 Iowa 1252, 1258,198 N.W. 643, 645, we state:
"There can be no question but that evidence in regard to the conduct of appellant when he was accused of the crime is admissible, and is proper to be considered by the jury in passing upon the question of his guilt or innocence; and it is frequently a strong circumstance in a case."
In the recent case of State v. Johnson, 221 Iowa 8, 19,264 N.W. 596, 601, we state:
"The admission of testimony of the conduct of the defendant at the time he was first accused of the crime was not objectionable. In fact, the rule is, the conduct of the defendant when he is accused of the crime is admissible. 16 C.J. 549, section 1057, says:
"`At least in so far as they tend to connect him with the crime and are not merely self-serving, the conduct and general demeanor of the accused after the crime, his language, oral and written, his attitude and relations toward the crime, and his actions in the presence of those engaged in endeavoring to detect the criminal are always relevant, whether part of the res gestae or not.' This text finds support in State v. Beckner, 197 Iowa 1252,198 N.W. 643; State v. Pratt, 20 Iowa 267."
[2] Of course, when one is accused of a crime, he does not have to reply to the accusation. But if he declines to reply, his act of silence may be shown to the jury. We are of the opinion that the situation now before us is analogous. The request for a blood test did no more than inferentially accuse the defendant of intoxication. His refusal to submit is similar to a refusal to speak. The jury was told that he did not have to submit. The refusal was merely a circumstance to be considered. The court was right.
Defendant did not take the stand in his own defense. He *Page 1172
could not be compelled to testify. Section 13890, Code, 1939. However, the fact that he did not testify was a circumstance to be considered by the jury and was a proper subject for comment by the county attorney. State v. Ferguson, 226 Iowa 361,283 N.W. 917; State v. Stennett, 220 Iowa 388, 260 N.W. 732. His refusal to testify is analogous to his refusal to submit to a blood test. Were we to concede that, pursuant to our decisions in State v. Height, supra, Wragg v. Griffin, supra, and State v. Weltha, supra, defendant could not be compelled to submit to a blood test, that does not mean that his refusal to submit to it cannot be shown and considered. He cannot be compelled to testify. Yet his refusal to testify can be considered and commented upon. If he cannot be compelled to submit to a blood test it is because he cannot be compelled to give evidence. But, since his refusal to give evidence by testifying can be considered, why cannot his refusal to give evidence by submitting to a blood test be likewise considered? We think that it can be.
The only case which has decided the exact question before us is the case of State v. Gatton, 60 Ohio App. 192, 20 N.E.2d 265. In that case the trial court admitted, over objection, evidence of refusal of one, charged with driving while intoxicated, to submit to a blood test. On appeal the conviction was affirmed. The provision of the Ohio constitution [Art. I, section 10] on self-incrimination is as follows: "No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel." While the basis for the decision of the Ohio court is not the same as that given by us, the decision can be readily reconciled with our own.
[3] Our constitution contains no express provision prohibiting self-incrimination. The only constitutional provision that would appear to guarantee such protection is the due process clause. See State v. Ferguson, supra. The statute is section 13890 of the Code, 1939, and provides as follows: "Defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state." Defendant was not called as a witness by the state. He was not even called as such in his own behalf. The statutory prohibition *Page 1173
was fully recognized. We then have the question remaining, Does the due process clause render the testimony of the deputy sheriff inadmissible? We answer, No. It is proper to show the defendant's conduct, demeanor and statements (not merely self-serving), whether oral or written, his attitude and relations toward the crime, if there was one. These are circumstances that may be shown. Their weight is for the jury to determine. The fact that defendant declined to submit to a blood test is such a circumstance. It may be shown. The jury may consider it. The evidence was admissible.
We find no error. The judgment is affirmed. — Affirmed.
STIGER, HALE, BLISS, and WENNERSTRUM, JJ., concur.
MITCHELL and SAGER, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429976/ | I respectfully dissent to the pronouncement made by the majority as to the interpretation of the facts and the law as applied to the facts. This is an action in the nature of a creditor's bill. The plaintiff was the judgment creditor of the defendant Eda Hedges, and when he commenced his equitable action, in conformity to Section 11815 et seq., Code of 1927, he thereby "effectually secured by the filing of a bill in chancery" an equitable lien; "for it has long been the settled doctrine in equity that the filing of such a bill in chancery has the effect of creating a specific equitable lien upon the thing or property sought to be subjected to the execution, for the reason, perhaps, that the commencement of such a suit operates as a lis pendens
notice, and stops all successful alienation of the property in question, and keeps it within the control and jurisdiction of the court." Bridgman Co. v. McKissick, 15 Iowa 260, l.c. 265.
The plaintiff's equitable lien is not only reinforced, but recognized by the very terms of our statute. Section 11817, *Page 277
Code of 1927. The plaintiff, therefore, by the commencement of his equitable action secured a right which the law could not give him, and this is the very foundation and origin of equity jurisprudence. The plaintiff thereby had a superior claim to that of any creditor, "whether senior or junior," because he was the first to "commence his equitable proceeding to reach and subject the property to execution," obtaining thereby "not only a specific lien which will arrest and control the alienation thereof, but which will give him a superior equity on the same for the satisfaction of his claim." Bridgman Co. v. McKissick,
supra. It may be observed at this point, under the facts of the case at bar, that the defendant Wayland A. Hopley was, as an individual, the owner, as an assignee, of a judgment against his codefendant Eda Hedges, and, had he begun an action, as plaintiff did, but prior thereto, he would have had a superior equitable lien, and his rights under the judgment held by him would have been enforcible. In his answer to plaintiff's petition in equity, he pleaded and claimed that he had a right or equity by virtue of his assignment of the annuity in question, and that he had an agreement with Eda that this annuity had been assigned to him to satisfy his assigned judgment against Eda. Neither plea nor agreement was denied by Eda in any manner. Who, then, claims that Eda did not have an equitable interest under the reservation of the deed executed by Peter Hopley to Wayland Hopley of the land in question? Does Wayland Hopley? Certainly not. Does Eda herself? No. It is quite obvious that, when she finally renounced, it was simply for the purpose of defeating the plaintiff judgment creditor, and it was a fraudulent act on her part to attempt to renounce some 19 months after the commencement of this action by plaintiff, during which time Eda was bound to know, as a matter of law, that the plaintiff judgment creditor had an established specific equitable lien on her definite and fixed rights and equity which she then and there did have.
The facts disclose that, on January 14, 1922, Peter Hopley, a resident of Cass County, Iowa, executed and delivered in escrow a deed to his son, Wayland A. Hopley, covering a large tract of farm land in Cass County. Upon the death of Peter, in March, 1926, the deed was delivered to the grantee, and filed for record by him on the 22d day of May, 1926. *Page 278
The appellee Eda Hedges is the daughter of Peter Hopley and the sister of Wayland A. Hopley, grantee. The deed contained the following clause, material to the consideration of this appeal:
"Also subject to grantee, herein, his heirs or assigns paying to Wayland A. Hopley, trustee, for the benefit of Eda May Hedges, the sum of twenty-five thousand dollars ($25,000) within ten years after the death of the grantor herein, with interest thereon at five per cent per annum from and after March 1st following the death of said grantor herein, payable annually on March 1st of each year to said Eda Hedges, during her natural life and at her death the said principal sum of $25,000 shall go to her surviving brothers and sisters share and share alike, said Wayland A. Hopley being named as the trustee of said trust fund without bond as such trustee."
On February 9, 1928, the defendant Eda Hedges signed and acknowledged a renunciation and rejection of "any and all benefits, interests, gifts and annuities which do, may or might accrue to me under and by the terms of a certain warranty deed made and executed by my father, Peter Hopley, on the 14th day of January, 1922, to Wayland A. Hopley," and by said instrument "did renounce, refuse and reject any and all provisions of said deed whether the same merely constituted a contract obligation in my behalf, or as a beneficiary of a trust, either actual, constructive, resulting or implied."
Up to the time of her renunciation, Eda Hedges was in full possession of her rights to this annuity. It was while she was in full possession of her right that the equitable proceedings of the plaintiff established a lien upon that right. She had absolute and uncontrolled ownership of the property or lien in the land, measured by the amount of the annuity.
"As a general rule, it is contrary to sound public policy to permit a person to have the absolute and uncontrolled ownership of property for his own purposes, and to be able at the same time to keep it from his honest creditors." 5 Paige's Ch. Rep. (N.Y.) 583, 586.
At the outset, we inquire what is an "equitable interest" in property? Generally speaking, it is some definite right or interest in the property such as will furnish ground for equitable *Page 279
relief against the trustee or any person asserting a hostile right or interest. Curtis v. Reilly, 188 Iowa 1217. See 3 Words Phrases (3d Ser.) 309. The eminent Pomeroy, in his masterful work on Equity Jurisprudence, states:
"Equitable primary rights, interests, and estates may exist in things real and in things personal, in lands and in chattels." 1 Pomeroy's Equity Jurisprudence (3d Ed.) 167, Section 146.
In citing some of the important kinds of equitable liens which are recognized as following under this branch of jurisdiction, he includes "those resulting from charges on property by will or by deed." Ibid. 192, Section 167.
It may be observed, in the consideration of this cause of action, that we are not dealing with a garnishment proceeding, or with any of the applicable rules or statutes in relation to such a proceeding. Garnishment is purely statutory. See Malone v.Moore, 204 Iowa 625, with cases cited therein. In the instant case we are dealing with an "equitable interest or right," which is specifically defined and included under the provisions of Section 11815, Code of 1927, hereinafter quoted.
This case is in equity, and not in law; and even though our Code did not contain Section 11815, the fundamental principles of equity jurisprudence would give to the plaintiff herein the same equitable right and remedy. This is made plain by the mere reading of Pomeroy, supra, on Equitable Rights and Remedies.
The primary question for decision is whether or not the trial court, under the instant facts, erred in construing the renunciation by the defendant to be, as to her then existing creditors, a valid renunciation of any right, title, interest, or equity to which the defendant was entitled under the warranty deed. It must be borne in mind that the deed of Peter Hopley had been accepted by the grantee named therein, and consequently the grantee was bound by its terms, one of which was to pay Eda Hedges a certain annual income. The acceptance by the grantee, with the reservation, prima facie immediately vested in Eda Hedges a definite, certain, and ascertainable property right. There is no ambiguity in the language of the deed. It did make the sisters and brothers of Eda Hedges the reversioners. It is quite obvious that the reservation in the deed in favor of *Page 280
Eda Hedges prima facie created in her an equitable interest. Pomeroy, supra. It became a burden upon the land, and it was a covenant which would run with the land, and was attached to the land, which the grantee, by his acceptance of the deed, assumed to pay.
At the time of filing of the renunciation, this suit had been pending since July 6, 1926. The renunciation was filed February 9, 1928, which was 19 months and 3 days after the commencement of this suit. At no place in the record is there a denial of the benefits under the annuity by Eda Hedges for all that period of time. On the contrary, the defendant Wayland Hopley, grantee, had filed his answer, claiming the annuity as a creditor of Eda Hedges', "and that, after he has satisfied such obligation as the said Eda Hedges owed him, he will be indebted to the said Eda Hedges upon said annuity, if she is still living."
Certain stipulations were entered into between the parties upon the trial, one of which was that Wayland Hopley purchased, on May 26, 1926, for the sum of $500, a judgment in favor of L.A. Andrew, receiver of the Citizens' State Bank of Anita, Iowa, which judgment was against Eda Hedges, and was in the sum of $8,781.50, and that said judgment is now the property of said Wayland Hopley, and that it was the intention of said Wayland Hopley to retain the annual sum of $1,250 per annum until said judgment was satisfied. It was further stipulated that the written renunciation of Eda Hedges, filed as stated herein, was the first notice that Wayland Hopley had from his sister Eda in reference to her intention to renounce, and that Eda Hedges had never assigned or taken any action in relation to said annuity. It was further stipulated that Eda Hedges was insolvent, and had been for more than five years last past. These stipulations were made on the 16th day of May, 1928, upon the commencement of the trial.
The defendant Wayland Hopley had filed no lien against the annuity in his hands, but made the bare claim that his sister was to satisfy her debt to him out of the annuity. There must have been an agreement between them to this effect, if such an arrangement had been made. The said answer of Wayland Hopley was filed in November, 1927. Nothing could be more clear than that Eda Hedges must have consented to the payment to her brother of her debt to him, which, even by implication, *Page 281
is so strong as to amount to an express assent that she had accepted the annuity.
In the absence of any evidence to the contrary, acceptance of this annuity will be presumed. There is not a word in the record that she did not intend to collect the annuity, until she filed her renunciation, which, under this record, came too late.
"Neither is it necessary that the beneficiary expressly accept the trust, as, it being for his benefit, his acceptance will be presumed * * *." 39 Cyc. 79, Paragraph 7.
"The authorities seem to be unanimous that, where a conveyance is made of real estate upon condition that the grantee shall pay a specified sum of money to a third person, or pay the debts of the grantor or of some third person, the acceptance of the conveyance by the grantee with such clause in the deed creates a covenant on the part of the grantee to discharge the obligation imposed, and creates the relation of trustee and cestui que trust
between the grantee and the persons for whose benefit the payment is to be made, without any act or assent on the part of the beneficiary." Koch v. Streuter, 232 Ill. 594, 599.
See, also, Underhill on Trusts Trustees (4th Ed.) 38.
The plaintiff was a holder of judgments against the defendant Eda Hedges. Our statute provides:
"At any time after the rendition of a judgment, an action by equitable proceedings may be brought to subject any property, money, rights, credits, or interest therein belonging to the defendant to the satisfaction of such judgment. In such action, persons indebted to the judgment debtor, or holding any property or money in which such debtor has any interest, or the evidences of securities for the same, may be made defendants." Section 11815, Code of 1927.
It is beyond question that the lien of a judgment under such provisions attaches to any equitable interest of the judgment debtor's, and it may be subjected to the satisfaction of the judgment by proper proceedings in equity for that purpose. Even a junior creditor, by first instituting equitable proceedings to subject property to his debt, acquires priority of lien over a senior judgment creditor less diligent. Bridgman Co. v.McKissick, 15 Iowa 260, 264. *Page 282
The case of Pinkham v. Pinkham, 60 Neb. 600 (83 N.W. 837), is quite similar to the case at bar, on both the fact and the law side. In that case there was a reservation in the deed, providing for the payment to a third person of $50 per annum by the grantee for 10 years. It was held that the third person had an equitable lien on the land, which must be satisfied by the grantee before the title was complete. In that deed the grantee also accepted, with the further reservation that he would support the grantor during the balance of his life. Upon the death of the grantor, his heirs commenced an action to quiet the title in the land as against the grantee, in favor of themselves. The Nebraska court held that the title should be quieted, but specifically held that, nevertheless, the equitable interest of the third person — to wit, the annuity of $50 — would follow the title into the hands of the reversioners, the heirs, and was not extinguished; in other words, that the equitable interest held by the third party was absolute when the grantee accepted the deed.
It follows, therefore, that, when Eda Hedges, the third party herein, received an equitable interest, measured by the amount of annuity given her, payable annually, this interest was reached by the plaintiff before Eda Hedges attempted to alienate or release same by her renunciation. The defendant Wayland A. Hopley accepted the deed with its reservation of $1,250, payable annually to Eda Hedges, and in his answer he admits that he owes her that amount. In her answer she merely entered a general denial, and not until about 19 months after the instant suit was commenced did she make her renunciation.
It is immaterial what we call the $1,250. It is sufficient to say that it was a definite amount, to be paid her at a definite fixed date each year. I refuse to fly into the face of well established precedent, and hold that Eda Hedges did not have a definite equitable interest, measured by the annual income which was given to her by her father by the reservation in the deed. The conveyance in question is made subject to a reservation clause in the deed itself to pay her an annuity, and this in itself creates a covenant on the part of grantee to discharge the obligation imposed upon and running with the land. 27 Cyc. 981. See Koch v. Streuter, supra. Eda Hedges, therefore, acquired an equitable interest in property when the acceptance was made by the grantee, and she cannot renounce in this case, *Page 283
as she attempted to do, to defeat a creditor's lien, under Section 11815. Such an act savors of connivance, and is a mere subterfuge.
The case at bar is not analogous to those cases involving legacies or gifts dependent on the exercise of discretionary power by the trustee or others. In such cases, there is nothing definite, as the legacies are limited, and conditioned by authority of the trustees to pay the same. In such cases it may be said that the legatee has nothing. In Funk v. Grulke, 204 Iowa 314, this court, speaking through Justice Evans, defines such a situation, and it is said:
"The codicil conferred upon her no title to property. It gave her no power over the trustees. It left her a mendicant, at the mercy of their future judgment. There was no understanding that she was to receive her one-sixth share provided for her in the will, or any part thereof."
See, also, Ober v. Seegmiller, 180 Iowa 462; Kiffner v.Kiffner, 185 Iowa 1064; Darling v. Dodge, 200 Iowa 1303.
At the time of renunciation by the legatee in the above cases, such legatee was not in possession of anything definite, ascertained, or established. This situation makes the instant case distinguishable from the foregoing cases in both fact and principle.
The grant in question did not create a condition subsequent, but it did create an equitable interest by reservation. SeeDoescher v. Spratt, 61 Minn. 326 (63 N.W. 736). The instant deed is unconditional.
"There is no provision for re-entry in this deed. Such being the case, the clause will not be construed as a condition subsequent, but as creating a lien to secure the payment of the stipulated annuity * * *." Ibid., page 329.
The right, title, and interest of Eda Hedges in the income or annuity became vested before her renunciation, and plaintiff established his equitable right in certain income or annuities belonging to Eda Hedges before her renunciation. A vested right is an immediate fixed right of present and future enjoyment. Rights are vested when the right of enjoyment, present or prospective, has become the property of some particular person *Page 284
as a present interest. The definition is well expressed inEdworthy v. Iowa Sav. L. Assn., 114 Iowa 220, and in Pearsallv. Great Northern R. Co., 161 U.S. 646 (40 L. Ed. 838). Ownership of an equitable interest was complete in Eda Hedges. She may waive, release, or renounce, as she desires, and extinguish her right to her interest, but not to the detriment of a judgment creditor who had, under equitable proceedings, under Section 11815, fastened upon her interest an equitable right before she renounced.
We deem it unnecessary to distinguish and differentiate the legal concepts "reservation," "exception," and "condition subsequent." It is sufficient to cite a few cases involving these legal distinctions. Dodd v. Rotterman, 330 Ill. 362
(161 N.E. 756); Nichols v. Fernald, 82 N.H. 186 (131 A. 836); Dunne v.Minsor, 312 Ill. 333 (143 N.E. 842); Grant v. Haymes, 164 Ga. 371
(138 S.E. 892); Hoffmaster v. Baird, 87 Pa. Super. 369; Hallv. Quinn, 190 N.C. 326 (130 S.E. 18).
In conclusion, it must be said that Eda Hedges had something, and this something was a right to a definite, ascertainable amount, payable at a fixed time, payable out of the grantee's fund, which he himself must raise. Wayland A. Hopley recorded the right which acquired. The beneficiary, at no time prior to the filing of the petition herein, made any disclaimer or denial of her rights in the premises, and the facts and circumstances of this case are sufficient to show an acceptance by the beneficiary of the right which had vested in her. In brief, Eda Hedges renounced too late to defeat the right asserted by this plaintiff, and asserted in the manner provided by law.
The decree entered by the trial court should be reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429977/ | This action was instituted by the county attorney of Clinton county under the authority and provisions of chapter 531 of the Code (section 12417 et seq.). It is provided by section 12417, which is a part of said chapter of the Code of 1931, that:
"A civil action by ordinary proceedings may be brought in the name of the state in the following cases: 1. Against any person unlawfully holding or exercising any public office or franchise within this state, or any office in any corporation created by this state."
Section 12419 further provides that:
"Such action may be commenced by the county attorney at his discretion, and must be so commenced when directed by the governor, the general assembly, or a court of record."
The action was commenced in the district court of Clinton county, which is the county of the residence of the defendant Claussen. Appellant first responded to the notice served upon him in Polk county, which is the county of his residence, by filing a motion for a change of the place of trial. It is alleged in the motion that the defendant Claussen is in truth and in fact the plaintiff; that the action was commenced at his instigation and procurement and in pursuance of a demand made upon the county attorney by appellee's attorneys that such action be commenced; that the record of the *Page 1082
proceedings showed that the method of bringing the action and each step therein was a subterfuge designed by appellee Claussen and his attorneys to obtain jurisdiction of the cause of action in Clinton county. The motion was overruled, and thereupon appellant filed answer to the petition of relator and a reply to the answer of appellee Claussen previously filed.
The facts upon the trial of the main issues were almost wholly stipulated by all of the parties. A recital of the material facts thus stipulated will make clear the nature and scope of the controversy without any extended statement at this time of the issues joined.
E.A. Morling, one of the judges of the Supreme Court of Iowa, died on October 15, 1932. Thereafter and on October 18th, appellant was placed in nomination by the state central committee of the Democratic Party as a candidate to fill the vacancy caused thereby. The nomination was thereafter certified to the secretary of state. On the same or the following day, the appellee Claussen was nominated as a candidate to fill such vacancy by the state central committee of the Republican Party and such nomination was thereafter certified to the secretary of state. Following the nomination of appellee by the Republican state central committee, he was appointed by the Governor of the State of Iowa to the vacancy caused by the death of Judge Morling. The names of the respective candidates were printed upon the ballots and voted for and against at the general election held on November 8th. The result of such election was that appellant received 472,922 votes and appellee 377,375 votes. Upon a canvass of the votes, the state board of canvassers found that appellant was duly elected to fill the vacancy caused by the death of Judge Morling and a certificate of election was issued to him. Appellant subsequently qualified by taking the oath prescribed by law and entered upon the performance of the duties of a judge of the Supreme Court.
I. We shall first dispose of the exception of appellant to the ruling of the court on the motion for a change of the place of trial. It is, of course, admitted that appellant is a resident of Polk county and appellee of Clinton county. The grounds of the motion are that the action is not prosecuted in good faith by the relator, but that same was instituted as a mere subterfuge and at the instance and procurement of Claussen and his attorneys and that appellee is in reality the plaintiff. He is designated in the pleadings as the defendant. The action was not commenced by direction of the Governor, *Page 1083
the General Assembly, or a court of record. Section 12419 of the Code, however, confers full authority upon the county attorney to, in his discretion, prosecute the action. It appears that at a meeting of the Bar Association of Clinton county, a motion or resolution was adopted favoring the commencement of an action to adjudicate Claussen's right to hold the office as judge of the Supreme Court under and by virtue of the commission issued to him by the Governor. Claussen testified that he had nothing to do with this action, took no part therein, and that he at no time solicited or caused the attorneys now representing him to solicit the relator to commence the proceedings. The grounds of the motion are not sustained by proof. It is not claimed that if Claussen was, in fact, the defendant in the action, appellant could not be joined as a party and the action be prosecuted in Clinton county. Obviously, the motion was properly overruled.
[1] II. The major propositions, however, relied upon by appellant for reversal, present questions largely of statutory construction.
We are dealing at this time, primarily, with elections to fill vacancies in office caused by the death, resignation, or otherwise occurring during the term for which an officer has been elected.
The provisions of the Constitution of this state in relation thereto are article IV, section 10, which is as follows:
"Vacancies. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy, by granting a commission, which shall expire at the end of the next session of the General Assembly, or at the next election by the people," and article XI, section 6, which is as follows:
"How vacancies filled. In all cases of elections to fill vacancies in office occurring before the expiration of a full term, the person so elected shall hold for the residue of the unexpired term; and all persons appointed to fill vacancies in office, shall hold until the next general election, and until their successors are elected and qualified."
It is provided by section 504 of the Code that general elections for state, district, county, and township officers shall be held throughout the state on Tuesday next after the first Monday in November of each even-numbered year. Provision is made by statute for the *Page 1084
nomination of candidates for office to be filled at each general election. The machinery set up for this purpose is ample.
The legislature has also made provision for filling vacancies occurring during the term for which an officer shall have been elected. Section 1157 of the Code is as follows:
"If a vacancy occurs in an elective office in a city, town, or township ten days, or a county office fifteen days, or any other office thirty days, prior to a general election, it shall be filled at such election, unless previously filled at a special election."
Had the death of Judge Morling occurred more than thirty days prior to November 8, 1932, this controversy could not well have arisen. His death having occurred on October 15th, less than thirty days intervened until the date fixed by law for the holding of the next general election.
Much of the contention of counsel for the respective parties is based upon differences of opinion as to the proper interpretation of section 1157, Code of 1931. All parties agree that this section of the Code authorizes the filling of vacancies occurring in office thirty days prior to the next general election. It is not only conceded, but it is the contention of counsel for appellant, that if a vacancy occurs in the office of a state officer thirty days or more prior to the next ensuing general election, the duty to fill such vacancy thereat is mandatory. It is the further contention of counsel that if a vacancy occur in a state office less than thirty days, permissible authority is given to fill the vacancy at the next ensuing general election. The contention of counsel that the duty to fill the vacancy, if it occurs thirty days or more prior to the general election, at such election is mandatory, is not exactly clear. Upon whom is it mandatory? There is no power resident in any one to compel any political party to nominate candidates for office. Of course, it is assumed that political parties desirous of maintaining their existence and members thereof in office will nominate candidates for any office for which authority exists to be filled at the next general election. No mandatory duty, however, upon any person or organization to do so exists. The statute in question authorizes the filling of a vacancy in a state office occurring thirty days prior to the next ensuing general election. The statute is mandatory only in the sense that it provides in definite language when a vacancy in a state office may be filled at the next ensuing general election. Clearly, it does *Page 1085
not, in terms at least, authorize nominations to be made and candidates to be voted for at such general election if the vacancy occurs less than thirty days prior to the date on which such election is to be held. If the duty to cause a vacancy to be filled is at any time mandatory upon some person or political organization, then is a permissive right implied if a vacancy occurs less than thirty days prior to the date fixed for a general election?
It is a general rule of law early adopted in this state that when the language of a statute is explicit and definite, the words used govern. District Township of City of Dubuque v. City of Dubuque, 7 Iowa 262; First National Bank of Davenport v. Davies, 43 Iowa 424; State, for use of Estherville, v. Hanson,210 Iowa 773, 231 N.W. 428. In the course of the opinion in the Dubuque case, the court said:
"The expression of one thing is frequently the exclusion of another; and if, by a law or constitution, a thing is to be done in a particular manner or form, this, as we have seen, includes a negative, that it shall not be done otherwise. * * * This rule, it is also said, is further modified by another, that where the means for the exercise of a granted power are given, no other, or different means can be implied, as being more effectual or convenient."
Section 1157 contains neither ambiguity of expression nor uncertainty as to its scope or purpose. The Constitution does not provide machinery for making nominations or holding elections. It was not designed for that purpose. The machinery, in obedience to the constitutional mandate, has been set up by the Legislature, and no one in this case challenges the validity of the provisions made thereby. The Legislature having acted, the machinery adopted is exclusive. If the construction for which appellant contends were to be adopted, the statute would be, at most, directory and practically useless. No doubt, the time fixed for filling vacancies in the various offices referred to in section 1157 was to give ample time for the electors to act and to inform themselves as to the issues and persons involved or to be considered. This is consonant with the provisions of section 506 of the Code, which require that a proclamation of the holding of a general election designating the offices to be filled by the electors shall be issued by the Governor at least thirty days prior to such election. A similar proclamation must be issued before any special election may be held. Section 509, Code. *Page 1086
[2] But numerous sections of the Code relating to nominations of candidates for various state, county, and township offices and to the printing of ballots are called to our attention as supporting appellant's theory of a permissive right to nominate a candidate to fill a vacancy in a state office occurring less than thirty days prior to the next ensuing general election. We shall now give attention to these sections of the Code.
Section 606 provides that vacancies in nominations made in the primary election, when such vacancies occur after the holding of a county, district, or state convention, shall, generally, be filled by the party central committee appropriate to such action.
Section 609 provides that nominations occasioned by vacancies in office after the holding of county, district, or state conventions, or prior thereto, but too late to be made thereat, shall be made by the appropriate party committee except when the vacancy is in the office of Senator of the United States and occurs thirty days prior to the holding of the regular November election, the nomination shall be made by convention as provided in case of vacancies in nominations for such office.
Section 615 provides that nominations made in case of vacancy and nominations made by state, district, and county conventions shall, under the name and place of residence and post office address of the nominee and the office to which the nominee is nominated and the name of the political party making the same, be forthwith certified to the proper officer by the chairman and secretary of the convention, or by the committee, as the case may be, and, if received in time, the names of such nominees shall be printed on the official ballot.
It is provided by section 655-a4 that:
"Objection to the legal sufficiency of a certificate of nomination or to the eligibility of a candidate may be filed by any person who would have the right to vote for a candidate for the office in question. Such objections must be filed with the officer with whom such certificate is filed and within the following time:
"1. Those with the secretary of state, not less than twenty days before the day of election.
"2. Those with other officers, not less than eight days before the day of election.
"3. In case of nominations to fill vacancies occurring after said twenty or eight days, as the case may be, or in case of nominations *Page 1087
made to be voted on at a special election, within three days after the filing of the certificate."
Section 669 provides that nominations for the office of judge of the Supreme or district court shall be certified to the secretary of state in the same manner that nominations for other state officers are certified.
Section 670 provides that objections to the legal sufficiency of such certificate of nomination or eligibility of the candidate shall be governed by the statute already referred to.
Sections 776, 777, 778, 779, and 780 are as follows:
"776. The name supplied for a vacancy by the certificate of the secretary of state, or by nomination certificates or papers for a vacancy filed with the county auditor, or city or town clerk, shall, if the ballots are not already printed, be placed on the ballots in place of the name of the original nominee.
"777. If vacancies be certified after the ballots have been printed, new ballots, whenever practicable, shall be furnished.
"778. When it may not be practicable, after a vacancy has been certified, to have new ballots printed, the election officers having charge of them shall place the name supplied for the vacancy upon each ballot used before delivering it to the judges of election.
"779. If said ballots have been delivered to the judges of election before a vacancy has been certified, said auditor or clerk shall immediately furnish the name of such substituted nominee to all judges of election within the territory in which said nominee may be a candidate.
"Pasters with the name of the substituted nominee thereon shall likewise be furnished the voter with his ballot when possible to do so.
"780. Judges of election having charge of the ballots shall, in the case contemplated in the preceding section, place the name supplied for the vacancy upon each ballot issued before delivering it to the voter, by affixing a paster, or by writing or stamping the name thereon."
We do not understand counsel to contend that any of the foregoing sections purport, in terms at least, to authorize nominations to fill vacancies to be made where such vacancy occurs less than thirty days prior to the next general ensuing election, but that, when given *Page 1088
proper weight and effect in the interpretation of section 1157, permissive authority is shown to do so.
All of the foregoing sections, except section 609, which is without possible ambiguity, relate either to vacancies occurring in nominations, the placing of names of candidates on the official ballot, or objections to certificates of nomination and the eligibility of candidates to become such or to hold office. None of them purport to create or give authority to hold an election. They all proceed upon the hypothesis that such authority already exists. If this thought be kept constantly in mind, there can be no conflict in the terms and provisions of any of the statutes in this state relating to elections, nominations, or the placing of names of candidates upon official ballots. It is a necessary conclusion that the authorization of the several statutes relied upon by counsel presupposes the already existing authority to hold an election to fill an office for a full term or to fill a vacancy. See chapter 37, Code 1924 (sections 649-655), chapter 33, Laws 24th General Assembly.
Particular emphasis is sought to be given by counsel to section 655-a4. If the effect for which counsel contends be given to this statute, then nominations to fill vacancies occurring at any time before the general election is held may be filled even if it be necessary that the names of the candidates be placed upon the ballot by the use of pasters. Counsel does not contend for the conclusion stated, but such would seem to be the logical result of the contention urged. Section 655-a4 does not relate to, or in any sense authorize, nominations to be made. The subject of the section makes this clear. It provides that if there be objections to the legal sufficiency of a certificate of nomination or to the eligibility of a candidate, the same may be filed in the proper office and within the time designated. The obvious purpose of this section is to, so far as possible, obviate any question as to the legality of the certificate of nomination or the availability of a candidate to fill the office to which he has been nominated. A certificate may be informal or so irregular as, in the absence of some such provision, to render the election void. Likewise, the election of a candidate for any office, who is ineligible to hold the same, would be invalid. This section of the Code makes easily ascertainable the eligibility of the candidate before the election is held.
Again, it must be obvious that the nominations referred to are of candidates for offices or for vacancies therein to be filled at any *Page 1089
ensuing general election. The only sections of the Code which prescribe the time within which and which authorize the filling of a vacancy in a state office at a general election are sections 1157 and 1155, Code 1931. The only authority granted by section 1157 is to fill a vacancy in a state office occurring thirty days before a general election. No election can be held without statutory authority. This no one does, or can, deny.
[3] But, it is further contended by counsel that there is such inconsistency in the terms and provisions of the foregoing sections, when considered together, as to, by implication, repeal the so-called mandatory provisions of section 1157. The contention is clearly unsound. None of the sections referred to deal with the subject dealt with in sections 1156 and 1157. It is the law that repeals by implication are not favored and will be held to occur only when the court is driven thereto by the necessities of the situation. Central Iowa Railway Co. v. Board of Supervisors, 67 Iowa 199, 25 N.W. 128, Eckerson v. City of Des Moines, 137 Iowa 452, 115 N.W. 177, Diver v. Savings Bank,126 Iowa 691, 102 N.W. 542, 3 Ann. Cas. 669.
A subsequently enacted statute dealing with the same subject, when properly construed, may be held to repeal by implication some or all of the provisions of a prior enactment. To hold that statutes dealing merely with the procedure to be followed in making nominations and filling vacancies occurring therein by implication operates to repeal a statute dealing with an entirely different subject would be to clearly violate the canon of interpretation stated above. Repeal by implication in such situation so broad and sweeping as would be necessary cannot be favored. As was said by the Supreme Court in State v. Simon,20 Or. 365, 26 P. 170, 172:
"`It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casus omissus than to attempt to do so by judicial construction.' People v. Woodruff, 32 N.Y. 364. Courts cannot supply omissions in legislation, nor afford relief, because they are supposed to exist. To adopt the language of Mr. Justice Woods in Hobbs v. McLean, *Page 1090 117 U.S. 579, 6 S. Ct. 870 [29 L. Ed. 940]: `When a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate, and not to construe.'"
We are clear that no portion of section 1157 has been repealed by implication. The provisions of the constitution quoted supra fix the period of time for which an appointee to a state office shall serve. It is provided thereby that such appointee shall hold until the next general election and until his successor is elected and qualified. These provisions of the Constitution are directed to the Legislature, whose duty it is to make provision for carrying their purpose into effect.
As was said by the Supreme Court of Pennsylvania in Commonwealth v. Maxwell, 27 Pa. 444:
"A constitution cannot execute itself. It is a frame or plan of government. It lays down certain great and fundamental principles, according to which the several departments it calls into existence are to govern the people; but all auxiliary rules which are necessary to give effect to these principles must, from the necessity of the case, come from the legislature."
The Legislature of this state, in recognition of the power thus conferred and in fulfillment of the duty implied therein, has enacted numerous statutes fully meeting the constitutional requirements.
[4] Attention at this time, and in connection with the constitutional requirements, should be directed to section 1155 of the Code, which is as follows:
"An officer filling a vacancy in an office which is filled by election of the people shall continue to hold until the next regular election at which such vacancy can be filled, and until a successor is elected and qualified. Appointments to all other offices, made under this chapter, shall continue for the remainder of the term of each office, and until a successor is appointed and qualified."
The authority granted by this section is in strict harmony with the constitutional requirement. It likewise provides that an officer filling a vacancy, which is to be filled by the election of the people, shall hold until the next general election at which the vacancy can be filled. It is further provided by this statute that appointees *Page 1091
to all other offices made under chapter 59 (section 1145 et seq.) shall continue for the remainder of the term of such office and until a successor is elected and qualified.
The next general election means the next general election at which, in pursuance of law, a vacancy may legally be filled. Under all of the authorities called to our attention dealing with the subject, it is held that this does not necessarily mean the next ensuing general election, but the election at which the vacancy can be legally filled. State v. Superior Court, 140 Wn. 636,250 P. 66; State v. Simon, 20 Or. 365, 26 P. 170; Sawyer v. Haydon, 1 Nev. 75; State v. Jepson, 48 Nev. 64, 227 P. 588; State v. Minor, 105 Neb. 228, 180 N.W. 84.
[5] The Constitution, as stated, is in no sense self-executing. Its mandates directed to the Legislature must be obeyed in accordance with the provisions made thereby for that purpose. The only authority granted by the Legislature for filling vacancies occurring in state offices is to be found in the sections quoted. The authorization to fill a vacancy occurring in an elective state office at the next ensuing general election is when such vacancy occurs thirty days or more previous to a general election. In whatever sense this statute is to be held mandatory, it definitely and in specific terms refers only to vacancies occurring thirty days prior to the general election. This operates as a limitation upon the authority given. None of the provisions of this statute have been, by implication or otherwise, repealed. It in no sense violates the Constitution, but in specific terms responds to the mandate thereof.
It is our conclusion at this point that no vacancy in the office of judge of the Supreme Court which could be legally filled at the general election on November 8, 1932, existed, and that, as a necessary conclusion, the election to fill such pretended vacancy is void and without effect.
[6] The question now naturally arises: "For what term may appellee continue to hold said office?" The Constitution and statutes are plain on this subject. Under these provisions, he will, unless by some act or conduct on his part, as claimed by appellant, he has waived his right to do so, hold the office until the next ensuing general election and until his successor shall have been elected and qualified.
It is, however, contended on behalf of appellant that no issue is involved in this case as to the time for which appellee shall hold *Page 1092
the office. This contention would seem to overlook certain allegations of the answer of appellee and the general denial contained in the reply of appellant to the answer. The action was brought to determine the title under which appellee claimed to hold the office. That was the issue to be tried in the action. We think there can be no doubt as to the soundness of the decree of the district court at this point.
[7] III. It is further contended by appellant that appellee did not properly qualify for the office by filing his commission in the office of the secretary of state, as required by section 1154 of the Code, which provides:
"Appointments under the provisions of this chapter shall be in writing, and filed in the office where the oath of office is required to be filed."
The authority of one appointed by the Governor to fill a vacancy in a state office is conferred by the commission issued to him. Noncompliance with section 1154 would be an irregularity only which could be complied with at any time and which would not affect the validity of the commission. This question arose many years ago, and the holding of the Supreme Court of the United States in Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60, would seem to still be sound. The contention is without merit.
[8] IV. Appellant, in his reply to the answer of Claussen, pleaded estoppel in three subdivisions thereof. It is stated in the argument of counsel that the count upon which appellant relies at this point is the one pleaded in division 5 of such reply. The specific allegations of this count are that appellee, by reason of his failure to withdraw as a candidate for the office of judge of the Supreme Court at the general election, and by reason of his failure to follow the method provided by law to test the validity of such nomination and certificate of nomination, acquiesced therein and waived the right to object to the results of the election. In addition to the foregoing, the division reaffirms all matters alleged in the pleading.
First, as to estoppel: The nomination of appellant preceded that of appellee. It is obvious, therefore, that he did not, in becoming a candidate and accepting the nomination of his party as a candidate to fill the supposed vacancy, rely upon any act or conduct of appellee. If there was no vacancy which could be legally filled at the general election in November, 1932, it must be obvious to *Page 1093
every one that appellee could have done nothing that would operate as an estoppel against him. If, on the other hand, the names of both appellant and appellee were legally upon the ballot to be voted for or against, then certainly no estoppel could arise in favor of appellant. Indeed, none would have been necessary, as appellant admittedly received a large majority of the votes cast at such election. Conversely, if the names of both appellant and appellee were not lawfully placed upon the ballot because there was no vacancy to be filled at the election, then, even if it were conceded that appellee by some act or conduct forfeited his right to serve out the unexpired term as an appointee to the office, it would in no sense avail appellant. In such case, appellant would not have obtained legal title to the office if appellee's name had not been placed upon the official ballot. The most that could be claimed in such situation would be that a new vacancy in the office was created — a vacancy for which appellant was not a candidate. To render the election valid, a vacancy must have existed at the time the respective nominations were made which, under the provisions of the statute, could be filled at the last general election. Upon the theory of the estoppel pleaded, just when did appellee forfeit his right to the office? If at all, it must have been after the nomination of appellant, which preceded that of appellee. All parties concede that appellee was entitled, under his commission issued by the Governor, to keep the office until the general election at which the vacancy caused by the death of Judge Morling could be legally filled. Appellee has not resigned. Even if it were conceded that by permitting his name to be printed upon the official ballot he thereby forfeited his right to the office and that a vacancy arose because thereof, it would not be the vacancy which appellant was nominated to fill. The relator has not appealed.
It is significant at this point that the appointment of appellee to the vacancy, which all agree on the date thereof existed, did not precede but followed the purported nomination of him by the Republican State Central Committee. If, therefore, there was any abandonment on his part, it must have been of the nomination and not of his right to hold the office under the Governor's appointment. Appellee testified that the nomination by the Republican State Central Committee was without his knowledge or consent and that he never at any time by any affirmative act accepted the nomination. It could hardly be reasonably contended that if appellee was legally *Page 1094
in possession of the office he owed a duty to appellant to in some way renounce the act of the Republican State Central Committee or to take action to test the validity of appellant's place on the ballot. This was not in any sense necessary and the fact that he did not do so avails appellant nothing.
[9] The decree of the district court adjudged that appellee was legally in possession of and entitled to perform the duties of judge of the Supreme Court until the general election in 1934. This adjudication is binding upon the state and all persons except such as are before us on this appeal. Appellant must win, if at all, upon his own title and right to the office, and not to any weakness in the title of appellee. One of the grounds provided by statute upon which an action in quo warranto may be based is that a public officer has done or suffered some act which works a forfeiture of his office. This ground does not appear in the petition, and it is not claimed by relator that any such ground, in fact, existed.
It is our conclusion that neither the plea of estoppel nor waiver is proven, or, if established, are, upon any theory, available to appellant, or give him title to the office.
We have, because of the importance of this case, both to the litigants and to the public, endeavored to discuss and dispose of every proposition urged by appellant on this appeal. The question before the court is one of law and must be disposed of as such. The interpretation placed upon the statutes involved permits but one conclusion, and that is that the judgment and decree of the district court should be in all respects affirmed. It is so ordered. — Affirmed.
ALBERT, C.J., and EVANS, KINDIG, ANDERSON, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429983/ | This appeal presents one primary proposition: Was the action of the directors of the defendant-corporation in fixing their own salaries as officers illegal and void? *Page 237
This defensive claim arises by reason of an allegation contained in the answer of the defendant, and it was made a ground in the motion of defendant for a directed verdict. The trial court overruled the motion.
The defendant Klipto Loose Leaf Company is a corporation organized under the laws of the state of Delaware, and authorized to do business in this state as a foreign corporation. We are not concerned with its early history and organization, except to state that, at the first meeting of the stockholders and incorporators, the plaintiff G.A. Bennett, M.E. Ferguson, B.C. Way, F.E. Johnson, G.C. Bennett, and R.I. Jacobs were elected directors of the corporation. On or about June 9, 1923, a directors' meeting was held in Mason City, Iowa, for the purpose, as stated in waiver of notice thereof, of electing officers, of authorizing the purchase of property, and of transacting such other business as might be necessary or advisable, to facilitate and complete the organization of the new corporation. This waiver was signed by four of the directors, to wit, the plaintiff Bennett, Way, Ferguson, and Johnson. The record does not disclose that the other directors had any notice whatsoever of the meeting.
At this meeting a resolution was adopted, fixing the salaries of the directors, as officers, for the ensuing year, to wit: that of plaintiff, as president and manager of the sales department, in the sum of $7,000, payable monthly, in twelve equal installments; that of M.E. Ferguson, as vice president and general manager, in the sum of $7,000, payable in like manner; that of F.E. Johnson, as secretary, in the sum of $600. There is no question, under the record, but that the three director-officers voted for the resolution. The plaintiff himself testified:
"Mr. Ferguson, Mr. Johnson, and myself fixed my salary and Mr. Ferguson's at $7,000, and Mr. Johnson's at $600."
The evidence does not disclose that Mr. Way voted for the resolution, except inferentially, by the recital in the minutes of the secretary that the resolution was unanimously adopted. The minutes, however, do not show who offered the resolution, who seconded same, or whether Mr. Way was present when the vote was taken. Mr. Way testified: *Page 238
"I think I was not present when the first salaries were voted."
Before passing to a discussion of the law applicable to the controlling proposition involved herein, further facts may be stated, in order to understand the basis of plaintiff's cause of action.
It appears that, about three months subsequently to the adoption of the initial resolution fixing salaries, an agreement was mutually entered into among the same director-officers, to reduce the salaries of the plaintiff and M.E. Ferguson for the balance of the fiscal year to $5,000 per annum, and to eliminate the salary of F.E. Johnson, as secretary. Pursuant to this agreement, the plaintiff, as president, and M.E. Ferguson, as vice president, were each paid, for the remaining months of the year, a monthly salary on the agreed basis, which was accepted by them without comment or protest, and F.E. Johnson, as secretary, received no further salary, although he continued to act as secretary.
In the petition of plaintiff it is alleged that it was agreed that:
"He [Bennett] would only draw at the rate of $5,000 per year for the balance of the year, but that at the end of the year the cash was to be paid him, or, at his option, he would take shares of stock in the company for the difference between the amount due him at the rate of $7,000 per year and the amount paid him."
It is for this difference that plaintiff commenced this action.
The evidence presents a conflict as to the terms of the agreement, and it is the claim of the defendant in answer that the mutual agreement between the director-officers for the reduction of salaries was due to the financial status of the corporation, and that no condition was attached to the agreement, and "that, by reason of such payments so made and accepted, the plaintiff waived any right or claim to any other or further sum on account of said salary."
It is undisputed that the other two officers carried out the agreement as claimed by the defendant. Both Ferguson and Johnson testified that there was no talk whatsoever that the difference between $5,000 and $7,000 was to be deferred, and *Page 239
paid at some future time to Bennett. It was for the jury to determine, under a proper instruction, whether the mutual agreement pleaded was as claimed by the plaintiff or by the defendant.
We now revert to the law bearing on the primary question in this case. It is well settled that the directors of a corporation occupy a fiduciary relationship to the stockholders, and cannot fix their own salaries, either as directors or officers, so as to bind the corporation. 14a Corpus Juris 143. Compensation voted to an officer of a corporation is illegal, if the resolution fixing such compensation is carried by his vote. McNulta v. Corn BeltBank, 164 Ill. 427 (45 N.E. 954, 56 Am. St. 203); Voorhees v.Mason, 245 Ill. 256 (91 N.E. 1056). Directors cannot fix the value of their own services to the corporation. Davis v. Thomas Davis Co., 63 N.J. Eq. 572 (52 A. 717). See, also, McKey v.Swenson (Mich.), 205 N.W. 583. In the case at bar it is clearly shown that the salaries voted by the directors to themselves, as officers, were excessive, and more than the corporate business would bear.
A trustee, for his own private advantage, may not do that which shall place him in a position in which his interest is antagonistic to that of the beneficiary. 4 Fletcher's Cyclopedia of Corporations, Section 2752. It is said in 2 Thompson on Corporations (2d Ed.), Section 1720:
"* * * It is almost universally held that directors, acting as such at their meetings, have no power to vote themselves salaries or compensation for their services, either before or after such services have been rendered. The purpose of the law is said to be to guard against the greed of directors and officers, to prevent them from rewarding themselves for services which they hope they may be able to perform by virtue of their official position."
See, also, Clark v. American Coal Co., 86 Iowa 436 (17 L.R.A. 557); Schoening v. Schwenk, 112 Iowa 733.
Under the record before us, we reach the conclusion that the vote of each of the interested directors, respectively, was the controlling vote in the adoption of the resolution fixing his own salary. It follows, therefore, that the claim of plaintiff is predicated upon a void resolution. The court should have *Page 240
sustained defendant's motion for a directed verdict. However, we do not foreclose plaintiff on the fact proposition, in the event of a retrial of the cause.
The judgment entered by the trial court is — Reversed.
STEVENS, FAVILLE, and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209070/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Ames, :
:
Petitioner :
:
v. : No. 2421 C.D. 2015
: Submitted: April 22, 2016
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: June 3, 2016
Eric Ames (Claimant), pro se, petitions for review of the October 13,
2015 order of the Unemployment Compensation Board of Review (Board) denying
Claimant unemployment compensation benefits. The Board concluded that
Claimant voluntarily left his employment with On Time Delivery (Employer)
without a necessitous and compelling reason and was therefore disqualified from
receiving benefits under Section 402(b) of the Unemployment Compensation Law
(Law).1 We affirm.
Claimant’s last day of work was June 4, 2015. (Record Item (R. Item)
1, Claim Record.) On June 11, 2015, Claimant completed a questionnaire
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Section 402(b) of the Law provides, in relevant part, that an employee shall be ineligible for
compensation for any week in which his or her unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.
regarding his separation from employment by telephone with the Department of
Labor and Industry (Department). (R. Item 2, Claimant Questionnaire.) The
Department issued a Notice of Determination on June 25, 2015 finding Claimant
ineligible to receive unemployment benefits because Claimant failed to show that
he had a necessitous and compelling reason to voluntarily terminate his
employment. (R. Item 4, Notice of Determination.) Claimant appealed the
Department’s determination and a hearing was held before a Referee on August 3,
2015. (R. Item 5, Petition to Appeal; R. Item 9, Hearing Transcript (H.T.).) At the
hearing, Claimant appeared and testified; two witnesses, Christopher Jenkins,
President, and David Liddell, LTL Director, appeared on behalf of Employer and
testified. (R. Item 9, H.T. at 1, 5, 7, 10.) On August 4, 2015, the Referee issued a
decision and order concluding that Claimant had failed to meet his burden to
demonstrate that he left his employment for a necessitous and compelling reason.
(R. Item 10, Referee’s Decision and Order.) Claimant appealed to the Board for
review and on October 13, 2015, the Board issued an order affirming the Referee.
(R. Item 12, Board’s Decision and Order.) In its order, the Board adopted and
incorporated the Referee’s findings of fact and conclusions of law. (Id.) The
following are the Referee’s findings of fact adopted and incorporated by the Board:
1. [Claimant] worked for [Employer] as Amazon
Manager, full-time, from November 2014 until his last
day of work, June 4, 2015. [ ]
2. [Claimant] was hired on a job with a start time of 1:30
a.m.
3. [Claimant] was informed when he started the job that
part of his job would involve driving, although he would
also be managing drivers.
2
4. Given that the start time for the job was 1:30 a.m., if
[Claimant] was going to be driving, he would be driving
at night.
5. [Claimant] began to request [Employer] not to assign
him to drive, especially at night.
6. [Claimant] contended that he had problems seeing to
drive at night.
7. [Employer] asked [Claimant] to get his eyes checked,
and to provide [Employer] documentation relative to any
difficulties which he had driving at night.
8. [Claimant] did not go to get his eyes checked, and did
not provide [Employer] with any documentation
regarding difficulties driving at night.
9. [Claimant] has passed the Department of
Transportation [(DOT)] Eye Tests required for a driving
job.
10. The last two months that [Claimant] worked, he
drove nine out of thirty-four work days.
11. [Claimant] voluntarily left his employment because
he was dissatisfied with the amount of driving which he
was required to do.
12. If [Claimant] had not voluntarily left, continuing
work was available for him.
(R. Item 10, Referee’s Decision and Order, Findings of Fact (F.F.) ¶¶1-12.) In the
decision adopted by the Board, the Referee also credited the testimony of
Employer’s witness, Mr. Jenkins, and found that Claimant was not credible,
stating:
A resolution in this case depends upon an assessment of
credibility. The Referee credits [Employer’s] testimony
3
that [Claimant] was hired with the understanding that he
would be doing a substantial amount of driving, in
addition to managerial work. The Referee finds that the
amount of driving which [Claimant] was performing at
the end of his employment was not substantial. The
Referee does not credit [Claimant’s] testimony that he
was having any more problems driving at night than any
other individual would have. The Referee notes that
[Claimant] did not provide any documentation to
[Employer] regarding any night vision problems, and that
he testified that he had passed the DOT Eye Test.
(Id. Discussion at 2.) Claimant timely petitioned this Court for review of the
Board’s order.2
Claimant argues before this Court that the Referee erred in finding
that Employer was forthright with Claimant about the amount of driving that
would be required of Claimant as a part of his employment.
A claimant who voluntarily terminates his employment has the burden
of proving that he had a necessitous and compelling reason. Philadelphia Housing
Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 (Pa.
Cmwlth. 2011). In order to carry his burden, a claimant must demonstrate that: (1)
circumstances existed which produced real and substantial pressure to terminate
employment; (2) such circumstances would compel a reasonable person to act in
the same manner; (3) the claimant acted with ordinary common sense; and (4) the
claimant made a reasonable effort to preserve his employment. PECO Energy
Company v. Unemployment Compensation Board of Review, 682 A.2d 49, 51 n. 1
(Pa. Cmwlth. 1996). An employer’s unilateral imposition of a real and substantial
2
In an unemployment compensation appeal, this Court’s scope of review is limited to
determining whether an error of law was committed, whether constitutional rights were violated,
and whether necessary findings of facts are supported by substantial evidence. Section 704 of
the Administrative Agency Law, 2 Pa. C.S. § 704; On Line Inc. v. Unemployment Compensation
Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008).
4
change in the terms and conditions of employment constitutes a necessitous and
compelling reason for a claimant to voluntarily terminate employment. Morgan v.
Unemployment Compensation Board of Review, 108 A.3d 181, 187 (Pa. Cmwlth.
2015).
In reviewing an unemployment compensation decision, the legal
conclusions reached by the Board based on its findings of fact are subject to this
Court’s plenary review; however, the Board is the ultimate finder of fact,
empowered to make credibility determinations and accept or reject the testimony
of witnesses, in whole or in part, as well as to weigh the evidence in making its
findings. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383,
1388 (Pa. 1985). Where supported by substantial evidence, the Board’s findings
are conclusive on appeal. Taylor v. Unemployment Compensation Board of
Review, 378 A.2d 829, 831 (Pa. 1977). Substantial evidence is such relevant
evidence that a reasonable mind might consider adequate to support a conclusion.
Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255
(Pa. Cmwlth. 2001).
In the instant matter, the Referee found that Claimant was informed
that his job would involve driving and that it would involve driving at night. (R.
Item 10, F.F. ¶¶3-4.) The Referee credited the testimony of Employer’s witness,
Mr. Jenkins, who stated that it “was communicated to [Claimant] at the interview
that he would be driving at least half the time. His start time was 1:30 a.m. It does
involve night driving. During his last two months of work he drove 9 routes out of
the 34 workdays.” (R. Item 9, H.T. at 7; R. Item 10, Discussion at 2.) The Referee
did not credit Claimant’s testimony that he “wasn’t hired to drive.” (R. Item 9,
H.T. at 15.) The Referee’s findings, adopted by the Board as its own, were based
5
on credible testimony in the record. This credible testimony is such relevant
evidence that a reasonable mind might consider as adequate to support a
conclusion. Therefore, the Referee’s findings are supported by substantial
evidence and because the Referee’s findings were adopted by the Board, these
findings are conclusive on appeal.
Claimant’s argument asks this Court to review the testimony before
the Referee and make our own findings and credibility determinations, ones which
would credit and support Claimant’s version of events. What Claimant asks of this
Court is not a proper function of our review of unemployment compensation
matters. Tapco v. Unemployment Compensation Board of Review, 650 A.2d 1106,
1109 (Pa. Cmwlth. 1994) (the fact that a claimant may have “a different version of
the events, or that [a claimant] might view the testimony differently than the
Board, is not grounds for reversal if substantial evidence supports the Board’s
findings.”). Based on the findings of fact made by the Referee and adopted by the
Board, Claimant has not met his burden to establish that circumstances existed
which produced real and substantial pressure to terminate employment and such
circumstances would compel a reasonable person to act in the same manner as
Claimant.
Accordingly, the order of the Board is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Ames, :
:
Petitioner :
:
v. : No. 2421 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 3rd day of June, 2016, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge | 01-03-2023 | 06-03-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209054/ | 15-1147 (L)
Vera v. The Republic of Cuba
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
ORDERS FILED AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd
day of June, two thousand sixteen.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
ALDO VERA, JR., as Personal Representative of the Estate of Aldo Vera, Sr.,
Plaintiff-Appellee,
and
JEANNETTE FULLER HAUSLER, as Successor Personal Representative of the Estate of Robert Otis
Fuller; GUSTAVO E. VILLOLDO, individually and as Administrator, Executor, and Personal
Representative of the Estate of Gustavo Villoldo; ALFREDO VILLOLDO,
Petitioners-Appellees,
-v.-
Nos. 15-1147 (L), 15-1796 (CON)
THE REPUBLIC OF CUBA,
Defendant,
and
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
Respondent-Appellant.1
1
The Clerk of Court is directed to amend the caption as set forth above.
FOR APPELLANT: KENNETH A. CARUSO, Kelly A. Bonner &
Harold W. Williford, White & Case LLP,
New York, New York.
FOR PLAINTIFF-APPELLEE: ROBERT A. SWIFT, Kohn, Swift & Graf,
P.C., Philadelphia, Pennsylvania; Jeffrey E.
Glen, Anderson Kill P.C., New York, New
York.
FOR PETITIONER-APPELLEE JAMES W. PERKINS & David Baron,
JEANNETTE FULLER HAUSLER: Greenberg Traurig, LLP, New York, New
York; Robert Martinez, Esq. & Ronald W.
Kleinman, Esq., Coral Gables, Florida.
FOR PETITIONERS-APPELLEES ROARKE MAXWELL & Andrew C. Hall,
Hall,
GUSTAVO VILLOLDO & ALFREDO Lamb & Hall, P.A., Miami, Florida; Edward
VILLOLDO: H. Rosenthal & Beth I. Goldman, Frankfurt
Kurnit Klein & Selz, P.C., New York, New
York.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the appeals are DISMISSED for lack of appellate jurisdiction.
In this turnover proceeding brought pursuant to the Foreign Sovereign Immunities Act, 28
U.S.C. §§ 1330, 1602–1611 (“FSIA”), and Federal Rule of Civil Procedure 69(a) to enforce the
Petitioners’ judgments against the Republic of Cuba, third-party defendant Banco Bilbao Vizcaya
Argentaria, S.A. (“BBVA”) appeals from March 17 and May 8, 2015 orders of the United States
District Court for the Southern District of New York (Alvin K. Hellerstein, Judge). The district
court directed BBVA to turn over funds held in an account at its New York branch that were
originated in an electronic funds transfer by an agency of the Cuban government, and denied
BBVA’s motion for reconsideration. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal. Because the orders are not final under
28 U.S.C. § 1291 and are not appealable interlocutory orders under the collateral order doctrine or
§ 1292(a)(1), the appeals are dismissed for lack of jurisdiction.
-2-
Our appellate jurisdiction is generally limited to “final decisions” of the district court. 28
U.S.C. § 1291. The final judgment in Rule 69(a) proceedings is the “judgment that concludes the
collection proceedings.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 205 (2d Cir. 2012).
BBVA concedes that the district court’s orders do not conclude the collection proceedings and are
therefore not “final” under § 1291, but contends that they are nonetheless appealable under the
collateral order doctrine.
An order is collateral if it (i) “conclusively determines the disputed question,” (ii) “resolve[s]
an important issue completely separate from the merits of the action,” and (iii) would “be effectively
unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006). BBVA
argues that the district court’s orders are collateral because they conclusively determine the issue
of whether the Petitioners’ judgments are void for lack of subject matter jurisdiction, that issue is
separate from the merits issue of “collection of assets,” and the orders would be effectively
unreviewable on appeal from a final judgment because they involve a denial of Cuba’s immunity
from suit. Appellant’s Br. at 1–2.
In the context of the FSIA, however, we have repeatedly distinguished between claims of
immunity from suit, denials of which are appealable collateral orders, and claims of immunity from
attachment, denials of which are not appealable. Blue Ridge Investments, L.L.C. v. Republic of
Argentina, 735 F.3d 72, 80 (2d Cir. 2013) (citing Kensington Int’l Ltd. v. Republic of Congo, 461
F.3d 238, 240 (2d Cir. 2006)). That distinction exists because immunity from suit is effectively lost
if a party is wrongfully required to endure the burdens of litigation, while an order denying
immunity from attachment is akin to an order requiring the posting of security, which will “generally
cause no irreparable loss in that parties posting security will be repaid with interest if they prevail.”
-3-
Caribbean Trading & Fid. Corp. v. Nigeria Nat’l Petroleum Corp., 948 F.2d 111, 114 (2d Cir.
1991); see also Kensington, 461 F.3d at 241–42 (holding that order requiring foreign sovereign to
post security, which is “indistinguishable from an order of attachment,” was not immediately
appealable and could be considered only on petition for a writ of mandamus). Here, because the
district court’s orders require BBVA to turn over funds held on behalf of a Cuban agency or
instrumentality, they involve the denial of immunity from attachment, rather than suit, and are not
collateral.
Attempting to avoid this well-settled rule, BBVA urges that “even if there were some bar to
collateral-order appeal where the case involves immunity from execution, such bar would not apply
here” because the “real issue” is “immunity from suit.” Appellant’s Reply Br. at 7. The only reason
that Cuba has immunity from execution, BBVA contends, is because the judgments are void, and
the only reason that the judgments are void is because Cuba has immunity from suit; consequently,
this case “involve[s] a threshold determination of FSIA immunity from suit.” Id. (alteration in
original) (quoting Blue Ridge, 735 F.3d at 80). We disagree. Although the district court’s orders
implicate Cuba’s immunity from suit, that is the case with every order of attachment in the FSIA
context because a court is always required to confirm that it has subject matter jurisdiction. See
Walters v. Indus. & Comm. Bank of China, Ltd., 651 F.3d 280, 286–87 (2d Cir. 2011). BBVA’s
position would collapse the distinction between orders denying immunity from suit and those
denying immunity from attachment.
The district court’s orders also are not collateral because they did not “conclusively
determine” the question of Cuba’s immunity from suit. That issue was instead resolved by the
district court’s August 22 and September 9, 2014 orders, which denied BBVA’s motion to dismiss
-4-
for lack of subject matter jurisdiction and denied reconsideration. To be sure, in its March 17, 2015
opinion and order and accompanying turnover order, the district court reiterated that it had subject
matter jurisdiction. Special App’x at 38, 46. Neither order, however, broke new ground as far as
jurisdiction is concerned. The reiteration of a prior determination (made in the August 22 and
September 9, 2014 orders) that was immediately appealable does not render the March 17 order
collateral. See Lora v. O’Heaney, 602 F.3d 106, 111–12 (2d Cir. 2010) (holding that order denying
reconsideration of denial of qualified immunity was not immediately appealable because the earlier
order had “conclusively determined” the qualified immunity question). Had BBVA wished to
appeal the denial of immunity from suit, it could have appealed one or both of the August 22 and
September 9, 2014 orders.
As an alternative, BBVA asserts that we have jurisdiction under 28 U.S.C. § 1292(a)(1),
which provides that “the courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory
orders of the district courts of the United States . . . granting . . . injunctions.” BBVA relies upon
the following provision in the turnover order:
Each and every party to this proceeding is hereby and shall be
restrained and enjoined from instituting or prosecuting any claim or
action against the Garnishee Banks in any jurisdiction arising from
or relating to any claim or action against the Garnishee Banks in any
jurisdiction arising from or relating to any claim to the Noticed Phase
I Account at BBVA which BBVA turns over to the U.S. Marshal in
compliance with this Order.
Special App’x at 49. However, § 1292(a)(1) functions only as a narrowly tailored exception to the
policy against piecemeal appellate review. Accordingly, in the absence of a motion specifically
seeking injunctive relief, BBVA must show that the order “(1) might have a serious, perhaps
irreparable consequence; and (2) can be effectually challenged only by immediate appeal.”
-5-
Bridgeport Guardians, Inc. v. Delmonte, 537 F.3d 214, 220 (2d Cir. 2008). Here, the turnover order
granted injunctive relief to BBVA but did so in response to the Petitioners’ motion specifically
seeking a turnover of funds, and we have recognized that an order providing for attachment or
turnover does not constitute injunctive relief unless the adversely affected party is required to bring
the property in from out-of-state. See, e.g., In re Feit & Drexler, Inc., 760 F.2d 406, 411–12 (2d Cir.
1985) (distinguishing order requiring surrender for attachment of property already in state, which
is not appealable under § 1292(a)(1), from order requiring party to bring property in from out-of-
state, which is); Koehler v. Bank of Bermuda, Ltd., 544 F.3d 78, 82 (2d Cir. 2008) (turnover order
was immediately appealable injunction because it required property to be brought into the state
(citing In re Feit, 760 F.2d at 412)). Indeed, were the rule otherwise, every turnover order in this
sprawling action involving nineteen financial institutions and thousands of accounts would be
subject to immediate appeal.
Because the court’s order was made in response to the Petitioners’ request for a turnover and
does not require BBVA to bring funds into New York, BBVA must show that the order might have
a serious, irreparable consequence and can be effectively challenged only by immediate appeal. We
do not believe that BBVA has made such a showing for the same reason that orders denying
immunity from attachment are not immediately appealable under the collateral order doctrine: the
mere loss of funds pending final judgment can be remedied on appeal through recovery of the funds
with interest. Nor does the mere possibility that BBVA could be held liable on the discharged debt
in a foreign court demonstrate that we are “dealing with circumstances of some urgency.” Sahu v.
Union Carbide Corp., 475 F.3d 465, 468 (2d Cir. 2007) (alterations adopted) (quoting Huminski v.
Rutland City Police Dep’t, 221 F.3d 357, 360 (2d Cir. 2000) (per curiam)).
-6-
We have considered BBVA’s remaining arguments and find them to be without merit.
Accordingly, we DISMISS the appeals for lack of appellate jurisdiction.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
-7- | 01-03-2023 | 06-03-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031266/ | NUMBER 13-16-00314-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
CHANTELLA MARIE ROSALES, Appellant,
v.
ROBERT JACOB MORALES, Appellee.
____________________________________________________________
On appeal from the 148th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam
Appellant, Chantella Marie Rosales, appealed a judgment entered by the 148th
District Court of Nueces County, Texas. On June 17, 2016, the Clerk of this Court
notified appellant that the notice of appeal failed to comply with Texas Rule of Appellate
Procedure 9.5, and 25.1(d),(e). See TEX. R. APP. P. 9.5, and 25.1(d),(e). The Clerk
directed appellant to file an amended notice of appeal with the district clerk's office within
30 days from the date of that notice. On August 16, 2016, the Clerk notified appellant
that the defect had not been corrected and warned appellant that the appeal would be
dismissed if the defect was not cured within ten days. Appellant has not responded to
the notice from the Clerk or corrected the defect.
An appellate court may dismiss a civil appeal for want of prosecution or failure to
comply with a notice from the clerk requiring a response or other action within a specified
time. See TEX. R. APP. P. 42.3(b),(c). The Court, having considered the documents on
file, and appellant’s failure to correct the defect, is of the opinion that the appeal should
be dismissed. See id. 37.3, 42.3(b),(c). Accordingly, the appeal is DISMISSED for want
of prosecution and failure to comply with a notice from the Court. See id.
PER CURIAM
Delivered and filed the
2nd day of September, 2016.
2 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4049070/ | S&0-I5
ELECTRONIC RECORD
COA # 07-14-00441-CR OFFENSE: OTHER CRIMINAL
Robert Wayne Leisher v. The State
STYLE: ofTexas COUNTY: Dallas
COA DISPOSITION: Affirmed TRIAL COURT: Criminal District Court No. 2
DATE: 04/16/2015 Publish: NO TC CASE #: F-1457156-1
IN THE COURT OF CRIMINAL APPEALS
Robert Wayne Leisher v. The State
STYLE: ofTexas CCA#:
5bO-fS
PRO -IE Petition CCA Disposition:
FOR DISCRETIONARY REVIEW IN CCA IS: DATE:
JUDGE:
DATE: {JMJUilL
ojtefljr SIGNED: PC:_
JUDGE: <h/,4 PUBLISH: DNP:
MOTION FOR
REHEARING IN CCA IS:
JUDGE:
ELECTRONIC RECORD | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033552/ | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN A. SEIGARS, DOCKET NUMBER
Appellant, DA-0752-15-0091-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 14, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony W. Walluk, Esquire, San Antonio, Texas, for the appellant.
Kyle Little, Esquire, Randolph Air Force Base, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the administrative
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, a GS-12 Air Traffic Control Specialist (Terminal) with the
80th Flying Training Wing at Sheppard Air Force Base in Texas, was removed for
“Deliberate Misrepresentation.” The agency charged that, between approximately
January 1 and May 1, 2014, he inflated the hours he worked by submitting
Automated Time Attendance and Production System (ATAAPS) entries or other
time cards showing that he worked approximately 91.75 hours more than he
actually did. The agency referenced 22 incidents representing approximately
$5000 in pay. Initial Appeal File (IAF), Tab 4, Subtabs 4a-4b, 4h. In effecting
the action, the agency considered the appellant’s past disciplinary record, an
August 26, 2014 letter of reprimand he received for sleeping on duty. Id.,
Subtab 4h.
¶3 On appeal, the appellant argued that the penalty of removal was too harsh.
IAF, Tab 1 at 3. He requested a hearing. Id. at 2. During adjudication, the
appellant acknowledged the errors that occurred in his time and attendance
records, but he claimed that they were unintentional and were caused by the
agency’s lack of supervisory oversight and its failure to properly train employees
on the ATAAPS. IAF, Tab 15.
¶4 In her initial decision, the administrative judge found that the agency
proved the elements of misrepresentation by preponderant evidence. IAF,
3
Tab 25, Initial Decision (ID) at 6. Specifically, she found that the agency proved
that the appellant supplied incorrect information and that he did so knowingly
with the intention of defrauding, deceiving, or misleading the agency. ID at 6-9.
The administrative judge further found that the agency’s action promotes the
efficiency of the service, ID at 9, and that removal is a reasonable penalty for the
sustained charge, ID at 9-14, and she affirmed the agency’s action, ID at 1, 14.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
¶6 The appellant does not deny that he provided incorrect information, but he
contends that the administrative judge erred in finding that he did so with the
intention of defrauding, deceiving, or misleading the agency. The intent to
defraud or mislead the agency may be established by circumstantial evidence or
inferred when the misrepresentation is made with a reckless disregard for the
truth or with conscious purpose to avoid learning the truth. See Whelan v. U.S.
Postal Service, 103 M.S.P.R. 474, ¶ 6 (2006), aff’d, 231 F. App’x 965 (Fed. Cir.
2007). Whether intent has been proven must be resolved by considering the
totality of the circumstances, including the appellant’s plausible explanation, if
any. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 10 (2014).
¶7 In finding that the agency established intent, the administrative judge first
found that the appellant’s testimony that he did not know how to enter leave in
the ATAAPS until after he was confronted with the attendance discrepancies was
at odds with his having correctly inputted a number of hours of annual and sick
leave during the period at issue. ID at 7. She also considered the appellant’s
testimony that he could not open the PowerPoint slides that the agency provided
to employees to explain the ATAAPS but found it contrary to the credible
testimony of the 80th Flying Training Wing Resource Advisor that the appellant
had called her office several times for assistance in using the System and that she
provided such assistance to him. In addition, the administrative judge considered
the appellant’s claim that he might have supplied wrong information because he
4
did not know how to make changes to time cards that already had been submitted
until after the period at issue but found it inconsistent with the testimony of one
of his coworkers that, when he had to change a time card after it had been
submitted, he asked for and received assistance either from his certifier or from
the Wing Resource Advisor. ID at 7-8. The administrative judge also found the
appellant’s claim that his ATAAPS entries were simply innocent errors
inconsistent with what she found was a pattern of his claiming more time than he
actually worked and less leave than he actually took, information that he could
access that should have revealed the discrepancies to him and which demonstrated
on his part a reckless disregard for the truth. The administrative judge further
found that the appellant personally benefited from his deception. ID at 8.
¶8 In disputing the administrative judge’s finding that the agency proved that
he provided the wrong information with the intention of defrauding, deceiving, or
misleading the agency, PFR File, Tab 1 at 3-6, the appellant challenges the
administrative judge’s finding that the Wing Resource Advisor was credible in
her hearing testimony, whereas the appellant himself was not, id. at 3-4. To
resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state
which version she believes, and explain in detail why she found the chosen
version more credible, considering a number of factors, as appropriate, set forth
by the Board in its seminal case of Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987) (factors comprising the witness’s opportunity and capacity to
observe the event or act in question, the witness’s character, prior inconsistent
statement by the witness, a witness’s bias, or lack of bias, the contradiction of the
witness’s version of events by other evidence or its consistency with other
evidence, the inherent improbability of the witness’s version of events, and the
witness’s demeanor). The Board must give due deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing; the Board
5
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002). Here, the administrative judge found that the Wing Resource Advisor
testified in a very clear, direct, and straightforward manner and that she was an
extremely credible and knowledgeable witness, ID at 7, but that the appellant’s
testimony was not clear, direct, or straightforward and was inconsistent with
specific evidence of record, which she detailed, ID at 6. Because the appellant
has failed to provide sufficiently sound reasons for overturning the administrative
judge’s credibility determinations that were based on her observations of the
witnesses’ demeanor, we find it appropriate to defer to them. Haebe, 288 F.3d
at 1302.
¶9 The appellant also argues that the administrative judge did not consider his
claim that the only training the agency provided on ATAAPS, PowerPoint slides,
did not provide adequate assistance for him in submitting his time and attendance
records as evidenced by the fact that other employees had to ask for help. PFR
File, Tab 1 at 5. On the contrary, the administrative judge did address this claim,
but she found, considering the testimony of one of the appellant’s witnesses, that
assistance was available and that the appellant took advantage of such assistance.
ID at 7.
¶10 The appellant also argues on review that, in finding that the appellant’s
actions were intentional, the administrative judge failed to give proper
consideration to the fact that he had numerous illnesses and hospitalizations
during the period at issue, causing him to use more leave than he had in the past,
and that he had no motive to falsify his entries because he had sufficient leave
balances when the first of his errors occurred and had recently won a significant
amount of money in the lottery. PFR File, Tab 1 at 4, 8. These claims are
properly considered under the totality of the circumstances in connection with the
plausibility of the appellant’s explanation. Boo, 122 M.S.P.R. 100, ¶ 10. As
noted, the administrative judge did consider the appellant’s claim that he did not
6
know how to properly request leave on the ATAAPS, but found it incredible. ID
at 8. Whether the appellant had a motive to falsify his time and attendance is not
indicative of whether he acted intentionally since motive reflects only an
individual’s inducement to do an act. Black’s Law Dictionary 891 (9th ed. 2009).
In any event, to the extent that the administrative judge may have considered the
appellant’s leave balances or his lottery winnings, it is well established that
failure to mention all of the evidence of record does not mean that the
administrative judge did not consider it in reaching her decision. Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶11 The appellant also argues on review that, in analyzing the penalty, the
deciding official failed to properly consider the factors set forth by the Board in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). PFR File,
Tab 1 at 11-12. Specifically, the appellant contends that the deciding official
did not give adequate consideration to his lack of prior discipline, the fact that the
incidents did not affect his function at work, that “he did not have notice until
afterwards,” and that his numerous medical problems during the period at issue
resulted in a high number of days absent. Id. at 12.
¶12 The record reflects that the appellant received a letter of reprimand on
August 26, 2014, for an incident of sleeping on duty that occurred on May 29,
2014. IAF, Tab 4, Subtab 4i, Subtab 4n at 1. In the Douglas factor checklist that
the deciding official completed, he noted the letter of reprimand under
Employee’s Past Disciplinary Record but indicated that it was a “neutral” factor,
not aggravating or mitigating, id., Subtab 4c at 2, and at hearing, he testified that
the letter of reprimand was not a significant factor in his penalty analysis,
Hearing Compact Disc (HCD). The administrative judge found that the letter of
reprimand met the criteria for consideration as past discipline, Bolling v.
Department of the Air Force, 9 M.S.P.R. 335, 339‑40 (1981) (stating that the
Board’s review of a prior disciplinary action is limited to determining whether
7
that action is clearly erroneous, if the employee was informed of the action in
writing, the action is a matter of record, and the employee was permitted to
dispute the charges before a higher level of authority than the one that imposed
the discipline), but she credited the deciding official’s testimony that he was not
influenced by the letter of reprimand, and it does not appear that the
administrative judge construed it to be an aggravating factor in her review. ID
at 13. In fact, the appellant should not have been considered to have had any past
discipline because, at the time of the offense for which he was removed
(January‑May 2014), he had no disciplinary record, as the letter of reprimand was
issued on August 26, 2014. See Wigen v. U.S. Postal Service, 58 M.S.P.R. 381,
384‑85 (1993). To the extent that the administrative judge erred in considering
the letter of reprimand, however, any such error did not prejudice the appellant’s
substantive rights because the administrative judge found, and we agree, that,
even in the absence of any prior discipline, removal is a reasonable penalty for
the sustained charge. Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984).
¶13 In considering the effect of the appellant’s offense on his ability to perform
his duties and on his supervisor’s confidence in him, the deciding official
acknowledged that the appellant’s misconduct did not affect his ability to do his
job or his supervisor’s confidence or trust in his ability to do his job, but that it
did affect his confidence in the appellant’s ability to uphold the organization’s
mission. IAF, Tab 4, Subtab 4c at 3. The deciding official’s testimony was in
accord as he described the appellant’s high level of responsibility as a Watch
Supervisor and instructor in the Air Traffic Control facility and explained that the
misconduct he committed diminished the overall trust he had in the
appellant. HCD.
¶14 Regarding the appellant’s claim that he “did not have notice until
afterwards,” the deciding official determined, and the administrative judge found,
8
that the appellant knew or should have known, when he completed his time and
attendance records as he did, that he was representing that he worked
approximately 91.75 hours more than he actually did. IAF, Tab 4, Subtab 4b; ID
at 8. That conclusion is unaffected by the fact that the agency did not discover
the discrepancies until sometime after the appellant entered the data.
¶15 The appellant next argues that his medical problems and related absences
should have been considered a mitigating factor, rather than a “neutral” factor as
the deciding official described it. He found that the appellant’s medical problems
and absences did not affect his ability to properly fill out his time card or
otherwise affect his judgment. IAF, Tab 4, Subtab 4c at 7. The administrative
judge agreed, finding that any claim that the appellant’s sleep apnea contributed
to his misconduct was inconsistent with evidence that he otherwise performed
adequately at work and submitted leave in ATAAPS properly for some absences.
ID at 12.
¶16 Because the agency’s charge has been sustained, the Board’s review of the
penalty selection is limited to determining whether it is so excessive as to be an
abuse of discretion or is otherwise arbitrary, capricious, or unreasonable.
Douglas, 5 M.S.P.R. at 302. The administrative judge found that the deciding
official carefully considered the appropriate Douglas factors, both aggravating
and mitigating, in determining to remove the appellant, and that removal for the
sustained charge is otherwise within the tolerable limits of reasonableness. ID
at 10-13. In considering the appellant’s challenges to that finding, we agree that
his misconduct is serious, that his actions caused his supervisor to lose trust in
him, that no similarly situated employees were treated more favorably, 2 that the
appellant was aware that his actions would be considered inappropriate, that he
2
The agency found that, during the period at issue, two of the appellant’s coworkers
also had discrepancies in their time and attendance records, but that, because the
coworkers had only minor infractions of 3 hours and 8¼ hours, as opposed to the
appellant’s 91.75 hours, they were not valid comparators. IAF, Tab 4, Subtab 4d at 1-2.
9
lacked rehabilitative potential based on his refusal to take responsibility for his
actions, and that there was a lack of alternative sanctions to deter such actions in
the future. Further, we agree with the administrative judge that, notwithstanding
the appellant’s years of service and acceptable performance, the penalty of
removal is within the tolerable limits of reasonableness for the sustained charge.
¶17 Accordingly, we affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
10
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209069/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristoffer Orwig :
:
v. : No. 286 C.D. 2015
: SUBMITTED: April 29, 2016
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: June 3, 2016
The Commonwealth of Pennsylvania, Department of Transportation
(Department), Bureau of Driver Licensing, appeals from an order of the Court of
Common Pleas of Lycoming County sustaining the statutory appeal of Licensee,
Kristoffer Orwig, from a one-year suspension of his operating privilege imposed
by the Department pursuant to its receipt of a report of a ten-year old conviction
from the York County Clerk of Courts for violation of Section 3802(d)(1)(i) of the
Vehicle Code (Code), 75 Pa. C.S. § 3802(d)(1)(i), driving under the influence of a
Schedule I controlled substance. In support of its decision to sustain Licensee’s
statutory appeal, common pleas cited the ten-year delay in imposing the suspension
and the Department’s knowing reliance on the flawed system of the York County
Clerk of Courts to provide it with records of conviction in a timely manner
pursuant to Section 6323(1)(i) of the Code.1 Based on our determination that the
present case satisfies the extraordinary circumstances exception for the invalidation
of an operating privilege suspension as set forth in our recent decision in Gingrich
v. Department of Transportation, Bureau of Driver Licensing, ___ A.3d ___ (Pa.
Cmwlth., No. 748 C.D. 2015, filed March 30, 2016), we affirm.2
The pertinent background is as follows. After its October 2014
receipt of Licensee’s May 14, 2004, record of conviction from the York County
Clerk of Courts, the Department by official notice dated and mailed November 4,
2014, advised Licensee that his operating privilege was being suspended for one
year, effective December 9, 2014, as a consequence of his conviction for violating
1
Section 6323(1)(i) of the Code provides as follows:
§ 6323. Reports by courts
Subject to any inconsistent procedures and standards
relating to reports and transmission of funds prescribed pursuant to
Title 42 (relating to judiciary and judicial procedure):
(1) The following shall apply:
(i) The clerk of any court of this Commonwealth,
within ten days after final judgment of conviction or acquittal or
other disposition of charges under any of the provisions of this title
or under section 13 of the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug, Device and Cosmetic
Act, including an adjudication of delinquency or the granting of a
consent decree, shall send to the department a record of the
judgment of conviction, acquittal or other disposition.
75 Pa. C.S. § 6323(1)(i) (emphasis added).
2
Due to his failure to file a brief within the prescribed time period, this Court precluded
Licensee from filing a brief in this matter.
2
Section 3802 of the Code on March 1, 2004.3 Licensee’s pro se statutory appeal
followed.4
At the February 2015 de novo hearing before common pleas, counsel
for the Department acknowledged the statewide issue regarding the York County
Clerk of Court’s untimely report of convictions to the Department and expressed
sympathy with Licensee’s position. Counsel nonetheless argued that, because the
ten-year delay was not attributable to the Department, the court should uphold
Licensee’s suspension in accordance with established case law.5 In response,
Licensee raised a statute of limitations defense and represented to the court that,
regardless of the locus of fault, he would be prejudiced by the suspension.
Specifically, Licensee stated: “My life is completely different from what it was ten
years ago. Maybe losing my license then wouldn’t have really mattered much, but
3
As the Department acknowledges in its brief, its notice incorrectly referenced May 14,
2014, as the date of conviction and not May 14, 2004. February 3, 2015, Hearing,
Commonwealth Exhibit No. C-1; Reproduced Record (R.R.) at 25a. Licensee, who appeared pro
se before common pleas at the de novo hearing, did not object to the admission of the
Department’s exhibit. There is no dispute, however, that the conviction occurred in May 2004
and, indeed, the exhibit also includes a report from the Clerk of Courts reflecting a 2004
conviction date and the Department’s October 2014 receipt of that report. Id. at 27a.
4
Pursuant to Section 1550(b)(1)(i) of the Code, 75 Pa. C.S. § 1550(b)(1)(i), the Department
afforded Licensee the automatic supersedeas that, with few exceptions, accompanies a statutory
appeal. February 3, 2015, Hearing, Commonwealth Exhibit No. C-1; R.R. at 34a.
5
In Terraciano v. Department of Transportation, Bureau of Driver Licensing, 753 A.2d
233, 236 (Pa. 2000), the Court held that, in order to sustain an appeal of a license suspension
based on delay, a licensee must establish that: (1) an unreasonable delay chargeable to the
Department led the licensee to believe that his operating privilege would not be impaired; and (2)
prejudice would result in having the licensee’s operating privilege suspended after that delay.
Once a licensee raises the delay defense, the Department must then establish that the delay was
caused by something other than administrative inaction. Grover v. Dep’t of Transp., Bureau of
Driver Licensing, 734 A.2d 941, 943 (Pa. Cmwlth. 1999). As a general rule, if the Department
satisfies this burden, then the licensee’s appeal should be dismissed. Id. If it does not meet this
burden, then the burden shifts to the licensee to establish prejudice. Id.
3
now it’s pretty important. And that’s why I’m here.” February 3, 2015, Hearing,
Notes of Testimony (N.T.) at 4; Reproduced Record (R.R.) at 14a.
In sustaining Licensee’s appeal, common pleas determined that it was
unreasonable for the Department to have persisted in relying on York County’s
flawed system and to have applied suspensions without regard to the passage of
time or prejudice to the licensees, when it “was well aware of the break down [sic]
in the system of waiting for the York County Clerk of Courts to supply convictions
to the Department.” April 28, 2015, Opinion of Common Pleas at 3. Common
pleas, therefore, determined that the ten-year delay in imposing the suspension was
attributable to the Department. Moreover, taking into consideration the fact that
Licensee had maintained a clean driving record for over eight years, thereby
demonstrating that he had dramatically improved his behavior, the court credited
his testimony that he would be prejudiced by the loss of his license over ten years
after the conviction at issue. Employing slightly different reasoning and based on
our holding in Gingrich, we agree that the untimely suspension was not warranted.6
In Gingrich, the Department there, as here, attempted to impose a
license suspension upon its receipt of a ten-year-old conviction from the York
County Clerk of Courts. Although it found the Clerk’s delay truly unconscionable,
the court of common pleas of the county in which the licensee filed her appeal
nonetheless reinstated the license suspension in accordance with the well-
established general rule requiring the dismissal of a license suspension appeal
when the delay cannot be attributed to the Department. We reversed, emphasizing
6
This Court may affirm common pleas on different grounds where its result is correct and
the basis on which we affirm is clear from the record. Rabenold v. Zoning Hearing Bd., 777
A.2d 1257, 1263 n.7 (Pa. Cmwlth. 2001).
4
the ongoing applicability of the aforementioned general rule but recognizing an
extraordinary circumstances exception thereto. Specifically, we concluded that the
record demonstrated the requisite extraordinary circumstances for invalidating an
operating privilege suspension that had “lost the underlying public safety purpose
and now simply [was] a punitive measure sought to be imposed too long after the
fact.” Gingrich, ___ A.3d at ___, slip op. at 12. In support of this exception, we
cited the ten-year gap between the conviction at issue and the suspension, the
absence of additional driving-related issues since Gingrich’s last conviction and
her credible testimony regarding the prejudice she would suffer if the Department
implemented the suspension. Accordingly, we determined that the presence of
extraordinary circumstances merited Gingrich’s requested relief.
In the present case, we likewise conclude that the invalidation of the
suspension is warranted, albeit on slightly different grounds than those on which
common pleas relied. Contrary to common pleas’ determination, it is clear that the
ten-year delay was attributable to the York County Clerk of Courts. As the record
reflects, the Clerk electronically transmitted a certified record of Licensee’s May
2004 conviction to the Department in October 2014, and the Department’s Bureau
of Driver Licensing timely sent Licensee a suspension notice in November 2014.
To this extent, the present case is analogous to Gingrich in that it, too, satisfies the
extraordinary circumstances exception to the general rule that only delays
attributable to the Department be vacated. As in Gingrich, the Clerk in the instant
case did not report the conviction at issue for an extraordinarily extended period of
time, the licensee’s driving record was devoid of further violations for a significant
number of years preceding the report, and the licensee was able to demonstrate
5
prejudice.7 Therefore, regardless of attribution of delay, common pleas’
invalidation of the license suspension was proper.
Accordingly, we affirm.8
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
7
We reject the Department’s argument that Licensee failed to establish prejudice. Common
pleas found credible his testimony that his life is now completely different than in May 2004,
that his license is important to him and that losing it would matter more now than it would have
mattered ten years ago. In support of its credibility finding, common pleas further noted that
Licensee did not have any driving infractions after 2007. Thus, contrary to the Department’s
contention, the fact that Licensee did not testify with more specificity regarding detrimental
reliance on the delay is of no moment.
8
In concluding that Gingrich controls the present case, we echo our observation therein that
we are not creating a bright-line rule regarding the requisite number of years that will trigger
sufficient prejudice for sustaining a licensee’s statutory appeal due to delay. Id. at ___, slip op.
at 13 n.7. In addition, we reiterate that the specific circumstances of each case must be
considered and that such relief is limited to extraordinary circumstances.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristoffer Orwig :
:
v. : No. 286 C.D. 2015
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
ORDER
AND NOW, this 3rd day of June, 2016, the order of the Court of
Common Pleas of Lycoming County is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge | 01-03-2023 | 06-03-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031268/ | THE THIRTEENTH COURT OF APPEALS
13-16-00314-CV
Chantella Marie Rosales
v.
Robert Jacob Morales
On appeal from the
148th District Court of Nueces County, Texas
Trial Cause No. 2012-FAM-5741-E
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against
appellant.
We further order this decision certified below for observance.
September 2, 2016 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430025/ | On June 30, 1926, Howard V. Wilson, nine years of age, met his death by reason of coming in contact with, or in close proximity to, a wire charged with 6,600 volts of electricity. The plaintiff, administratrix, brings this action to 1. NEGLIGENCE: recover damages against the Electric Light acts or Company and two of the employees of said omissions company. At the close of the evidence, the court constitu- sustained the motion of defendants for a ting: water directed verdict, which challenges the tank and sufficiency of the evidence upon the question of electric the negligence of the defendants. For the transformer determination of this question, it will be not necessary to refer somewhat in detail to the attractive evidence. nuisance.
Some years ago, the De Soto Brick Tile Company began the operation of a brick and tile manufacturing plant in the town of De Soto. There was constructed upon the real estate owned and operated by said company a water tank, which is 16 feet in diameter and 10 feet 10 inches in height. This tank was constructed of hollow tile, each tile being 12 inches long, 5 inches wide, and 8 inches thick, and laid so that the 8-inch surface is exposed. The mortar between the layers is a little over a half inch thick. There was a sort of cornice at the upper edge of the wall, made by three tiers of brick, and arranged so that the lower tier extended outward beyond the upper row of hollow tile two or two and a half inches, and each of the two upper rows extended the same distance farther out from the row of brick immediately thereunder. The tank is in circular *Page 933
form, and the outer surface is perpendicular from the ground up to the first row of brick hereinbefore mentioned. For the purpose of carrying away the excess water, an overflow pipe (argued by both parties to be 1 1/4 inch in diameter) was attached at the top of the tank, and extended down into the ground. The distance between the overflow pipe and the perpendicular wall of the tank is 8 inches. In 1920, the defendant Electric Light Company obtained the consent of the Brick Tile Company to place on the top of said water tank two transformers: one for the purpose of "stepping down" the voltage for use in the Brick Tile Company, and the other for the supply of electricity in the town of De Soto. These transformers were of standard construction, about 4 feet in height. Approaching the transformer from the line of the Light Company was a current of electricity of 6,600 voltage. At a point from 5 1/2 to 6 feet from the ground, there are attached to the overflow pipe two small wires, in no way charged with electricity, which served as ground wires for the transformer installation. No claim is made that these wires were in any way accountable for the injury to the boy. For some time prior to the time of the injury, the Brick Tile Company had ceased operation, and at the time in question, its property was in the possession of the state superintendent of banking. After the cessation of operations of the Brick Tile Company, the transformer used for the supply of electrical current for said company was disconnected. In addition to the water tank, there were situated on the Brick Tile Company's grounds an office, a main building, and other property, such as is usually convenient and necessary for the business of such a concern. There is an unimproved roadway which runs about 10 feet west of the aforesaid tank. There is a road running in the opposite direction south of the tank about 50 feet distant. From 6 to 10 feet from the tank there is a well, with a pump. Various parties procured water for family use at said well, and no objection to the same was ever made. At times, various boys played on the grounds of the Brick Tile Company, with little cars on the tracks theretofore used, and "hide and go seek" in and around the buildings. In connection with the buildings thereon situated, wild pigeons and sparrows found a harboring place, and they and their nests became objects of interest to the boys. There was *Page 934
no warning or danger sign relative to the high voltage of the electricity entering the transformer. Prior to the time in question, no child had ventured upon the tank into the place of danger. On the 30th day of June, 1926, his older brother was at the well near the tank, when this boy, then nine years of age, approached. In the top tier of the block construction, about a foot and a half from the overflow pipe, was a tile, which in some manner had been broken, and in it a sparrow had constructed its nest. The boy spied the nest and started to get it, seized the overflow pipe, and, either by shinning or by placing his feet against the wall, with his hands clasped to the pipe, made the ascent to the top of the tank, and then reached downward, in an effort to get the nest. His older brother said to him: "You better come down. You might fall off." The boy arose, and started in the direction of the pole carrying the heavily charged electrical current; and the back of his head, neck, and shoulders either came in contact with or in close proximity to the heavily charged wire, and as a result thereof, he met his immediate death, by electrocution. These are the important facts, as disclosed by the record.
The question presented by the court's ruling on the motion for a directed verdict in favor of the defendant is whether the evidence is sufficient to support a finding by the jury that the defendants, in the exercise of ordinary care, in the light of the surrounding circumstances, should have reasonably anticipated that a boy would probably climb the overflow pipe connected with the water tank (with no inviting or ready means of ascent), and expose himself to danger from contact with electric wires from 13 to 14 feet above the ground.
In its strictest sense, this is not an "attractive nuisance" case, although the factors which are given prominence in such cases are pertinent here.
Since the transformer and the electric line connected therewith, by permission of the Brick Tile Company, were located upon its land, the boy, at the time in question, was not a trespasser, in so far as the defendants are 2. NEGLIGENCE: concerned. See Lipovac v. Iowa R. L. Co., 202 acts or Iowa 517. Negligence is the doing of something omissions which an ordinarily careful and prudent person, constitu- under the same circumstances, would not do, *Page 935
ting: or the failure to do something which an trespassing ordinarily careful and prudent person, under the as defense. same circumstances, would do. The care exercised by an ordinarily careful and prudent person is in proportion to the apparent danger involved. While one must exercise ordinary care in handling and controlling a dangerous agency or instrumentality, yet he is not an insurer as against injuries befalling others coming in contact therewith. If, under the circumstances of the case, one has no reason to believe or anticipate that another will probably come in contact with the dangerous agency, then he cannot be said to be guilty of negligence.
The appellant's contention is that the sparrow's nest was an attractive feature for the boyish instincts, and that the dangerous instrumentality was in close proximity, and that, because of the sparrow's nest, the defendant should reasonably have anticipated injury such as befell the boy at the time in question. There is no evidence of actual knowledge by the defendants of the sparrow's nest.
The counsel for the respective parties, with commendable diligence, have ably and fully briefed their respective contentions, and have cited many authorities in this and other jurisdictions, bearing upon the legal question presented. To analyze and comment upon the many authorities cited would constitute a volume.
Our latest pronouncement upon this proposition is McKiddy v.Des Moines Elec. Co., 202 Iowa 225, wherein we declared that the application of the doctrine of the "attractive nuisance" cases will depend upon the particular facts of each case, and that no hard and fast rule of liability or nonliability can be fixed in this regard.
In support of her contention, appellant cites and relies upon the following cases: Edgington v. Burlington, C.R. N.R. Co.,116 Iowa 410; McKiddy v. Des Moines Elec. Co., 202 Iowa 225;Connell v. Keokuk Elec. R. P. Co., 131 Iowa 622; ConsolidatedElec. L. P. Co. v. Healy, 65 Kan. 798 (70 P. 884); Talkingtonv. Washington W.P. Co., 96 Wash. 386 (165 P. 87); Stedwell v.City of Chicago, 297 Ill. 486 (130 N.E. 729); Oil Belt Power Co.v. Touchstone (Tex. Civ. App.), 266 S.W. 432; Hayes v. SouthernPower Co., 95 S.C. 230 (78 S.E. 956); Osborn v. Atchison, T. S.F.R. Co., 86 Kan. 440 *Page 936
(121 P. 364); Union Light, H. P. Co. v. Lunsford, 189 Ky. 785
(225 S.W. 741).
In the Edgington case, supra, we announced the doctrine of the "attractive nuisance" cases. In the McKiddy case, supra, we applied the doctrine of the "attractive nuisance" cases, in holding that the crossbar on the top of the electric light pole was an allurement to the childish and sportive instincts of a child, as affording an inviting seat of observation, and that the spikes driven in either side of the pole, from the ground to the cross-arm, constituted, in fact, a ladder, and formed convenient and inviting accessibility to the coveted seat on the cross-arm. There is no ladder formation in the instant case, and the cited case is clearly distinguishable.
In the Connell case, supra, the plaintiff was injured by coming in contact with an uninsulated wire strung over uninclosed property, which wire had been allowed to sag, so that the plaintiff easily came in contact therewith. It is clearly apparent that this case is not analogous to the instant case.
In Consolidated Elec. Light Co. v. Healy, 65 Kan. 798
(70 P. 884), the rule is predicated upon the fact that the charged electric wires were placed within easy reach and in close proximity to the bridge or viaduct upon which children were wont to pass and loiter.
In the Talkington case, 96 Wash. 386 (165 P. 87), a highly charged uninsulated electric wire extended from a pole to a bracket 15 inches above the comb of the roof of a warehouse. Next to the warehouse, and adjoining the same, was a lean-to, the top of which was 8 feet from the ground. The boys of the town were in the habit of climbing up the sides of box cars standing upon a track but a few inches away from the lean-to, stepping from the tops of the box cars onto the roof of the lean-to, and thence, by an easy ascent, climbing onto the roof of the warehouse, which had a slope of 32 degrees. Plaintiff's ward, a boy 10 years of age, had thus climbed onto the roof of the warehouse, and had reached the comb of the roof, when, in steadying himself, he took hold of the electric wires within his reach, and was severely injured. The court predicated its decision upon the easy accessibility to the roof from the box cars.
In Stedwell v. City of Chicago, 297 Ill. 486 (130 N.E. 729), the case bears a marked similarity to the McKiddy case, *Page 937
supra. The wire which caused the injury to the child was 13 feet above the surface of the ground, and a latticework, constituting a ladder formation, afforded the means of accessibility to the place of danger.
In Oil Belt Power Co. v. Touchstone (Tex. Civ. App.), 266 S.W. 432, the place of danger was easily accessible by means of a ladder which had been previously attached to the structure by those in charge.
In Hayes v. Southern Power Co., 95 S.C. 230 (78 S.E. 956), the boy was injured in the window of a transformer house. The school ground was in close proximity, and home base of a ball diamond was quite near the transformer house. In some manner, the boy climbed to the window, about 5 feet from the ground, and came in contact with a live wire, and was injured.
In Osborn v. Atchison, T. S.F.R. Co., 86 Kan. 440
(121 P. 364), a boy was injured while climbing a smokestack situated upon a building. The smokestack was reached by the boy by climbing up cleats upon a door attached to a sloping shed, which was connected with the building upon which the smokestack was located. The cleats upon the door and the sloping shed furnished ready and easy means of accessibility to the smokestack.
In Union Light, H. P. Co. v. Lunsford, 189 Ky. 785
(225 S.W. 741), the boy had resorted to a pond, and was engaged in the shooting of frogs. The transformer house was on the ground about ten feet from the edge of the pond. A frog jumped from the pond and went into the power house, and was followed by the boy, who came in contact with a live wire three feet from the ground, which was easily accessible, by reason of the fact that one of the boards formerly inclosing the power house had been previously removed.
From this analysis of the foregoing cases, it is clearly apparent that they are not analogous to the facts in the instant case. In the case at bar, there are no steps or ladder formation, — nothing but an overflow pipe, eight inches from a perpendicular wall.
In numerous cases of a similar nature, the courts have held in accordance with the ruling of the trial court, in sustaining the motion for a directed verdict. We will content ourselves by a citation of the following authorities: Mayfield W. L. *Page 938 Co. v. Webb's Admr., 129 Ky. 395 (111 S.W. 712); O'Gara v.Philadelphia Elec. Co., 244 Pa. St. 156 (90 A. 529); Graves v.Washington W.P. Co., 44 Wash. 675 (87 P. 956); Howard v. St.Joseph Transmission Co., 316 Mo. 317 (289 S.W. 597); Reddy v.City of Watertown, 53 S.D. 347 (220 N.W. 851); Heller v. NewYork, N.H. H.R. Co., 265 Fed. 192 (17 A.L.R. 823); Key WestElec. Co. v. Roberts, 81 Fla. 743 (89 So. 122); Wetherby's Admr.v. Twin State Gas Co., 83 Vt. 189 (75 A. 8); Keefe v.Narragansett Elec. L. Co., 21 R.I. 575 (43 A. 542); SheffieldCo. v. Morton, 161 Ala. 153 (49 So. 772); Grube v. Mayor ofBaltimore, 132 Md. 355 (103 A. 948); Myer v. Union Light, H. P. Co., 151 Ky. 332 (151 S.W. 941); Parker v. Charlotte Elec. R.Co., 169 N.C. 68 (85 S.E. 33); Devost v. Twin State Gas Elec.Co., 79 N.H. 411 (109 A. 839); Blackstone v. Penn Cent. L. P.Co., 249 Pa. St. 519 (95 A. 95); Minter v. San Diego Cons. G. Elec. Co., 180 Cal. 723 (182 P. 749); Bonniwell v. MilwaukeeL., H. T. Co., 174 Wis. 1 (182 N.W. 468); Brown v. AmericanMfg. Co., 209 A.D. 621 (205 N.Y. Supp. 331); Johnston v. NewOmaha Thomson-Houston Elec. L. Co., 78 Neb. 24 (110 N.W. 711).
Also, see the following Iowa cases, as having some bearing upon the question: Davis v. Malvern L. P. Co., 186 Iowa 884; Nelsonv. Lake Mills Canning Co., 193 Iowa 1346; Hart v. Mason City B. T. Co., 154 Iowa 741; Anderson v. Ft. Dodge, D.M. S.R. Co.,150 Iowa 465.
As is well said in Graves v. Washington W.P. Co., 44 Wash. 675
(87 P. 956):
"Ordinarily a person whose duty it is to furnish protection to others against a dangerous agency fully complies with the law when he provides such a protection as will safely guard against any contingency that is reasonably to be anticipated. He is not legally bound to safeguard against occurrences that cannot be reasonably expected or contemplated as likely to occur."
This is the primary thought expressed in the authorities. In other words, due care consists in guarding, not against possibilities, but only against probabilities. We agree with the ruling of the trial court. *Page 939
It is shown that Fred Macy, one of the defendants, an employee of the Light Company, about an hour after the accident, told one of the witnesses "there was a liability to the case." Such statement was not part of the res gestae, and 3. EVIDENCE: not shown to have been made with authority. It admissions: could in no way be binding upon his employer or by employee: upon the other defendant. Moreover, it clearly competency. appears that, if made, it is only the statement of a legal conclusion. The question of liability is a question to be determined by the court.
The accident is indeed regrettable, and naturally appeals to human sympathy; but we find no error, and the judgment of the trial court is hereby — Affirmed.
MORLING, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430026/ | [1] Defendant employer, Harry Hansen, had not insured his liability as provided by section 87.1 (references are to Code of 1946), nor had he been relieved from so doing pursuant to section87.11. When plaintiff's intestate was injured defendant had more than five persons in hazardous employment. Plaintiff administratrix therefore elected, under sections 87.1 and 87.21, to sue for damages at common law as modified by Code chapter 85 of the Workmen's Compensation Law. Defendant's status is the same as if he had rejected the compensation act. Sections 87.1 and87.21; Martin v. Chase, 194 Iowa 407, 412, 189 N.W. 958.
Defendant owns and operates several buildings in Des Moines, including the Dr. Pepper Building, the Hanwood Apartments, and the Harlan Hotel, situated within a block and a half on Locust Street. Two of defendant's brothers are equitable owners of the Harlan Hotel and assist in the upkeep and management of the three named properties and others. Decedent John Casey, a common laborer, had worked for defendant since the spring of 1944 at $100 a month. He did certain janitor work at *Page 64
the Hanwood Apartments and Harlan Hotel and numerous odd jobs on different properties owned by defendant.
There is evidence that on June 26, 1945, Casey fell from a scaffold in the Dr. Pepper Building, which was under repair from damage by fire, and that he died the following day from injuries sustained in the fall. His widow as administratrix brought this action to recover for his death. A verdict was directed for defendant on the grounds (1) plaintiff failed to prove an injury arising out of and in the course of employment and (2) as a matter of law there was no negligence on defendant's part. The court indicated it felt the first ground was the stronger of the two. Plaintiff has appealed from the resulting judgment against her.
[2] I. The burden rested on plaintiff to prove by a preponderance of evidence that Casey's death resulted from an injury arising out of and in the course of his employment. Gay v. Hocking Coal Co., 184 Iowa 949, 960, 169 N.W. 360; Mitchell v. Swanwood Coal Co., 182 Iowa 1001, 1006, 166 N.W. 391. The term "arising out of" implies some causal relation between the employment and the injury; "in the course of" means during the period of employment and at a place where the employee may be performing the duties of his employment or doing something incident thereto. Otto v. Independent Sch. Dist., 237 Iowa 991, 994, 23 N.W.2d 915, 916, and authorities cited.
In determining whether the motion to direct was erroneously sustained, of course we must consider the evidence in the light most favorable to plaintiff. Mitchell v. Des Moines Coal Co.,182 Iowa 1076, 1078, 165 N.W. 113; Mitchell v. Phillips Mining Co.,181 Iowa 600, 612, 165 N.W. 108. When this is done we think there is substantial evidence that Casey's death resulted from an injury arising out of and in the course of his employment. We will refer to some of the testimony.
Decedent's son worked for defendant some in the spring of 1944 and the spring of 1945. He testified:
"His [Casey's] regular work was to bale paper and take out the garbage at the Hanwood Apartments and Harlan Hotel. However this did not take his full time. If he had not been instructed what to do in the morning he took out the paper and *Page 65
baled it, took out the garbage and then he would go find one of the Hansens, Jack or Harry or any of them and find out what he was going to do next. * * *
"He knocked plaster off the side walls and ceiling at the Hanwood Apartments, Harlan Hotel and East 5th Street. He generally stood on a scaffold to knock the plaster off the ceiling. * * *
"He helped repair the roof of the Dr. Pepper Building in 1945. * * * must have been working repairing the roof a couple of days."
Trent, a plasterer, worked in the Dr. Pepper Building the week before Casey was hurt. He said he saw decedent come to the building at times:
"He was generally there when I got there. When 8 o'clock came Casey went to the hotel or Hanwood I suppose to bale paper and take down garbage. At times I saw Casey do work in the Dr. Pepper Building. One day he worked with me, he pulled up mortar for me. He worked all day that day. * * * Mr. Casey would do one kind of work then another, he was sort of an odd-job man."
Peterson, a carpenter who worked in the Dr. Pepper Building since March, testified:
"I saw Casey in the morning at the Pepper Building several times before we stared work. When work time came he would do whatever work he had to do. Most of the time he would go to the Harlan, take care of the garbage and I don't know any more after that until I saw him off and on around the jobs. I saw Casey working at the Dr. Pepper Building two or three times, he cleaned up, picked up plaster. He also helped carry pipes and lumber around and straighten up things at the Pepper Building."
Harlan C. (Jack) Hansen, defendant's brother, said:
"He [Casey] did general labor for a day or two at the Dr. Pepper Building. I had him take down loose plaster. I served there as foreman. We had two scaffolds in the building. He worked on both knocking down plaster." *Page 66
On the morning Casey was injured he arrived at the Dr. Pepper Building around 7:30. Trent, Peterson, and Estelle were also there. Defendant arrived by 7:45 and told Casey to mix a batch of mortar. Casey replied:
"I can't do it, I am not able. My back won't stand it." According to defendant: "Then I told him, `You better go on with your regular work up to the Harlan and Hanwood * * * of taking care of the garbage and baling paper in those places.'"
The manager of the Harlan testified Casey came there about 8 a.m. and took care of the garbage and papers. The manager of the Hanwood said:
"He [Casey] came to the Hanwood about 10 o'clock. The garbage and paper had already been taken down by my brother. I told Casey the work was done and he said he was glad of it. He was not feeling well. Harry Hansen came. I told him Casey was sick and the work was done and Mr. Hansen said for him to go over to the Harlan Hotel and do the work there if it was not done over there,
and to do what he felt like doing at the Harlan."
Defendant testified he "didn't think much of it" when the Hanwood manager told him Casey was not feeling well "as that was chronic with him."
During the same morning Harlan C. Hansen was "knocking down" plaster from the ceiling of the Dr. Pepper Building. He was standing on a scaffold Peterson had built of two trestles or "horses" about 9 feet high, one at each end, with a floor of 2x12-inch boards, 12 feet long, on top of the trestles. A short time after Casey had been to the Harlan and Hanwood he fell from this scaffold. Apparently no one saw him fall but Harlan C. Hansen heard the thud and he, Trent, and Peterson saw Casey, seriously injured, unable to speak, on the cement floor near the scaffold. Immediately before Casey fell Harlan had knocked down from the ceiling 8 or 9 square feet of plaster. Casey was removed to a hospital, where he died the next day as a result of his injury.
Trent, who was on another scaffold, said: *Page 67
"I heard some noise, but I think it was plastering coming down. I don't know whether he fell or not. I heard a noise like something heavy falling, a crash like somebody falling or some boards. I looked and saw Casey lying there. I don't remember whether there were any boards down from the scaffold."
When Casey's son learned of the injury he and his brother-in-law interviewed defendant. This is the son's testimony, corroborated by the brother-in-law:
"I asked him how my dad was hurt and he said he fell off a scaffold. I said, `Well, what kind of work was he doing?' He said, `I met him there at the Dr. Pepper Building that morning and told him to go to his regular job taking out the paper and garbage and then when he got that done to come back there to work.'
"Q. Was there anything else? A. Yes. I asked him if he was carrying any compensation insurance and he said no, he didn't, and my brother-in-law asked him what he intended to do about it then and he would just let it ride for a few days to see how things turned out."
Defendant admitted having talked to the son and his brother-in-law but denied their version of the conversation. There are also denials of some other testimony above referred to. We need not consider them since conflicts in the evidence were, of course, for the jury to resolve.
From the testimony the conclusion is warranted defendant directed Casey to take out the paper and garbage at the Harlan and Hanwood and then return to the Dr. Pepper Building to work and that Casey did as directed, insofar as such duties had not already been performed. The nature of the work of Casey had been doing lends probability to this conclusion. While it is not shown by direct evidence precisely what Casey was doing on the scaffold at the time he fell it is reasonably probable he had gone there either to work or to receive directions from defendant or Harlan C. Hansen, the foreman, as to what he should next do. It is scarcely probable he had gone upon the scaffold for his own benefit or enjoyment nor for any other purpose than to benefit his employer. Harlan C. Hansen testified: *Page 68
"You couldn't tell from the floor whether all the loose plaster had been knocked down. You would have to get on the scaffold to determine that."
In Bushing v. Iowa Ry. L. Co., 208 Iowa 1010, 1013, 226 N.W. 719, 721, an award was affirmed, even though we said:
"In what manner Bushing got into the position in which he was found, and what he was doing at such place, is not shown * * * There was no testimony * * * Bushing had ever been on the balcony before * * *."
Casey was injured during the period of his employment and, the jury could find, at a place where he might reasonably be in performing the duties of his employment or doing somethingreasonably incident thereto. Of course, an injury may arise in the course of employment although the servant is not actually working at the time of injury. Bushing v. Iowa Ry. L. Co., supra, 208 Iowa 1010, 226 N.W. 719; Griffith v. Cole Bros.,183 Iowa 415, 424, 425, 165 N.W. 577, L.R.A. 1918F, 923; 71 C.J. 664, section 406; id. 737, section 455. An employee does not cease to be in the course of his employment merely because he is not engaged in doing some specifically prescribed task if, in the course of his employment, he does some act which he deems necessary for the benefit or interest of his employer. Bushing case, supra; Yates v. Humphrey, 218 Iowa 792, 797, 255 N.W. 639.
We also think there is substantial evidence of causal connection between Casey's employment and the injury from which he died. It is legitimate conclusion his injury resulted from a risk reasonably incident to his employment and not from a danger to which he would have been equally exposed if he had not been so employed. Hence the jury could find his injury arose out of the employment.
Defendant contends there was no injury arising out of and in the course of employment because Dr. Shaw testified he was present at an autopsy the day following death and:
"There was evidence of a very extensive cerebral hemorrhage. *Page 69
* * * My best judgment is the man feel because he had a spontaneous cerebral hemorrhage. * * * Not infrequently with a rupture of the larger blood vessels of the brain, the patient immediately falls."
Two other doctors — one performed the autopsy, the other examined the brain as a pathologist — do not corroborate Dr. Shaw. In their opinion death was caused by an injury to the brain due to trauma or a blow. The pathologist's opinion was based in part upon his finding "such a degree of laceration and bruising of the brain." Even without the testimony of these other doctors we would be slow to hold the opinion of Dr. Shaw, under the circumstances here, must be accepted as a verity. Assuming decedent had a cerebral hemorrhage, Dr. Shaw does not explain and it is not readily understandable how it can be concluded with certainty the hemorrhage was the cause and not a result of the fall.
Decisions which tend to support our conclusion the first ground of the motion to direct was erroneously sustained are Linderman v. Cownie Furs, 234 Iowa 708, 13 N.W.2d 677; Danico v. Davenport Chamber of Commerce, 232 Iowa 318, 5 N.W.2d 619; Yates v. Humphrey, supra, 218 Iowa 792, 255 N.W. 639; Bushing v. Iowa Ry. L. Co., supra, 208 Iowa 1010, 226 N.W. 719. In each case we sustained a finding there was an injury arising out of and in the course of employment.
[3] II. Nor do we think as a matter of law there was no negligence on defendant's part which was the proximate cause of Casey's injury. Since defendant chose not to insure his liability or to be relieved from so doing pursuant to the compensation act, he subjected himself to the statutory presumption that an injury to an employee arising out of and in the course of employment was caused by the employer's negligence and "the burden of proof shall rest upon the employer to rebut the presumption * * *." Code section 85.19. (Defendant also deprived himself of certain common-law defenses. Code section 85.15. However, this question is not involved here.)
We may assume the record in a given case may be such the statutory presumption is conclusively — as a matter of law — rebutted. Here, however, we think that was a question of fact for *Page 70
the jury and not one of law for the court. It is seldom a party who has the burden of proof on such an issue establishes it as a matter of law. Frideres v. Lowden, 235 Iowa 640, 642,17 N.W.2d 396, 397, and cases cited; Low v. Ford Hopkins Co., 231 Iowa 251, 254, 1 N.W.2d 95. See, also, Meyer v. Postal Telegraph-Cable Co., 196 Iowa 165, 170, 194 N.W. 273; Mitchell v. Phillips Mining Co., supra, 181 Iowa 600, 606, 165 N.W. 108.
It is not claimed Casey had anything to do with building the scaffold. It was defendant's duty to furnish decedent a scaffold that was reasonably safe. Storey v. J.C. Mardis Co., 186 Iowa 809, 812, 813, 173 N.W. 115, and cases cited. Defendant undertook to prove and there is evidence that the scaffold from which decedent fell, with its floor of loose boards, was reasonably safe. Of course, a finding to that effect would be proper but it is not the only reasonable conclusion to be reached from the evidence.
Peterson, who built the scaffold, admitted "they would be safer if they [floor boards] were fastened; there wouldn't be as much chance of sliding around. The reason I said on direct examination it would not be practical to nail the planks down was because it costs additional work when you have to move the scaffolds. * * * Some contractors use platforms where the planks are nailed and fit them with castors to eliminate the impracticality of sliding them." Defendant's expert, Hartupee, also admitted it would be safer to have the boards on the platform nailed than to have them loose.
While testimony to the effect scaffolds with loose floor boards were customarily used is properly to be considered, it is not conclusive on the issue of negligence. Wood v. Tri-States Theater Corp., 237 Iowa 799, 807, 23 N.W.2d 843, 847, and authorities cited; LaSell v. Tri-States Theatre Corp., 233 Iowa 929, 946,11 N.W.2d 36, 44, and citations, especially two master-and-servant cases — Korab v. Chicago, R.I. P. Ry. Co., 165 Iowa 1, 11, 12, 146 N.W. 765, Ann. Cas. 1916E, 637; Kirby v. Chicago, R.I. P. Ry. Co., 150 Iowa 587, 129 N.W. 963.
We are unable to agree with defendant's contention that it appears conclusively any negligence on his part was not the proximate cause of decedent's injury. On the issue of proximate *Page 71
cause plaintiff is also entitled to the benefit of the statutory presumption (section 85.19) and the burden rested on defendant to show that no negligence on his part proximately caused the injury. Meyer v. Postal Telegraph-Cable Co., supra, 196 Iowa 165, 170, 194 N.W. 273, and authorities cited.
On the matter of proximate cause it is argued the scaffold was in the same condition after Casey's fall as before — there was nothing broken or loose about it. While there is evidence to this effect, the showing is by no means so conclusive as to make the issue of proximate cause one of law for the court.
Harlan C. Hansen testified:
"I think the scaffold was in the same condition afterwards as before." Peterson said: "* * * the staging was standing up like it always did and I don't know of anything wrong with it." Trent testified: "Right then I noticed nothing wrong with the scaffold. I didn't see any steps broken. The scaffold seemed to be in the same condition as it was before. Of course I didn't examine the scaffold. I didn't have it in mind." He also said: "I heard a noise like something heavy falling, a crash like somebody falling or some boards. * * * I don't remember whether there were any boards down from the scaffold. The planks were laid loose on top of the scaffold and you could slide them easily."
Hansen (defendant's brother), Peterson, and Trent either were or had been defendant's employees and were called as his witnesses. Estelle, another employee, was in the room when Casey fell but did not testify. Of course Casey's lips were sealed by death.
In support of our conclusion the issues of negligence and proximate cause should have been submitted to the jury, see Mitchell v. Phillips Mining Co., supra, 181 Iowa 600, 165 N.W. 108; Mitchell v. Des Moines Coal Co., 182 Iowa 1076, 165 N.W. 113; Storey v. J.C. Mardis Co., supra, 186 Iowa 809, 173 N.W. 115; annotation, 72 A.L.R. 94, 95, et seq.
[4] III. Defendant argues the statutory presumption of negligence and proximate cause "is but a temporary inference that vanishes upon the introduction of opposing testimony" *Page 72
and is of no aid to plaintiff because there is evidence of freedom from negligence. As defendant concedes, we have uniformly and repeatedly rejected the construction of the statute for which he contends. After thorough consideration, we have held in analogous cases that proof of an injury arising out of and in the course of employment is presumptive evidence the injury was caused by the employer's negligence and the burden is upon him to overcome the presumption, not by the mere introduction of some testimony but by a preponderance of the evidence — "that is, to negative every fact which would justify a finding of negligence."
To adopt defendant's contention would require us to overrule these decisions and some others which at least by inference hold to the same effect, not to mention numerous other cases involving other presumptions: Mitchell v. Phillips Mining Co. and Mitchell v. Des Moines Coal Co., both cited last above; Mitchell v. Swanwood Coal Co., supra, 182 Iowa 1001, 1005, 166 N.W. 391; Gay v. Hocking Coal Co., supra, 184 Iowa 949, 960, 961, 169 N.W. 360; Butkovitch v. Centerville Block Coal Co., 188 Iowa 1176, 1191, 177 N.W. 479; Mitchell v. Mystic Coal Co., 189 Iowa 1018, 1025, 179 N.W. 428; Martin v. Chase, 194 Iowa 407, 414, 189 N.W. 958; Meyer v. Postal Telegraph-Cable Co., supra, 196 Iowa 165, 170, 194 N.W. 273. We are unwilling to repudiate the rule so firmly established by these decisions. Considerations by which the rule was arrived at are fully discussed in the cited cases.
In a recent compensation case involving the effect of the presumption against suicide we rejected a contention similar to the one defendant makes here and adhered to our prior decisions on that question. Reddick v. Grand Union Tea Co., 230 Iowa 108, 119, 296 N.W. 800, 805. We have twice reaffirmed such holding. Allison v. Bankers L. Co., 230 Iowa 995, 999, 299 N.W. 889, 891; Brown v. Metropolitan L. Ins. Co., 233 Iowa 5, 10, 11,7 N.W.2d 21, 24.
Still more recently we rejected substantially the same contention defendant advances, as to the effect of the statutory presumption here, in Isaacs v. Eastern Iowa L. P. Co-op.,236 Iowa 402, 405, 19 N.W.2d 208, 209, which involved what is now Code section 489.15, providing for a presumption of *Page 73
negligence in case of injury by a transmission line, "`but this presumption may be rebutted by proof.'" We held such presumption must stand if not overcome by clear and convincing evidence and that the question in that case was one of fact for the jury, not of law for the court.
[5] IV. Finally, on the strength of Western A.R.R. Co., v. Henderson, 279 U.S. 639, 49 S. Ct. 445, 73 L. Ed. 884, defendant contends the presumption of negligence created by section 85.19
as construed by our decisions deprives him of due process, in violation of the Fourteenth Amendment to the Federal Constitution, and that we must overrule such decisions and hold the presumption vanishes upon the introduction of proof of due care, in order to save the constitutionality of the statute. The Henderson case is not applicable to the present controversy. Incidentally, appellant in Isaacs v. Eastern Iowa L. P. Co-op., supra, unsuccessfully urged the Henderson decision upon us.
The Henderson case involves not a compensation law enacted under the police power of a state but a Georgia statute [section 2780, Georgia Civil Code] which provided a railroad shall be liable for any damages to persons or property by the railroad unless it shall make it appear "their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company." The court held the fact of collision between a train and vehicle furnishes no basis for any inference of negligence. There was therefore no rational connection between the proved fact and what was inferred. Further, the Georgia court had held the statutory presumption could be invoked to support conflicting allegations of negligence. The holding of the case is that, as so construed, the presumption was fundamentally arbitrary and unreasonable, in violation of due process. The Henderson decision is explained in Atlantic Coast Line R. Co. v. Ford, 287 U.S. 502, 53 S. Ct. 259, 77 L. Ed. 457, 462 (Sutherland, J.).
The presumption created by section 85.19 is based on the thought that ordinarily a servant does not sustain an injury arising out of and in the course of employment when the master has discharged his legal duty of furnishing a reasonably safe *Page 74
place in which to work and reasonable safe tools and appliances. Mitchell v. Swanwood Coal Co., supra, 182 Iowa 1001, 1005, 1006, 166 N.W. 391. Thus we have held there is a rational connection between the fact of such an injury to a servant, which must be proven, and the fact which is presumed — that the injury was caused by the master's negligence. The presumption therefore is not arbitrary and unreasonable like that involved in the Henderson case.
Section 85.19 provides for the presumption here involved as an inducement to employers not to reject the compensation act. Mitchell v. Phillips Mining Co., supra, 181 Iowa 600, 608, 165 N.W. 108. See, also, In re Opinion of the Justices,309 Mass. 571, 34 N.E.2d 527, 544. If defendant desired to avoid the effect of the presumption he had only to insure his liability or be relieved from so doing pursuant to section 87.11. He apparently chose, in legal effect, to reject the act and subject himself to whatever hardship the statutory presumption imposed.
It is well established that compensation acts such as ours are a proper and legitimate exercise of the state's police power. Their various provisions have uniformly been sustained under due-process clauses. Hunter v. Colfax Consolidated Coal Co.,175 Iowa 245, 285, 287, 154 N.W. 1037, 157 N.W. 145, L.R.A. 1917D, 15, Ann. Cas. 1917E, 803; 16 C.J.S. 1296, 1298, section 634c (1); 71 C.J. 263-266, sections 20, 21; 1 Schneider's Workmen's Compensation, Perm. Ed., 34-37, sections 12, 13.
In Hawkins v. Bleakly, 243 U.S. 210, 214, 37 S. Ct. 255, 257, 61 L. Ed. 678, 683, Ann. Cas. 1917D, 637, it is said of the statutory presumption here involved:
"* * * the establishment of presumptions, and of rules respecting the burden of proof, is clearly within the domain of the state governments, and that a provision of this character, not unreasonable in itself and not conclusive of the rights of the party, does not constitute a denial of due process of law."
A complete answer to this contention of defendant is that provisions of compensation acts more drastic than section 85.19
as construed by us have uniformly been upheld by the Federal Supreme Court and eminent state courts against similar attacks. *Page 75
Our statutory presumption is a rebuttable one. Statutes which provide liability of the master to his servant entirely regardless of the question of fault have frequently been upheld as not in violation of due process.
It has been held time and again that awards of compensation do not violate due process even though the employer was not negligent. 16 C.J.S. 1296, 1298, section 634c (1). It is not a violation of due process that a compensation act permits recovery from an employer of damages as at common law even though he is without fault. Arizona Employers' Liability Cases, 250 U.S. 400, 428, 429, 39 S. Ct. 553, 63 L. Ed. 1058, 1070, 6 A.L.R. 1537, 1549 (Pitney, J.).
In Crowell v. Benson, 285 U.S. 22, 41, 42, 52 S. Ct. 285, 288, 76 L. Ed. 598, 607 (Hughes, C.J.), decided nearly three years after the Henderson case on which defendant relies, a compensation act was held not to violate due process even though employers were made liable "for the payment of amounts which would reasonably approximate the probable damages" to injured employees "irrespective of fault as a cause for the injury." See, also, New York Cent. R. Co. v. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L.R.A. 1917D, 1, Ann. Cas. 1917D, 629; Mountain Timber Co. v. State of Washington, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642; Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 47 S. Ct. 509, 71 L. Ed. 952, 51 A.L.R. 1376. Other decisions are cited in Crowell v. Benson, supra.
A proposed amendment to the Massachusetts compensation act created liability of a noninsuring employer for damages for injury to an employee in the course of employment, without proof of the employer's negligence and entirely deprived the employer
of the defense "That the employee's injury was not a direct result of any negligence on the part of the employer." This provision is plainly more drastic than section 85.19 as construed by us. Yet it was held without dissent, on the authority of the supreme court decisions heretofore cited, not to violate due process. In re Opinion of the Justices, supra, 309 Mass. 571, 596, 34 N.E.2d 527, 543, 545.
As defendant suggests, the federal constitutional question raised by him should be determined in accordance with the *Page 76
applicable decisions of the supreme court. American Asphalt Roof Corp. v. Shankland, 205 Iowa 862, 864, 219 N.W. 28, 60 A.L.R. 986, and cases cited; Elk River Coal Lbr. Co. v. Funk, 222 Iowa 1222, 1232, 271 N.W. 204, 110 A.L.R. 1415. The decisions we have cited and others are contrary to defendant's contention of a denial of due process.
Upon a consideration of all questions presented the judgment is — Reversed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430031/ | The appellant was charged by indictment with a violation of Section 5080 of the Code of 1924. That section, so far as here material, is as follows:
"No person shall: * * * Possess a motor vehicle the serial or engine number of which is defaced, altered, or tampered with."
Section 5081 provides punishment by imprisonment or the imposition of a fine for a violation of the preceding section.
I. By requested instructions, which were refused, and by exceptions to the instructions given to the jury, the question is presented whether knowledge on the part of one in possession of a motor vehicle of the fact that the engine number thereof has been altered, defaced, or tampered with is an essential element of the crime defined by the statute.
It is quite universally recognized at this day that the legislature may forbid the doing of an act and make its commission a crime without regard to the intent or knowledge of the doer. Whether a criminal intent or guilty 1. MOTOR knowledge is an essential element of a statutory VEHICLES: offense is to be determined as a matter of criminal construction from the language of the act, in offenses: connection with its manifest purpose and design. alteration Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57
of engine (54 L. Ed. 930); United States v. Balint, 258 number: U.S. 250 (66 L. Ed. 604); Brown v. State, 7 possession: Penn. (Del.) 159 (74 A. 836, 25 L.R.A. [N.S.] 661); knowledge. Commonwealth v. Mixer, 207 Mass. 141
(93 N.E. 249, 31 L.R.A. [N.S.] 467); People v. West, 106 N.Y. 293
(12 N.E. 610); State v. Hennessy, 114 Wash. 351 (195 P. 211); Knechtv. Kenyon, 179 Wis. 523 (192 N.W. 82); Wess v. South Dakota P. S. Co., 43 S.D. 467 (180 N.W. 510); State v. Lindsey,26 N.M. 526 (194 P. 877); State v. Laundy, 103 Or. 443
(204 P. 958); State v. Sterrett, 35 Idaho 580 (207 P. 1071); State v.Johnson, 115 Mo. 480 (22 S.W. 463); Landen v. United States,
299 Fed. 75. See, also, 16 Corpus Juris 76 and 8 Ruling Case Law 62. *Page 1190
We have repeatedly recognized and applied the primary doctrine.Jamison v. Burton, 43 Iowa 282; State v. Newton, 44 Iowa 45;State v. Probasco, 62 Iowa 400; State v. Thompson, 74 Iowa 119;State v. Carmean, 126 Iowa 291.
With our streets and highways thronged with swiftly moving vehicles, many of which are in the most minute respects the same in construction and appearance, the necessity of providing a certain means of identification of one from the other and of ascertaining certainly their ownership is a matter that concerns not only the protection of the individual owner in the enjoyment of his property, but the rights of the general public as well, in the necessary association of such means of transportation with all the varied activities of our daily life. The state has established an elaborate system for the registering of motor vehicles and the transfer of their ownership. These provisions will be found in Chapter 251 of the Code of 1924. These measures are designed not merely for the protection of the owner whose property has been stolen, by affording a means of identifying it. They afford protection for the public revenues derived from the license fee imposed on such vehicles, are of material aid in the enforcement of laws and ordinances regulating their use, and are for the benefit of the general public in its daily contact with this essentially modern and widespread method of transport. In these latter aspects, at least, the statutes in question are clearly an exercise of the police power. All authorities agree that, in the exercise of that power and in the interest of the public welfare, acts otherwise innocent may be declared to be criminal, and "that he who shall do them, shall do them at his peril, and will not be heard to plead in defense good faith or ignorance." United States v. Balint, supra.
By Section 4898, Code of 1924, it is made unlawful for any person to buy or sell any second-hand motor vehicle without receiving or furnishing a certificate of registration and transfer from the officer whose duty it is to register such vehicles.
Section 5083 is as follows:
"Under a charge of possessing a motor vehicle, the serial or engine number of which is defaced, altered, or tampered with, it shall be a complete defense that the accused at the time of such possession had in his possession a certificate of registration and transfer from the officer whose duty it is to register *Page 1191
or license motor vehicles in the state in which said motor vehicle is registered, showing good and sufficient reason why numbers are defaced, changed, or tampered with, the original serial or engine number, and the ownership of said motor vehicle."
The statute does not, by its terms, make knowledge on the part of the accused that the number on a car in his possession has been altered, defaced, or tampered with an essential element of the offense. When we consider the statute in connection with the provisions for the registration and transfer of motor vehicles, and in the light of its evident purpose, it would seem plain that it was not the intent of the legislature to make knowledge on the part of one in possession of the vehicle that the numbers had been altered or defaced an essential element of guilt, but rather to put upon him the burden of knowing at his peril that such is not the fact, or, in case there has been such an alteration, of procuring the certificate provided for in Section 5083. That section expressly provides that such a certificate shall be a complete defense to the charge of having in his possession a car the numbers of which have been altered, defaced, or tampered with. The purchaser of a second-hand car is thus afforded the fullest opportunity, merely by taking the precaution pointed out in the statute, to protect himself.
What has been said and the authorities cited dispose not only of the claim of appellant with respect to the construction of the statute, but of the further contention that the statute so construed is unconstitutional.
There was no error in the instruction given, or in refusing those asked on this point.
II. Whether the engine number on the car found in the possession of the appellant had been altered, was a question of fact, to which most of the evidence introduced on the trial was directed. In that connection, the court properly admitted testimony tending to identify the car in the appellant's possession, by various peculiarities in its appearance, as one that had, a short time before, been stolen from the owner in Ames, and the engine number of which was different from that appearing on the car in the possession of the appellant. Such testimony tended to support the contention of the State that the engine number, which it was claimed showed evidences of having been tampered with, had been changed. *Page 1192
III. Under the evidence, it was clearly a question for the jury whether the engine number on the car in appellant's possession had been altered.
IV. Complaint is made of the refusal of the court to give an instruction to the effect that any statements 2. CRIMINAL made by the defendant after his arrest which LAW: were induced by statements of the officers that evidence: it would be better for him to talk, or that he confessions would be imprisoned if he did not talk, were not (?) or voluntary, and should not be considered by the contradic- jury. tory statements (?)
The record discloses nothing requiring such an instruction. There was testimony that appellant made certain contradictory statements as to how and of whom he obtained the car in question. They were not confessions of guilt of the crime charged. State v.Novak, 109 Iowa 717; State v. Abrams, 131 Iowa 479. While there was testimony, elicited on cross-examination of a witness, the deputy sheriff, who testified to some of these alleged admissions, from which it might have been found that, on one occasion, at the county attorney's office, after he was arrested, the defendant was told that he would be imprisoned unless he talked, it does not appear that any such admissions were made at that conversation. Nor is there anything in the record from which it could be inferred that such admissions were thereafter made under the influence of what was there said.
It is the well-settled rule in this state with respect to a confession of guilt that, where it appears to have been free and voluntary, the burden is upon the defendant to show coercion or inducement such as to require its exclusion. 3. CRIMINAL State v. Storms, 113 Iowa 385; State v.
LAW: Icenbice, 126 Iowa 16. The prevailing rule is evidence: that confessions are prima facie voluntary. confessions: State v. Storms, supra; Rufer v. State,
burden of 25 Ohio St. 464; Commonwealth v. Culver,
proof. 126 Mass. 464; State v. Laughlin, 171 Ind. 66. See, also, note to Ammons v. State (80 Miss. 592), in 18 L.R.A. (N.S.) 783. In jurisdictions where preliminary proof of the voluntary character of a confession seems to be required, the same rule is not applied to mere admissions relating to collateral facts from which guilt may be inferred. State v. Guie,56 Mont. 485; Wilson v. State, 17 Okla. Crim. 47 (183 P. 613);People v. Jan John, 144 Cal. 284. See, also, 16 Corpus Juris 628. *Page 1193
The alleged admissions in question appear to have been voluntarily made. Nothing was shown to the contrary. There was no error in refusing the requested instruction.
V. The court in one instruction incorporated the substance of Section 5083, and in three others referred to the subject-matter of the section. In one, the failure of a party having in his possession a car with the engine number altered 4. CRIMINAL to have the certificate there provided for, was LAW: trial: said to be an essential element of the offense instruc- charged. In another, the court instructed that, tions: if the jury found that the defendant had in his unpleaded possession the car described in the indictment, defense. and that the engine number thereof had been altered, defaced, or tampered with, the verdict should be for the State, unless it was found by a preponderance of the evidence that the defendant then had such certificate; and in still another, that, if they found beyond a reasonable doubt that defendant was in possession of such car, and that the engine number thereof was altered, defaced, or tampered with, and they further believed that he did not have such certificate, they should find a verdict of guilty.
There was no claim on the part of the appellant that he had the certificate provided for in Section 5083, nor did the State undertake to show that he did not have such certificate. There was no evidence on the subject. The provisions of that section do not create an exception to the crime defined by Section 5080, and the State was not required either to plead or to prove that the defendant did not have the certificate there provided for. Statev. Mahan, 81 Iowa 121; State v. Conable, 81 Iowa 60. The possession of such a certificate by one charged with the offense was purely defensive — made so by the express provisions of the statute.
If the failure of the defendant to have the certificate provided for by Section 5083 was, as the court said, one essential element of the crime, the burden was clearly on the State to show that fact beyond a reasonable doubt. Yet the court, in one subsequent instruction, put the burden of establishing that he did have the certificate on the defendant, and in another, said that, if the jury believed that he did not have it, and found beyond a reasonable doubt that he had possession of a car with the engine number altered, they should convict. The only *Page 1194
inference to be drawn from the latter instruction was that the State was required to show that he did not have the certificate, but only by a preponderance of the evidence. The defendant could not complain that a greater burden was put upon the State than it was required to carry; but, aside from the inconsistent and conflicting rules given for the guidance of the jury, the fatal vice of the instructions lies in the fact that they submitted and required a finding on a question that was not in issue, and upon which there was no evidence. The defense that the defendant had a proper certificate showing a good and sufficient reason why the engine number was altered, was one which, under the law, was available to him, but which he did not present, and on which he did not rely.
We are not to be understood as holding that a reference in the instructions to the provisions of Section 5083, in connection with the statute under which the indictment was found, would necessarily be prejudicial error; but we do hold that it was error to submit to the jury a question which was not in issue, and upon which there was no evidence, and to require a finding upon a possible defense of which the defendant did not seek to avail himself. It was the defendant's right to have the attention of the jury directed only to the questions at issue under the indictment and the evidence; and to require them to find upon a permissible affirmative defense which was not interposed by him, and upon which there was no evidence, was clearly prejudicial.
The question is controlled by the doctrine announced inGranteer v. Thompson, 203 Iowa ___, where it was held that, in an action for malicious prosecution, where the defendant made no claim that the plaintiff was guilty of the offense for which he had been prosecuted, it was error to submit to the jury the question of his guilt thereof.
VI. Criticism of an instruction relating to evidence of the good character of the defendant is directed to the statement therein that good character is a "circumstance which may be shown for the purpose of rebutting the presumption of guilt arising from circumstantial evidence."
The portion of the instruction objected to cannot be approved. Where the good character of a defendant is shown, it is to be considered by the jury and given such weight as the *Page 1195
5. CRIMINAL jury may determine it is entitled to; and this LAW; is true without regard to the character of the evidence: evidence, whether direct or circumstantial. good State v. Northrup, 48 Iowa 583; State v.
character: Horning, 49 Iowa 158; State v. Lindley, 51 effect. Iowa 343; State v. House, 108 Iowa 68; Statev. Schumacher, 195 Iowa 276. Nor is the error cured by the further statement of the instruction that evidence of good character should be given consideration irrespective of whether the other evidence was conclusive or inconclusive, and that its weight was to be determined by the jury under all the facts and circumstances. The latter statement would appear to refer to the effect, rather than to the kind or character, of the evidence, and to leave unqualified the previous direction, limiting, in effect, the consideration of evidence of good character to a case where circumstantial evidence alone was relied upon. But, if this is not true, the two paragraphs of the instruction are contradictory. State v. Schumacher, supra.
Neither can it be said that the evidence relied upon by the State was wholly circumstantial, and that, for that reason, the instruction was not prejudicial.
Other questions presented are either without merit or are not likely to arise on a retrial, and require no consideration.
For the errors pointed out, the judgment is reversed, and the cause remanded. — Reversed and remanded.
EVANS, C.J., and STEVENS and FAVILLE, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4083167/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
755
CA 13-00007
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.
IN THE MATTER OF MANUEL MOSLEY,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
MALCOLM R. CULLY, SUPERINTENDENT, COLLINS
CORRECTIONAL FACILITY AND BRIAN FISCHER,
COMMISSIONER, NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
RESPONDENTS-RESPONDENTS.
MANUEL MOSLEY, PETITIONER-APPELLANT PRO SE.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Penny M. Wolfgang, J.), entered November 7, 2012 in a
CPLR article 78 proceeding. The judgment granted the motion of
respondents to dismiss the petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a tier II disciplinary
hearing, that he violated an inmate rule. Supreme Court properly
granted respondents’ motion to dismiss the petition. The record
establishes that the proceeding was untimely inasmuch as it was
commenced more than four months after the final administrative
determination (see CPLR 217 [1]; Matter of Jackson v Fischer, 78 AD3d
1335, 1335, lv denied 16 NY3d 705). Petitioner contends that the
proceeding was timely insofar as it challenged the denial of his
grievance related to the inmate rule violation, and that the court
therefore erred in failing to rule on the merits of that challenge.
That contention lacks merit. Even assuming, arguendo, that the
proceeding was timely with respect to the denial of petitioner’s
grievance, we conclude that the allegations of the petition “were not
‘sufficiently particular to give the court and parties notice’ ” that
petitioner was also challenging the denial of his grievance, and thus
the court had no reason to consider that purported challenge (Matter
of Abreu v Hogan, 72 AD3d 1143, 1143, appeal dismissed 15 NY3d 836,
-2- 755
CA 13-00007
quoting CPLR 3013).
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 10-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429985/ | Plaintiff's petition, in five counts, seeks to recover the proceeds of five policies of insurance on the life of *Page 595
her father, John H. Turner; the policies had named her mother, Hannah L. Turner (defendant), as beneficiary but the right to change the beneficiary was reserved; thereafter the insured in writing changed the designation of beneficiary to plaintiff; insured died February 20, 1943, with the policies in full force and effect but with loans and interest chargeable thereto. The five counts of the petition were identical in form and content except for variant allegations as to numbers, dates, face amount of policies, and loans thereon. The prayer was for judgment in the aggregate sum of $14,999.16, with interest and costs.
The defendant Equitable Life Assurance Society of the United States filed answer, cross-petition, and interpleader in which it admitted liability for $14,999.16 on the five policies and averred its willingness to pay same into court but prayed that Hannah L. Turner be interpleaded as a claimant to the fund. The company paid $15,291.96 into court and plaintiff amended her petition, praying for judgment for said sum.
Defendant Hannah L. Turner filed answer, admitting the issuance of the policies and the designation of plaintiff as beneficiary therein and asserted: Prior to the issuance of the policies John H. Turner, husband of defendant, in consideration for defendant's joining in the execution of certain mortgages upon lands then owned by him, orally agreed that he would procure and maintain insurance in an amount of not less than $25,000; the insurance was procured pursuant to said agreement; the agreement further provided that defendant should be the beneficiary of said insurance without change or alteration; defendant contributed to and assisted in the payment of the premiums and the proceeds were bound by contract on the consideration stated when Turner purportedly executed an assignment thereof to plaintiff, who is a mere volunteer in the transaction, the proceeds being irrevocably pledged to the benefit of defendant; Turner purported to execute a request for change of beneficiary but was mentally incompetent and the purported request so made was null and void. The prayer was that defendant be awarded the fund paid into court by the insurance company.
Plaintiff's reply, as amended, denied that Turner made an agreement to maintain life-insurance policies payable to *Page 596
defendant, denied that there was any consideration for such an agreement, denied that defendant paid any premiums on the insurance, denied that the proceeds were irrevocably pledged to defendant, denied that Turner was mentally incompetent when he changed the beneficiary of his insurance, and asserted that the mortgage which defendant signed was not signed at the insistence of her husband.
The plaintiff moved to transfer the issues presented by Division III of defendant's answer (relating to the alleged oral contract with the insured) to equity. This motion was sustained. Trial was had in equity on the issues presented by said Division III of the defendant's answer and plaintiff's reply thereto. At the conclusion thereof the court filed an opinion in which, among other things, doubt is expressed that any contract had been established but it is pointed out that the two vital propositions asserted by the answer were that defendant and her husband agreed:
"1st: Insurance in the amount of $25,000, of which Mrs. Turner was to be beneficiary was to be taken out, and 2nd: The beneficiary was not to be changed."
The court determined that there was no testimony on the second proposition by any of the witnesses and that such allegation is entirely without support in the record. The court stated:
"I have found no case, and have been referred to none, in which a claimant of the proceeds of insurance has been permitted to recover upon proof of less than is pleaded as the contract in the case at bar. As I have said before, I think I will let the Supreme Court do the legislating, if the rule is to be extended further than the Court has gone, so far. I find that the pleaded contract has not been established by Mrs. Turner, and as a legal conclusion I determine that Division III of her answer must be dismissed, at her costs."
Apparently the written opinion of the court was treated as its findings of fact and conclusions of law. Pursuant thereto, on October 21, 1944, it entered a decree which provided:
"Now on this 21st day of October, 1944, this same matter *Page 597
comes on before the Court for entry of an order in conformity with said opinion, and it is hereby ordered that Division III of the answer of the interplead defendant Hannah Lucinda Turner, be and it is hereby dismissed."
On November 18, 1944, defendant appealed from said decree. On December 13, 1944, the court entered judgment awarding the fund paid into court as aforesaid to plaintiff. In ruling upon plaintiff's motion to dismiss this appeal, we held, in Stolar v. Turner, 236 Iowa 628, 644, 645, 646, 19 N.W.2d 585, 592, 593, that the decree appealed from was a final order within the contemplation of Rule 331 (a) of the Rules of Civil Procedure and the motion to dismiss was overruled.
[1] I. In seeking a reversal of this case at our hands defendant asserts three propositions: (1) She has established that John H. Turner agreed to secure $25,000 of life insurance on his life payable to her for her protection in consideration for her joining in the execution of notes and mortgages as pleaded. (2) It was an essential term of the contract expressed or implied that John H. Turner would not change the beneficiary. (3) She performed the consideration for John H. Turner's promise to her and thereafter he was precluded upon equitable considerations from undertaking to change the beneficiary in the policies irrespective of any specific promise not to change the beneficiary. In seeking an affirmance at our hands, plaintiff asserts four propositions: (1) There is no evidence to establish the essential term of the contract pleaded that John H. Turner could not change the beneficiary. (2) The making of the contract pleaded is not established by the evidence. (3) A sufficient consideration for the contract pleaded is not shown by the evidence. (4) The evidence fails to show that the insurance was procured pursuant to any contract. To decide such propositions it is necessary to carefully examine the evidence. It is quite voluminous, comprising nearly one hundred pages of the record. Obviously, we can do no more than refer to the essential facts which are controlling.
John H. and Hannah L. Turner were married October 23, 1901. He was then twenty-six and she was twenty-one. In 1902, John H. Turner, Jr., was born. In 1905, William Joseph Turner was born but he died in 1926, while a sophomore in *Page 598
college. In 1908 Jennie Turner (Stolar), plaintiff herein, was born. In 1913 a fourth child was lost at birth. The family lived on a one-hundred-sixty-acre farm, three miles east of DeWitt, Iowa, which John H. Turner had inherited from his mother.
In 1901 Turner owed approximately $3,000. By the early part of 1918 his indebtedness had increased to about $20,000. At that time he bought another eighty-acre farm and borrowed $18,000 as the purchase price, making his total indebtedness about $38,000. Apparently, $30,000 of this indebtedness was secured by mortgages on the one-hundred-sixty- and eighty-acre tracts and the additional $8,000 was other indebtedness. A.M. Price, a witness for defendant, made the loans to Turner in 1918. The oral contract asserted by defendant herein is claimed to have been made during the negotiation of the loan of $18,000 for the purchase of the eighty acres.
Mrs. Turner testified concerning the alleged oral contract as follows:
"Mr. Turner wanted to buy that 80 and wanted to know what I thought about it. * * * I told him I could not see it. I said we were in debt $10,000 and that would mean more worry and more work, a bigger debt. I told him I did not see any use of having any more land and I said, if anything happened to him before it did me I probably would lose my home and everything I had. * * * When I told Mr. Turner I objected to buying the 80 we talked it [over] quite a bit. He came to me and said he wanted it and little Bill, our boy that is dead now, he must have been twelve or thirteen I should judge, and he wanted it awfully bad; he said he had a suggestion, if he bought life insurance to protect me — The price of the land was $235.00 an acre. He said if he would take out life insurance to protect me and wondered if it would be all right; of course, I didn't want to be too mean; I wasn't very anxious about buying it; then he said he would take out life insurance and protect me. We had that agreement. I told him we better go up and talk to Mr. Price and we did; we went up several times. At that time he had no money whatsoever to pay for the land. We had to borrow the whole purchase price. * * * *Page 599
We talked it over with Mr. Price. Mr. Price knew I objected to buying the 80. I told him I did not want to buy it. I told him it would put us too much in debt and I didn't like the debt. * * * Q. In any event, in spite of your objections you finally did sign whatever papers were required to make a loan to buy it, didn't you? A. Yes. * * * Q. In the words that he used, just how he expressed himself, as near as you can, either exactly or in substance of what he said; not that he agreed, but what did he tell you? A. He said he would take out insurance to protect me. Mr. Turner asked me if I would agree to buy the 80 [if] he would buy insurance to protect me. He always talked about $25,000. That would cover the indebtedness. We were borrowing an additional $18,000 to buy the 80. It seems to me he borrowed a little more. I am not sure about that. There were two mortgages for $30,000. * * * After he bought the 80 I signed the mortgages and the notes."
Mr. Price testified for defendant as follows:
"Q. What was said at that conversation in the presence of Mr. Turner, Mrs. Turner and yourself in regard to the purchase of this property; if anything was said, * * * A. She was opposed to it on the ground — that is, opposed to the purchase of the 80 on the ground that it would put them too much in debt. * * * She said she did not want to purchase the 80 acres because it would involve them too much more in debt and there was plenty of debt then. Mr. Turner said he would take out a policy of $25,000 of life insurance payable to her in the event of his death to relieve her of so much indebtedness. She said she would agree to the purchase under those conditions. * * * He was still insisting upon the purchase of the 80 acres and finally she agreed to the purchase. Said she would provided he would take out that $25,000 life insurance policy in her favor. He said he would. * * * I took a mortgage for the North 160. I loaned him $18,000 to buy the 80. In the early part of 1918. * * * Q. Then in the early part of the year 1918 you took mortgages for a total of $38,000.00, and that increased the mortgage on the 160 by $10,000.00, didn't it? A. It would."
Turner had difficulty securing insurance because of family *Page 600
history of tuberculosis. In 1913 or 1914 he was rejected on that ground. Plaintiff testified:
"It was always a known fact in the family that Dad couldn't get life insurance. He had been rejected before 1920."
Mrs. Turner testified:
"Mr. Turner's health was very good. He tried to get insurance through Mr. Mathews and John Carlsen. Mr. Carlsen wrote up the boys and Mr. Turner thought by taking the boys and taking him, he could get in that way. He was rejected. It was not his health. It was the family history T-B. I think the statement that if he attained the age of fifty-five and was in good health he could get insurance was from Mr. Van Epps. * * * After 1920 every time I had to renew a mortgage or sign a note, he made the remark to me he didn't get his insurance, but he was not going to give up. He knew he would be able to get it later on and would still live up to his agreement with me."
In 1921 Turner applied for a policy of life insurance for $5,000, with Mrs. Turner as beneficiary, through J.J. Mathews, agent for the New York Life Insurance Company. The company rejected it because of the family history of tuberculosis. No further attempt was made with Mathews.
On January 15, 1929, four of the five policies of life insurance involved herein were issued, for the sums of $5,000, $5,000, $5,000, and $3,000, with Mrs. Turner named as beneficiary. On February 11, 1929, the fifth policy was issued for $7,000, with the First National Bank of DeWitt named as beneficiary. All five policies were issued, "with the right to the Insured to change the beneficiary or assign this policy." The First National Bank did not then hold any of the mortgages on the farms but Turner owed other debts to it. Ray McDevitt, who did not testify for either side, was the agent that represented the insurance company.
Plaintiff testified concerning the transaction as follows:
"I remember Ray McDevitt being out to solicit Father for insurance during Christmas vacation, the latter part of 1928 and first part of January 1929. I heard a conversation *Page 601
between my father and Mr. McDevitt. My mother was present. She took part in it. I believe my father applied for $10,000. My mother was always opposed to spending, incurring extra debts. Q. What did she say, if anything, at this time about your father's ability to carry those premiums? A. Well, on the full twenty-five that he finally took, she objected strenuously. Ray McDevitt made several trips out there and each time he came she bawled him out for coming and told him he was a pest and had a lot of nerve thinking Dad would carry that much life insurance. Dad applied for the $10,000 and when Ray ordered the insurance he ordered an additional $15,000 and Dad wasn't even sure he could pass the physical; he told Ray he didn't think he could get insurance at all because of his family t-b history and his heart condition and when Ray brought the $15,000 Dad didn't want it and somehow they argued back and forth and discussed it and Ray said part of it could be made payable to the bank because Dad was heavily indebted to them. Ray gave 50% of his first premium that would be his commission to induce my father to take it. Ray said he would pay that, if my father would take the whole thing. * * * Q. And do you know what kind of insurance he applied for in the five-thousand dollar policies? A. Well, he was interested in the double indemnity and the disability clauses; that was Ray's selling point. * * * Ever since Ray McDevitt paid the death benefit on Bill's policy, he was after Dad to let him write him a policy of insurance; that was way back in 1926; Dad held him off until 1929; then Dad finally said if you can get $10,000 and I can pass a physical, I will take it; then this additional came up when Ray found Dad was interested. * * * My mother was around. She objected to the extra insurance. Said he would never be able to pay the premiums."
Defendant testified in rebuttal as follows:
"I did not object to my husband taking the insurance. I might have remarked it was quite a little bit of money to keep up, but I didn't object. * * * Q. What was your wish and desire as to your husband procuring the $25,000? * * * A. Well, we were in debt on the farm so heavily we thought if we would *Page 602
lose the farm we would have the life insurance to fall back on. * * * Q. And what, if anything, did he say about the insurance when he had gotten it? A. Well, he was very well pleased and he says, `I have certainly carried out my agreement with you when we bought the 80.'"
Ralph Waterbury, as a witness for defendant, testified as follows:
"I remember two times in particular when I talked to John H. Turner about insurance. Once was after he had obtained $25,000.00 of insurance and he talked to me about it and asked what I thought about it, and I told him I thought it was too much and that the premium was too heavy for his income, and I asked him what the idea was carrying so much and he said it was to take care of his indebtedness or it was on account of his indebtedness. That was fairly close to the time when he had gotten the insurance. He stated he was very heavily involved and he elaborated that to the extent that there was a heavy mortgage on the farm, and also a chattel mortgage. He stated it was payable to his wife, Hannah."
The applications were for term insurance but the company declined to issue such insurance and all five policies were ordinary life policies. They provided for waiver of premiums and disability benefits in the event of total disability. In 1932 Turner was injured, lost an arm, became totally disabled. He and his wife moved off the farm and rented it to their son, John, Jr. The insurance company thereafter waived the premiums on the insurance and paid him disability benefits at the rate of $250 per month.
In 1931 Turner signed a letter to the First National Bank, which defendant witnessed, agreeing not to change the beneficiary in the $7,000 policy as long as the indebtedness to the bank was unpaid and designating that any balance be paid defendant. In 1932 the Farmers Citizens Savings Bank was made beneficiary of one of the $5,000 policies. In 1935 defendant was made beneficiary of the $7,000 policy instead of the First National Bank and in 1939 she was made beneficiary of the $5,000 policy instead of the Farmers Citizens Savings Bank. *Page 603
Defendant and her husband separated in July 1941. She described their separation thus:
"Mr. Turner left me the latter part of July 1941. I stayed there six weeks and three days. He did not come back so I just went over to my son and stayed there on the 160. Our difficulty arose over our son John concerning the question of his being refused the privilege of renting the farm. I wished him, John, to continue there and my husband refused to permit it. This finally culminated in a suit for separate maintenance in which I was unsuccessful. John left the farm in 1942 and I went with him. I lived with him on a farm up in Delaware County. My husband died about a year after that."
Defendant's action for separate maintenance was commenced September 18, 1941. During its pendency, on October 4, 1941, the five policies were made payable to insured's daughter, plaintiff herein, as beneficiary. As stated by defendant, the action for separate maintenance was tried and resulted in a decree of dismissal. Defendant and her husband did not live together again after their separation in 1941. On January 23, 1942, Turner executed a will that devised to defendant, if living and not divorced, $500; to John Turner, Jr., $500; to William Joseph Turner, a grandson, $4,000; to Shirley Ann Turner, a granddaughter, $1,000; to Janice May Turner, a granddaughter, $1,000; and the residue to Jennie Stolar (plaintiff herein) and William Joseph Turner, share and share alike. The latter two were nominated as executrix and executor of the estate. The property of the estate, both real and personal, was ordered sold to pay the legacies. Defendant, as widow, elected not to take under the will. She received a widow's allowance of $1,200 and her distributive share was estimated to be approximately $10,000.
Certain letters written by defendant to the insurance company were introduced in evidence by her. On March 10, 1943, she wrote the company as follows:
"This is to inform you that my husband who had these Policies with your company died on February 20, 1943, at the Jane Lamb hospital Clinton, Iowa. As I was the beneficiary *Page 604
named on these policies, I would appreciate it if you would send me the proper papers so that this claim may be taken care of at once. I realize that we had some loans on these Policies as have papers showing the amount of loans. If there are any irregularities on the Policies as to beneficiary I will say that my husband has been both mentally and physically deranged the last 18 months. May I hear from you by return mail."
On March 25, 1943, she wrote the company as follows:
"Ever since the policies were taken out I was the beneficiary of the above numbered policies with the exception of the First National Bank Farmers Citizens Bank of DeWitt, Iowa. After we got them paid off the insured designated me as beneficiary. My husband and I always had the mutual understanding that if he went before I did I was to pay off the mortgage on the farm with the life insurance claim. Since July of 1941 my husband has changed mentally. I am sorry this had to happen. At different times some of the neighbors wanted to get a petition out and have him examined and a guardian placed over him. I always asked them to let it go for a while in hopes that things would be better. I do not want to hire a lawyer if I can help it. Therefore I wish you folks would tell me what procedure you want me to follow in order that I may have the insurance money placed on the farm mortgage. If there is a hereafter I hope there is and I believe there is, and I think and hope my husband is up there with the Angels and if he could be on this earth for just a minute in his normal mind he would say, `Put the insurance money on the farm debt.'"
Although in both of the letters, last quoted above, defendant asserted that her husband was mentally incompetent when he undertook to change the designation of the beneficiary to plaintiff, and a similar allegation was asserted in Division IV of the answer as above stated, no evidence was offered to establish such claim and no contention to that effect is presented to us. In the answer, defendant also asserted that she had paid some of the premiums on the policies but no evidence to sustain that allegation was introduced and no claim is made here that any premiums were paid by her. *Page 605
[2] II. The rule is well established that, where the insured reserved the right to change the beneficiary, the beneficiary does not have a vested interest in the insurance. In the case of Potter v. Northwestern Mut. L. Ins. Co., 216 Iowa 799, 804,247 N.W. 669, 671, after an extensive review of the authorities, we stated:
"Under the foregoing rule, which seems to be well established, where the right to change the beneficiary has been reserved in the policy, the beneficiary does not have a vested right or interest, and the insured has complete control and domination of the policy; that his reserved right to change the beneficiary includes the lesser right to affect the rights of the beneficiary by exercising or creating a lien on the policy; and thus he may do directly what he might do by changing the beneficiary to himself or his estate."
[3] We have held that, where the beneficiary is named pursuant to a contract for a valuable consideration, the circumstances may be such that the beneficiary may acquire a vested interest in the insurance so that the insured will be without power to change the designation of beneficiary. Cases so holding include: Jacobson v. New York L. Ins. Co., 199 Iowa 770, 202 N.W. 578; Beed v. Beed,207 Iowa 954, 222 N.W. 442; Aetna L. Ins. Co. v. Morlan, 221 Iowa 110,264 N.W. 58; In re Estate of Paul, 231 Iowa 1078,3 N.W.2d 186. Cases in which such a contract was claimed to have been made but this court determined that the beneficiary had not met the burden of proof include: Herriman v. McKee, 49 Iowa 185; In re Estate of Donaldson, 126 Iowa 174, 101 N.W. 870; Bennett v. Union Central L. Ins. Co., 220 Iowa 927, 263 N.W. 25; In re Estate of Hazeldine, 225 Iowa 369, 280 N.W. 568; Shepherd v. Pacific Mut. L. Ins. Co., 230 Iowa 1304, 300 N.W. 556. In the case of Sovereign Camp W.O.W. v. Russell, 214 Iowa 39, 241 N.W. 395, such a contract was held to be unenforceable because of a special statute relative to fraternal societies.
[4] In this case defendant pleads and relies upon an oral contract and the cause was tried in equity. In the above cases, where an oral contract was relied upon and the case was tried in equity, we have repeatedly held that the oral contract must *Page 606
be established by clear, satisfactory, and convincing proof. The rule is analogous to that generally followed in cases where one relies upon an oral contract in reference to the disposition of the property of one deceased. Many of the cases announcing that general rule are collected by Judge Bliss in the case of Williams v. Harrison, 228 Iowa 715, 723, 293 N.W. 41. Defendant does not challenge this rule but asserts that her contract has been established "by clear and convincing evidence." Plaintiff, of course, claims that the evidence thereof is not clear, satisfactory, or convincing.
III. As has been heretofore noted, the trial court determined that the essential part of defendant's alleged contract, which provided that the beneficiary should not be changed, was without support in the evidence. Counsel for defendant tacitly concedes that there is no evidence that the insured expressly stated, as a part of the oral contract, that the beneficiary would not be changed. Counsel contends that that was not necessary because (1) an essential term of the contract, express or implied, was that Turner would not change the beneficiary, or (2) Turner was precluded upon equitable considerations from undertaking to change the beneficiary, irrespective of any specific promise not to do so. Counsel for plaintiff contend that these propositions were not pleaded, were not raised below, and cannot be raised for the first time on appeal to this court.
[5] Of course, it is well established that, though an equity case is tried de novo in this court, the appellant cannot try it here on a new theory that was not advanced in the trial court. New Amsterdam Cas. Co. v. Bookhart, 212 Iowa 994, 1001,235 N.W. 74, 76 A.L.R. 897. Obviously, we can consider only those issues that were raised by the pleadings below. Defendant's answer asserted:
"* * * in consideration of her executing and joining in the execution of various mortgages upon the lands then owned by John H. Turner, [he] orally agreed that he would procure and maintain until his death insurance in an amount not less than $25,000.00. That the insurance herein, the subject matter of this action, was the insurance procured pursuant to said *Page 607
agreement. That said agreement further provided that this defendant should be and remain without change or alteration the beneficiary thereof."
These allegations asserted an express contract not to change the beneficiary.
[6] Since it is conceded that express words to that effect have not been proved, the only issue properly before us is whether such a provision was implicit from the conversations of the parties upon which the oral contract is predicated. We agree with the trial court that, to sustain defendant's contention thereon, it would be necessary to go further than any of our decisions to date has gone on this question.
In the case of Jacobson v. New York L. Ins. Co., supra, it is pointed out, at page 771 of 199 Iowa, page 579 of 202 N.W., that the insured said, "This is for your protection. You keep up the premiums on it, and I will never change it." This was an express promise not to change the beneficiary and the beneficiary was to pay the premiums. We have no evidence of such an express promise herein. In the other three cases that have denied the right of the insured to change the beneficiary, there was no such clear-cut promise not to change the beneficiary as in the Jacobson case, supra. If, as defendant contends, such a promise was implicit in the transaction, the facts in those cases were brought into much clearer focus than are those now before us.
In the case of Bennett v. Union Cent. L. Ins. Co., supra, at page 932 of 220 Iowa, page 27 of 263 N.W., we quoted from the Beed case, supra, the statement of the rule applied by it, as follows:
"`But there is an exception to this general rule where, as in the instant case, the policy is taken out for and in behalf of a beneficiary for a specific purpose, either under an agreement between the parties that the beneficiary shall not be changed, or under such circumstances as to render it inequitable to permit such change to be made.'"
The opinion in the Bennett case then states: *Page 608
"While this statement of the exception seems to recognize that it may exist, either under an agreement between the parties that the beneficiary shall not be changed, or under such circumstances as render it inequitable to permit such change to be made, it seems to confine the exception to cases where the insurance is taken out for and in behalf of the beneficiary for a specific purpose."
In that case the proceeds had been paid by the insurance company to the later-designated beneficiary. It was not a contest between two claimants to the fund paid into court as was done herein. Recovery was sought against the company, to require it to pay the proceeds a second time, and was denied because the company had no knowledge of the alleged contract. We think that the statement is accurate that, in the absence of a specific promise not to change the beneficiary, such a promise is implied but only to accomplish the specific purpose the insured had in mind. At least, in the cases heretofore decided by us, such has been the purpose of the rule that we have developed.
In the Beed case, supra, the specific purpose that the rule permitted to be accomplished was to afford the insured's brother security against loss by reason of his becoming surety for the insured on a new note for $5,000. The policy of insurance was issued simultaneously with the agreement and was delivered to the bank as security for the brother's liability as surety on the note. In the Morlan case, supra, Mrs. Dutton was named beneficiary in the policy simultaneously with the making of the agreement, and the specific purpose was to afford her security for $4,750 previously advanced, $500 advanced at the time of the change of beneficiary, $1,000 subsequently loaned, and the agreement made at that time to furnish support in the future to the parents of insured. In the Paul case, supra, the beneficiary was changed to insured's estate and all parties had the view that, by so doing, the proceeds of the insurance would be available to pay insured's debts; such would be the law only by reason of a binding agreement; relying on an oral contract, a doctor and a funeral director agreed to and did furnish services and the landlord furnished support to the insured and the policy was delivered to the banker under the belief that he *Page 609
became trustee of it for the benefit of such creditors of the insured. In each case there was a specific purpose to be accomplished, the evidence thereof was clear, satisfactory, and convincing, and the decision of this court, in each instance, had the effect of accomplishing that specific and well-defined purpose.
But we have no such situation here. The consideration asserted for the oral contract was the defendant's reluctant joining in the execution of notes and mortgages to secure a loan of $18,000 to buy an eighty-acre farm. If defendant had pleaded that the specific purpose of the oral contract was to protect her from loss by reason of the $18,000 loan, the situation would be somewhat analogous to the Beed, Morlan, and Paul cases. Some of the testimony would imply that such may have been the purpose. Mrs. Turner's letter to the company on March 25, 1943, stated:
"My husband and I always had the mutual understanding that if he went before I did I was to pay off the mortgage on the farm with the life insurance * * * I wish you folks would tell me what procedure you want me to follow in order that I may have the insurance money placed on the farm mortgage."
Ralph Waterbury testified that Turner told him that he carried the insurance on account of his indebtedness. Mr. Price testified that, "Mr. Turner said he would take out a policy of $25,000 of life insurance payable to her in the event of his death to relieve her of so much indebtedness." Mrs. Turner testified, "He always talked about $25,000. That would cover the indebtedness." But the specific purpose that defendant here pleads and seeks to accomplish is not to have the insurance proceeds used to pay the indebtedness but to have them paid to her to be used by her for her own purposes. She is not so interested now in paying the mortgages on the farms, which, at the time of the decedent's death had been reduced from $30,000 to approximately $15,000, because the farms were not left to her and her distributive share is only one third of the estate. She would benefit by such action only to the extent of one third of the proceeds. By her answer she demands all *Page 610
the proceeds of the insurance for her own purposes. In the cases heretofore decided by us, the purpose of the litigation was to have the proceeds of the insurance applied upon specific indebtedness. We adopted a rule of law that would accomplish such specific purpose in each case. That rule of law does not fit the case here pleaded because the specific purpose of the litigation is not analogous.
The trial court was impressed with the fact that the oral conversations did not clearly show the terms of any contract. In its written opinion the court stated:
"It is undoubtedly true that, notwithstanding the numerous abortive agreements, a contractual agreement in relation to the procurement of insurance and the execution of the necessary documents could have been made, but the fact that five or six agreements were entered into in relation to the matter indicates rather strongly, if not conclusively, that the discussions were argumentative rather than contractual."
There are other factors that were conspicuous in our decided cases which do not stand forth with any such clarity in the record herein. In each of our former cases the insurance was taken out or the designation of beneficiary changed simultaneously with the making of the oral agreement and it was unmistakable that the specific insurance involved was identified with the oral contract. We have no such record here. This insurance was not taken out until eleven years after the oral contract is claimed to have been made. In 1918, when insured bought the eighty acres, he was uninsurable. He had been rejected in 1913 or 1914. That fact was well known. When he applied for insurance in 1920 or 1921, he was again rejected. And he applied for $5,000, not $25,000, of insurance. When he applied for insurance in 1929 it was for $10,000, not $25,000. The agent induced him to take $25,000 by waiving his original commission. Plaintiff testifies that her father was mostly interested in disability benefits. As matters turned out, the insurance was primarily for his own benefit. By paying but three years' premiums, he received disability benefits of approximately $30,000 and loans on the insurance of such sums as, with interest, approximated $10,000. The retention of the right to *Page 611
change the beneficiary was important to the insured in that it permitted him to freely borrow on it or pledge the insurance as security for numerous loans. See the Potter case, supra, heretofore quoted from.
Counsel for defendant stresses the fact that the parties had in mind $25,000 and the insurance was in the sum of $25,000. But, as an actual fact, defendant at no time was the beneficiary of $25,000 of insurance in a real sense of the word. From 1929 to 1932 she was the beneficiary of policies in the face amount of $18,000 and the First National Bank for $7,000; from 1932 to 1935 defendant was beneficiary of policies of the face amount of $13,000, the First National Bank of $7,000, the Farmers
Citizens Savings Bank of $5,000; from 1935 to 1939 defendant was beneficiary of policies of the face amount of $20,000 and the Farmers Citizens Savings Bank of $5,000. When finally in 1939 defendant became beneficiary of all five policies of the face amount of $25,000, there were substantial loans thereon that reduced the actual insurance considerably below that figure.
Defendant pleaded below and here contends that plaintiff is a mere volunteer. We do not so consider her. Section 8776, Code, 1939, provides as follows:
"A policy of insurance on the life of an individual, in the absence of an agreement or assignment to the contrary, shall inure to the separate use of the husband or wife and children of said individual, independently of his creditors."
Under this statute the spouse and the children are placed in the preferred class. Both plaintiff and defendant were members of the preferred class. The regrettable family quarrel, which appears to have been the basic cause of the present controversy, aligned Turner and plaintiff on one side and defendant and the son, John, Jr., on the other. Turner could determine for himself, in the absence of a binding agreement or assignment, which members of the preferred class of beneficiaries should be the subject of his bounty.
Plaintiff urges upon us as being applicable herein the statement made in In re Estate of Hazeldine, supra, at pages 382 and 383 of 225 Iowa, page 575 of 280 N.W., to wit: *Page 612
"It is our opinion that, considering all the evidence, its meagerness in regard to essential matters and the inconsistencies revealed therein, it is insufficient to establish the oral contract upon which the appellant relies, in that clear, satisfactory and convincing manner that such contracts must be established when claimed to have been made with a person since deceased. In re Estate of Donaldson, 126 Iowa 174, 101 N.W. 870; Herriman v. McKee, 49 Iowa 185; Groh v. Miller, 196 Iowa 1367,195 N.W. 259; Helmers v. Brand, 203 Iowa 587, 213 N.W. 384; Houlette v. Johnson, 205 Iowa 687, 216 N.W. 679; Glissman v. McDonald, 128 Neb. 693, 260 N.W. 182."
Here the defendant alleged that the insured was mentally incompetent to change the designation of beneficiary of his insurance but no proof is offered thereon. She alleged that she paid part of the premiums but there is no proof thereon. She alleged an express promise not to change the beneficiary but produced no evidence of a direct statement thereon and now contends that such a promise was implicit in the transaction. She, of course, had the burden of proof. Without further elaboration, we are of the opinion and hold that the essential provision of the alleged oral contract with the decedent herein that he should be powerless to change the beneficiary in the life-insurance policies has not been established in the clear, satisfactory, and convincing manner that such contracts must be established when claimed to have been made with a person since deceased, and that the trial court's decision to that effect was correct.
The cause is — Affirmed.
All JUSTICES concur.
Beginning with cases filed in JUNE we cite the Code of 1946, even though it was not published until after the cases had been tried below and submitted to this court. *Page 613 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430010/ | Maggie L. Dorsey and Frank B. Dorsey, Sr., were wife and husband. They had two children namely, Margaret Dorsey Hodgson, who is the plaintiff herein, and Frank B. Dorsey, Jr., who is one of the defendants. Maggie L. Dorsey died September 1, 1929 intestate; Frank B. Dorsey, Sr., died September 8, 1937 testate, but according to the record and the statements of interested counsel, intestate as to any real estate.
Litigation has arisen by reason of a deed given by Maggie L. Dorsey to her husband, Frank B. Dorsey, Sr., which was dated March 17, 1915 and which in part reads as follows:
"* * *, I, Maggie Dorsey, hereby sell and convey to Frank B. Dorsey, Sr., trustee, with power to encumber, sell and convey, alienate for reinvestment, or transfer this trust as in the discretion of the trustee may seem best, the following parcels of real estate, to-wit: [description of property], and I, the said Maggie Dorsey, warrant the title against all persons whomsoever. And I, Frank B. Dorsey, Sr., join in the execution of this deed as the husband of the grantor for the purpose of conveying my interest as spouse."
This deed was not filed for record until September 11, 1937.
On the same date as that of the giving of the deed previously referred to, Maggie L. Dorsey conveyed other real estate to Frank B. Dorsey, Sr., said property being the homestead of grantor and grantee. On December 6, 1930, Frank Blinn Dorsey, the grantee in the first deed heretofore referred to, executed a deed of conveyance as trustee to Frank Blinn Dorsey, Jr., this last deed covering a portion of the property described in the two deeds heretofore mentioned. In the deed of December 6, 1930, the grantor conveyed the property to Frank Blinn Dorsey, Jr., "in trust for the persons and purposes hereinafter named, * * *." In this last referred to deed there is found this further *Page 732
statement. "The purpose and intent of this conveyance is that the said Frank Blinn Dorsey, Jr., and his successors, in trust hereinafter provided for, shall hold said real estate for the benefit of my daughter, Margaret Dorsey, and for her alone, so long as she shall live, * * *." Further provisions were incorporated in the deed as to the rights and powers of Margaret Dorsey and also further expressions as to the rights, duties, and powers of the trustee.
The plaintiff brings an action for the partition of the real estate described in the two deeds mentioned and dated March 17, 1915 and to quiet the title thereto and for an accounting of rentals received. Her attack is particularly directed against the first deed. No especial complaint is made against the second deed of March 17, 1915 except that there was an abandonment of that deed as well as of the other deed and that there was no delivery of either deed.
In plaintiff's brief and argument it is contended that this first deed "was never delivered, but if it was delivered it was an attempt to create a Trust Estate but which failed because no beneficiary was designated nor any of the terms of the trust set out in accordance with which a Court could determine the beneficiary or enforce the trust, and that in any event because thereof, this deed is a nullity and a cloud upon the title and the property would pass to the heirs of Maggie L. Dorsey at her death, vis: to each of her children and her husband in equal proportions and that upon her husband's death his interest would pass by inheritance to his two children, who would each thus become the fee title owner of a one-half (1/2) interest therein."
[1] The trial court held that the deeds which have been questioned were valid deeds of conveyance; that the plaintiff had failed to overcome the presumption of delivery by any competent evidence; that they conveyed absolute title and particularly so held as to the first deed wherein the grantee was designated "Frank B. Dorsey, trustee." The trial court dismissed plaintiff's petition and the plaintiff has, appealed.
The plaintiff asserts the trial court erred in holding that there was no intention on the part of the grantor of the first deed to create a trust, and in construing said deed to mean that *Page 733
the grantor intended to vest a simple fee title in the grantee. The trial court in its written opinion in referring to the word "trustee" following the grantee's name in part stated.
"There is nothing else in the deed indicative of the grantor's purpose to pass the property in trust; neither has there been any competent evidence introduced to show the terms of the trust, and the beneficiary. * * *. I am therefore constrained to hold that the name of the grantee being followed by the word `trustee' does not show an intention to create a trust. As no trust was created by the deed, the words `transfer this trust' becomes surplusage. And as no competent evidence was introduced showing the terms of the trust, and the beneficiary, I find that the grantee, Frank B. Dorsey, Sr., took the property in his own right."
It is our judgment and conclusion that the trial court was correct in so holding. The plaintiff's particular attack is directed against the first deed heretofore set out and which was dated March 17, 1915. The plaintiff does not claim that this deed was not properly signed, executed, acknowledged, and recorded. She does assert, however, that there was no delivery.
[2] It has been the universal holding of this court that where a deed has been signed, acknowledged and recorded, it is presumed to have been properly delivered and those who attack a deed assume the burden to overcome the presumption of delivery. Burch v. Nicholson, 157 Iowa 502, 137 N.W. 1066; Robertson v. Renshaw,220 Iowa 572, 579, 261 N.W. 645, 648; Jones v. Betz, 203 Iowa 767,210 N.W. 609, 213 N.W. 282; Kiser v. Morton Farm. Mut. Ins. Assn., 213 Iowa 18, 23, 237 N.W. 328; Tutt v. Smith, 201 Iowa 107,110, 204 N.W. 294, 48 A.L.R. 394. There must be presented, evidence that is clear, convincing, and satisfactory to overcome the presumption of delivery.
In the case of Jones v. Betz, supra (at page 768 of203 Iowa, page 609 of 210 N.W.), this court stated:
"It is too well settled to require citation of authorities that, to make a warranty deed effective, it must be delivered. It is also well settled that, where a deed is signed, acknowledged, and *Page 734
recorded, it is presumed to have been properly delivered; but, of course, this presumption is a rebuttable one. [Citing cases.] Among the above cases, the Webb case and the Stiles case were cases where the deed was recorded after the death of the grantor. It is equally well settled in this state that the plaintiff has the burden of showing non-delivery by clear and satisfactory proof. * * *."
Plaintiff appellant in this case has presented no competent evidence as to the nondelivery of the deed and consequently has not met the burden of proof by clear and satisfactory evidence.
[3] The designation of trustee after the name of the grantee necessitates consideration as to the effect of this designation and usage. It is the contention of the plaintiff that it should not be construed as descriptio personae but that it indicates an intention to create a trust. It is the further claim of the plaintiff that even though the first deed referred to did not in effect create a trust because of a failure to name a beneficiary and because of its indefiniteness the fee simple title would not vest in the grantee as an individual but would remain in the grantor. This question has not been particularly passed on heretofore by this court. However, in the case of Rogers v. Rutherford, 210 Iowa 1313, 1316, 232 N.W. 720, 721, this court in commenting upon a somewhat similar situation stated:
"* * *. There is no evidence whatever of any trust or agreement of trust, except in the use of the word `trustee' in the documents and the somewhat conflicting statements of McCutchan as to who constituted the cestui que trust. * * *."
In 65 C.J. 269, section 48, there is found this statement which pertains to a situation such as is under consideration in this case.
"* * *. The use of such words [trust, or trustee,] will not of itself be sufficient to create a trust, * * *." Citing Boskowitz v. Continental Ins. Co., 161 N.Y.S. 680, 175 A.D. 18; Cartwright v. Moffett, 69 Or. 368, 136 P. 881, 138 P. 1076.
A situation of a somewhat similar character is further commented *Page 735
upon in the case of Sansom v. Ayer Lord Tie Co., 144 Ky. 555,556, 139 S.W. 778, where it is stated:
"The weight of authority seems to be that where an instrument vests title in one as trustee without disclosing on the face of the instrument the nature of the trust, or the name of the cestui que trust, then the word `trustee' is merely descriptive, and the ownership vests in the individual in fee." A statement and holding of this same character is found in Barker v. Temple Lumber Co., Tex. Civ. App., 12 S.W.2d 175, 179, where it is stated:
"It does not contain words indicating any character for a trust or suggesting identity of a cestuis que, and the granting words are: `Has granted, sold and conveyed and do by these presents grant, sell and convey unto the said J.H. Rogers, trustee.'"
Further in the opinion the court states: "In our opinion, in the circumstances by which the deed is now conditioned, use of the words `trustee, etc.' must be regarded as descriptiopersonae." See also Andrews v. Atlanta Real Estate Co.,92 Ga. 260, 18 S.E. 548.
Further study of the first deed of March 17, 1915 definitely, bears out the contention that there is no beneficiary under what is claimed to be the trust created by that deed. It is our holding and conclusion that this did not create a trust. It will be observed that the deed gives the grantee the right "to encumber, sell and convey, alienate for reinvestment or transfer this trust as in the discretion of the trustee may seem best, * * *."
In the American Law Institute Restatement of the Law of Trusts, section 125, page 315, it is stated:
"If property is transferred to a person to be disposed of by him in any manner or to any person he may select, no trust is created and the transferee takes the property for his own benefit."
Further in the text where comment is made concerning the above statement, the rule above set forth is elaborated upon and the following explanation is made. *Page 736
"No trust is created if the transferor does not manifest an intention to impose enforceable duties upon the transferee. His intention not to impose enforceable duties may be shown by the fact that he uses precatory rather than mandatory words. * * *."
It is our conclusion that there was not an intention to create a trust herein by the deed in question and we so hold. It is our further holding that the grantee in the deed received the property conveyed unincumbered by any trust relationship and that there was no such indefiniteness as to cause us to say that the title remained in the original grantor.
The trial court found that there had been a proper accounting made prior to the hearing in the lower court and dismissed plaintiff's petition in its entirety. We have given consideration to the cases cited by appellant. After thorough consideration of all the questions involved it is our judgment and conclusion that the trial court was correct in its holding and it should be and it is affirmed. — Affirmed.
HALE, C.J., and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430011/ | On the morning of November 9, 1939, a check dated Anamosa, November 6, 1939, for the sum of $10.80 was presented to and cashed by the Clarence Savings Bank of Clarence, Iowa. It was drawn on the Citizens Savings Bank of Anamosa and payable to Mrs. H. LaRue. This check is Exhibit 2. *Page 750
In the afternoon of the same day a check similarly dated, for the same amount, on the same bank, was presented to and cashed by the Farmers Savings Bank of Martelle in Jones county, Iowa. This check was payable to Mrs. Harriet E. LaRue and purported to have been signed by Mrs. C.W. Metcalf. This check, Exhibit 1, is the one upon which this prosecution is based.
On the 14th day of November, 1939, a check dated DeWitt, November 10, 1939, drawn on the First National Bank, for $14.65, was presented to and paid by the Union Savings Bank of Grand Mound, Iowa. This was payable to Mrs. Harriet E. LaRue. It bore the name of Mrs. Sadie McDermott as maker.
[1] These checks were forgeries. Defendant was identified as the Mrs. LaRue who presented and cashed them. The jury was justified in the finding of the facts as we have thus far narrated them though some are in dispute. Appellant does not argue the insufficiency of evidence but contends that the venue of the crime was not established in Jones county. In this connection it is to be noted that the defendant was a resident of Cedar Rapids. She cites two cases, neither of which supports her. In State v. Schwenderman, 192 Iowa 349, 184 N.W. 629, defendant never was in the county in which the forged instrument was presented and cashed, and the most that could be found against him was that someone gave him, in another county, a letter with a check enclosed for mailing to the owner of the check. State v. Brooks, 222 Iowa 651, 269 N.W. 875, involved a charge of rape. The record there was wholly silent with reference to the county in which the alleged crime was committed. We held that venue was not established. Appellee cites, with cases from other jurisdictions, State v. Blanchard, 74 Iowa 628, 38 N.W. 519; State v. Thompson, 19 Iowa 299; and State v. Spayde, 110 Iowa 726, 80 N.W. 1058. These appellant rather scornfully rejects as authority in this language:
"The two old cases cited by appellee were decided in the period previous to the horse and buggy age. It was in 1865 which was the lumber wagon age. What might be an inference *Page 751
as to a forgery being committed in the county where the instrument was passed in the year 1865 would not be an inference now in the motor vehicle age."
It will be observed that this does not proceed beyond bare statement. The inference defendant would have drawn is plain but it does not logically follow. We are not prepared to say that lapse of time in and of itself is disparagement. At any rate the principle of these decisions has not been overruled, qualified or questioned so far as we have been able to discover. In this case the check was dated in Jones county, was presented and cashed there by this defendant. If appellant's argument were to be accepted, there would be no way of convicting a forger except, perhaps, on the accidental circumstance that someone saw the forgery committed. We have said that if there is a dispute as to venue, the question is for the jury. State v. Schwenderman, supra; State v. Spayde, supra. We find no error here.
[2] Appellant's second complaint is akin to the first except that fault is found with this language in instruction No. 9:
"In this connection you may consider the alleged possession of the defendant in Jones County, Iowa, of the check claimed to have been forged, the bank upon which it was drawn, the place of the alleged passing of the check, the alleged residence of the defendant, and all of the facts and circumstances disclosed by the evidence bearing upon this question, and from it all, it is for you to determine whether the alleged offense was committed in Jones County, Iowa."
Defendant contends these "facts and circumstances set out singly and collectively do not constitute sufficient evidence to establish the fact of venue." This instruction is supported by State v. Blanchard, supra.
[3] Appellant's next complaint is against instructions Nos. 6, 7, and 8, having to do with expert or opinion evidence. We are not certain as to just what the complaint is but defendant says that the statement of instruction No. 6 that expert evidence *Page 752
is of the "lowest order when unsupported by convincing reasons based upon facts appearing in the evidence," is an erroneous statement of the law. The only expert to offer an opinion was called by the State so we cannot see how defendant was hurt.
Instructions Nos. 6, 7, and 8 follow very closely No. 3 asked by the defendant. Defendant complains because the court divided the requested instruction "into three different instructions, leaving out pertinent parts and mellowing the benefits of the law favorable to the appellant." We have compared the instructions given and requested and we see no substantial difference. Instruction No. 6, as has been stated, instructed with reference to the low quality of expert testimony when based upon a comparison of handwriting. That instruction went on to say, in line with defendant's requested instruction No. 3, that it is "most useful in cases of conflict between witnesses, as corroborating testimony."
Instruction No. 7 reads:
"If such expert witness during his testimony as a basis for his opinion, points out on the writings in evidence, or photographic enlargements thereof, similarities or dissimilarities, shadings, line breaks, line quality, firmness of stroke or otherwise, or other physical facts, so that they may be observed by you, thensuch facts are substantive evidence — that is, independentevidence, or evidence sufficient in itself without furthersupport, and may be so considered by you." (Italics inserted.)
Defendant complains that this instruction in effect directs the jury to find the defendant guilty. As stated, there was one expert witness. He pointed out certain claimed similarities in comparing the various signatures and there was no evidence to corroborate it except such inherent credibility as the jury might give it. It seems clear that what the court meant to say was that the characteristic similarities in the handwriting, which the handwriting expert was able to point out and which, of course, would appear from the face of the writing and could be seen, when pointed out, by the jury as readily as by the court, standing alone in and of themselves, became and were *Page 753
substantive evidence and entitled to be considered by the jury, independent of the expert's opinion, along with other substantive evidence in determining the guilt or innocence of the defendant.
[4] Defendant's fourth division complains of the introduction of the other forged checks. Our decisions (cited above) dispose of that contention. That such evidence is admissible in this class of cases is not open to dispute.
[5] Division V of appellant's argument is a vigorous assertion of error with respect to the refusal of the court to admit defendant's Exhibit B which is, she says, in all respects like the State's Exhibits 1, 2, and 3. The court refused to admit Exhibit B for lack of foundation. It was right. There was no foundation of any sort laid which would have justified its admission. If a bare similarity in word and figures, without proof that it was in the same handwriting as the forged checks, was sufficient, it would be easy to fabricate a defense by offering any number of checks without preliminary proof except such similarity. The fact that defendant was in custody at the time Exhibit B was presented and cashed has no probative value under the circumstances.
[6] The court gave this instruction:
"The defendant is a competent witness in her own behalf, and in determining the weight and credit to be given to her testimony you are to be governed by the same rule as is given you in these instructions for determining the weight and credit to be given by you to the testimony of each and every witness before you.
"You should take into consideration her interest in the result of the suit, the circumstances under which the testimony was given, and all other circumstances connected therewith.
"You are not required to receive blindly the testimony of such accused person as true, but you are to consider whether it is true, as made in good faith, or only for the purpose of avoiding conviction."
Defendant assails the third paragraph in this language: *Page 754
"There was no reason or call for the court to give the last paragraph of this instruction. It was a pointed attack upon the defendant that was unwarranted from anything that appeared in the trial and it was not proper to call the jury's attention to the testimony of the defendant. This was prejudicial * * *."
We think this complaint is not justified. Some members of this court feel that this instruction might well have been omitted but instructions of the same substance and effect have frequently been approved by this court and the majority is of the view that these cases should not be overruled. It follows that the court did not err here.
[7] We have considered the various contentions made by appellant but have found it unnecessary to analyze them in detail. There remains, however, one unusual feature to be considered. In a reply argument, appellant presents what purports to be a confession signed by the real Harriet E. LaRue, presently an inmate of a reformatory in Shakopee, Minnesota. In this purported confession full responsibility is assumed for the checks involved in this case; an intent to exonerate the defendant is evident. Whether the alleged confession is true or not, we are not called upon to decide. Defendant's attorney says:
"It is the duty of the County Attorney and the Attorney General of the State of Iowa to represent the defendant as well as the State of Iowa. It is the duty of these officers, if they have discovered evidence showing that there has been a miscarriage of justice, to act immediately and do what they can to right the injury done an innocent person."
This may be admitted and that these officers will proceed according to the dictates of justice as they see it, must be conceded. This confession and its effect is not before us.
Finding no error, the trial court must be, and it is, affirmed. — Affirmed.
HAMILTON, C.J., and HALE, OLIVER, BLISS, MILLER, and STIGER, JJ., concur. *Page 755 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430012/ | No attempt will be made to set out in detail the many and varied activities of the decedent while in the service of the Mustaba Investment Company. There is substantially no conflict in the evidence, and it will be sufficient for our purpose to sketch in outline such facts as seem determinative of the question before us.
The defendant Mustaba Investment Company (which will hereafter be referred to as the Mustaba Company) was the owner of approximately twenty various farms, which were being operated by tenants who furnished the machinery and otherwise attended to the production of such crops as were raised thereon. Some of the buildings on the various properties were in need *Page 1113
of repairs and the decedent was employed by the Mustaba Company to attend to such repairs, and in addition to engage in certain other activities with reference to such farms. Some of these will be later pointed out.
At the time of his injury Criger had been employed by the Mustaba Company for a period of approximately four and a half years. The record discloses that during this period he was a trusted employee, but had no independent authority to act without consulting his employer except to a very limited extent. It was the habit of the officers of the Mustaba Company, when the matter of repairs was involved, to make an inspection of the buildings to be repaired and then designate the repairs to be made. From that time on Criger was authorized to hire enough men to do each particular job and to pay the men at not to exceed a fixed figure. He likewise had the right to discharge those he employed. Criger had no authority to sign checks. The men were paid by checks signed by an officer of the company. The deceased had no certain orders as to what he should do from day to day, and upon which farms he should be engaged; he sometimes looked after work on more than one farm at the same time. He kept in constant touch with his employers either personally or by telephone. On occasion he looked after the matter of settlement between the tenants and the owners to the extent of seeing that his employers got their proper share of the crops. The kind of crops to be planted was usually determined by the tenants and the owners directly, though it appears that on rare occasions Criger was sent by the company to one or the other of the farms for that purpose. Prior to his employment by the Mustaba Company he had been a carpenter, and from thenceforward to the time of his death his whole time was taken up with affairs of the farms owned by that company. He had no other employers and no other employment. He gave his time exclusively to these farms, and had a fixed salary of $100 per month and house rent.
At the time of his death Criger was going from one farm to another in the discharge of his duties, and on the highway met with an accident which resulted in his death.
Much more might be added to indicate the activities of the deceased, in the way of making repairs upon buildings and fences, and general supervision of the farms to which his employment *Page 1114
was directed, but the foregoing will be sufficient to give the outline.
On this state of affairs claimant alleges that her husband was not engaged in an agricultural pursuit within the meaning of the Compensation Law; but was in such position, by reason of the extent and variety of his duties and the character of the employer itself as an investment corporation, to come within the provisions of the statute.
As already pointed out, the defendants resisted this contention on the two propositions above stated. To these we direct our attention.
1. We have recently had occasion to examine the statutes and the authorities on a somewhat analogous question, in Trullinger v. Fremont County, 223 Iowa 677, 273 N.W. 124, and it will not be necessary to go over that ground again. Further examination of the authorities cited by the parties in the case before us, and additional investigation by us, has not persuaded us to alter our position as then announced.
It will be recalled that in the Trullinger case, supra, the injured party was an employee of Fremont County, acting under the direction of the county engineer in the operation of heavy road machinery, which at the time of his death was being loaned, in a sense, to aid farmers during the drought. In that case the injured servant had no other employer than the county which paid him his wages, except on the two occasions pointed out. He took no orders from the farmers and had no connection with them except in the limited way described in that opinion.
Here we have a different situation. In this case Criger had no employment during the four and a half years preceding his death except with and on the farms of the Mustaba Company. His whole time was engaged in the activities incidental to the upkeep of the improvements, and the cultivation, harvesting, and marketing of the crops grown thereon at the end of the season. Though he was a carpenter, as a servant of the Mustaba Company his whole time and attention were given to these farms and to nothing else. The question, then, is: Was he, within the meaning of paragraph 3, section 1361 of the Code, a person engaged in agriculture, in so far as the injuries he suffered were sustained while engaged in agricultural pursuits or any operation connected therewith? The conclusion seems inevitable that he was. It is difficult, on this record, to imagine how any other *Page 1115
position could be assigned to him, unless perhaps that the accident happened on the highway; or that the character of the Mustaba Company distinguished Criger's position with the company from that of the farm hand who is employed directly, either by owner or tenant of a single farm. The first alternative is out, because the statute expressly provides that the act shall not apply to one so engaged, whether the injuries are sustained "on or off the premises of the employer." We see no reason for making the distinction suggested in the second proposition, and none is given to us in the briefs or in the authorities cited. In fact, such cases as have been brought to our attention by the parties herein from other jurisdictions negative such construction. Examples of this kind will be found in Shafer v. Parke, Davis
Co., 192 Mich. 577, 159 N.W. 304; Bates v. Shaffer, 216 Mich. 689,185 N.W. 779; Keefover v. Vasey, 112 Neb. 424, 199 N.W. 799, 35 A.L.R. 191; Coleman v. Bartholomew, 175 A.D. 122, 161 N YS. 560; Guse v. Wessels (Neb.), 270 N.W. 665; Peterson v. Farmers State Bank, 180 Minn. 40, 230 N.W. 124.
Our decisions referred to in the Trullinger case, supra, point to the same conclusion.
It is to be noticed that Sylcord v. Horn, 179 Iowa 936,162 N.W. 249, 7 A.L.R. 1285, was decided while section 2477-m of the 1913 Supplement to the Code of Iowa was in force. That section was much like the statutes of a number of other jurisdictions. In its scope it was not nearly so broad as the present statute. Said section 2477-m declared that the Compensation Law "shall not apply to any household or domestic servant, farm or other laborer engaged in agricultural pursuits, nor persons whose employment is of a casual nature." Now by enactment of the Fortieth Extra General Assembly, H.F. 42, sec. 1 (see Code, § 1361), the scope of this law is greatly extended. It is not confined to agricultural laborers, but excludes all persons engaged inagriculture or in agricultural pursuits, or any operationsconnected therewith. (Italics ours.)
We cannot avoid the conclusion that the nature of the employment of Criger brought him within the exclusion of said section 1361 of the Code. If this construction of the law seems harsh, the remedy is by appeal to the legislature. This court may not concern itself with the wisdom of statutes so long as *Page 1116
they are enacted by the legislature within the scope of its constitutional powers.
2. What has gone before makes it unnecessary that we examine at length the contention with reference to the alleged representative capacity of Criger. Counsel seem to lay some stress on the provisions of section 1383 of the Code of 1935. Cases are cited from other jurisdictions which are believed to support defendants' construction of that statute. Both section 1383 and most or all of the cases cited have to do with the question of notice of an injury and the failure to give notice unless the employer "or his representative shall have actual knowledge of the occurrence of an injury." That question is not before us. A reading of this record does not lead us to the conclusion so confidently pressed upon us by defendants' counsel, — that Criger was in a representative capacity and, as a consequence, was excluded by the further provisions of section 1421, paragraph 3, subd. d., of the Code, which defines who are not deemed "workmen" or "employees." The language of that paragraph is: "A person holding an official position, or standing in a representative capacity of the employer * * *." Since it is not necessary to do so, we refrain from pointing out the testimony which might seem to warrant the conclusion that Criger did not stand in a representative capacity within the meaning of that law.
Because of the views expressed on the right construction of section 1361, we hold the trial court was in error, and that its decision should be, and therefore it is, reversed. — Reversed.
HAMILTON, C.J., and DONEGAN, PARSONS, STIGER, and RICHARDS, JJ., concur.
ANDERSON, KINTZINGER, and MITCHELL, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430013/ | To a general understanding of the questions raised on this appeal, a statement of the facts is necessary:
The plaintiff was and is a partnership residing in Omaha, Nebraska, engaged in buying and selling live stock. On October 18, 1922, the plaintiff sold to H.H. Keeler Son, of Marshall County, Iowa, 59 head of steers, for the sum of 1. CHATTEL $2,418.82. These were stock cattle, and were MORTGAGES: taken to and fed by the purchaser in Marshall requisites County, Iowa. To secure payment therefor, Keeler and Son on that date executed to the plaintiff a validity: chattel mortgage covering the cattle thus description purchased, which mortgage was recorded in of property: Marshall County, Iowa, on October 20, 1922. The non-jury cattle were shipped over the Chicago
question. Northwestern Railway to Marshall County, and taken to and upon the farm referred to in the chattel mortgage. In May, 1923, 27 head of these cattle were sold to John Plumb, who shortly thereafter sold these 27 head, with some other cattle, to Adolph Pose, and Pose, a few days thereafter, sold these 27 head, with other cattle, to the defendant, O.J. Parsons. Later, in October, 1923, this action in replevin was instituted by the plaintiff, a writ was issued, and 27 head of steers were taken under such writ.
The petition of the plaintiff was in the usual form in an action of this kind. Defendant, by way of answer, denied generally and specifically each and every allegation contained in the petition and amendment thereto, except that he admitted that he is a resident of Marshall County; denied that the plaintiff was the owner and holder of any chattel mortgage or other lien upon the cattle described in the petition; denied that the cattle taken under the writ were the cattle described in the chattel mortgage; denied that the description of the cattle in the mortgage was *Page 1243
sufficient; and denied that he was in possession of any cattle or property described in the petition.
In the submission of the case to the jury, the court, in its instructions, stated, among other things:
"You are further instructed that, unless you find from a preponderance of the evidence the identity of the cattle and the description of the same in the chattel mortgage was sufficient to impart to the said Parsons constructive notice, as defined in these instructions, then your verdict should be for the defendant."
In another instruction the court told the jury that the plaintiff was bound to prove by a preponderance of the evidence the following matters which are in dispute:
"(1) * * *; (2) that the description of the cattle contained in the chattel mortgage was so complete and sufficient that a third person with no knowledge of the cattle other than was contained in the chattel mortgage itself, aided by such inquiry as the instrument — i.e., chattel mortgage — indicates and directs, would be able to identify the cattle purchased by the defendant, Parsons, from Pose, * * * The matters of identity and sufficiency of description are to be determined by this jury from all the facts and circumstances of the case, as established by the evidence."
Later, in another instruction, we find the following:
"In other words, was the defendant, Parsons, given notice by that record that the plaintiff had a mortgage on the cattle he, Parsons, was purchasing of Pose? If you find that the mortgage did not give such notice, then your verdict should be for the defendant. The burden of proof is upon the plaintiff to establish such notice."
The complaint of the plaintiff herein as against these parts of the instructions is that they submit to the jury the question of the sufficiency of the description in the chattel mortgage; whereas appellant claims that the court should have held, as a matter of law, that this description was sufficient, and should have so told the jury, leaving for the jury the question of determining whether or not the cattle taken under the writ of *Page 1244
replevin were the identical cattle described in the chattel mortgage, and that, if they were, the plaintiff was entitled to recover.
The chattel mortgage is in the usual form, and, so far as material to our consideration, the description is as follows:
"Fifty-nine head of yearling Whiteface Shorthorn and Black Pole horned and dehorned steers average weight 597 pounds all branded S called Wiggling S back of left shoulder * * * they being all of this description now owned or controlled by us and are to be kept on * * * place being rented by us from T.W. Thomson, and located 3 1/2 miles west of Albion, Iowa, in Marshall County * * * the above described live stock being all of the kind now owned by me and are in my undisputed possession, free from all liens and encumbrances and kept on my premises, * * * in Marshall County, Iowa, being the live stock purchased this 18th day of October, 1922, of Wertheimer Degen."
It is apparent from the above-quoted parts of the instructions that the court submitted to the jury the question of whether or not the description in this chattel mortgage was sufficient to make a good chattel mortgage, and thus create the constructive notice required to prevent Parsons from being an innocent purchaser. We think the court erred in submitting this case to the jury, in that it should have held, as a matter of law, and so told the jury, that this description in the chattel mortgage was sufficient to meet all the requirements of the law to make a good and valid chattel mortgage. We have had this question before us many times, and, as will be seen from the following cases, this description was sufficient to meet the requirements of the law:Rhutasel v. Stephens, 68 Iowa 627; Wheeler v. Becker, 68 Iowa 723; Kenyon v. Tramel, 71 Iowa 693; City Bank of Boone v. Ratkey,79 Iowa 215; Colean Implement Co. v. Strong, 126 Iowa 598; IowaSav. Bank v. Graham, 192 Iowa 96; Bowman-Boyer Co. v. Burgett,195 Iowa 674; Liscomb State Sav. Bank v. Akers, 197 Iowa 706.
It is to be noted that these cattle were branded as specified in the mortgage, and the evidence shows without material dispute that the cattle taken under this writ bore the brand described in the chattel mortgage. The farthest the defendant and his witnesses go is to say that they never noticed or saw the *Page 1245
brand on the cattle, but neither he nor any of his witnesses deny that the brand existed. All of plaintiff's witnesses testified positively that this brand of the Wiggling S did exist on each and all of the cattle taken under this writ. Further than this, the testimony undisputedly shows that, out of the cattle described in the plaintiff's mortgage, 27 head were sold to John Plumb, who sold these 27 head to Pose, and Pose sold the same 27 head to the defendant, Parsons. It is undisputed that the cattle purchased in Omaha were taken upon the Thomson farm, which was rented by Keeler Son, and were kept there from October, 1922, to May, 1923, and that said farm was 3 1/2 miles west of Albion, in Marshall County, Iowa. The remainder of the cattle described in the chattel mortgage were sold on the Chicago market, and are not involved herein.
This same plaintiff had a somewhat similar case before this court, entitled in their name against Shultice, reported in202 Iowa 1140. Some statements are made in that opinion which deserve attention. In that case, the cattle were never taken on the farm in Tama County. There was a mistake as to the name of the town which was referred to in the chattel mortgage. The mortgagor in that case sold the cattle to Plumb, and one McIlrath sold to the defendant in that case; but there was no showing of a sale by Plumb to McIlrath. The real point decided there was that, even though there was an error in the description in the chattel mortgage as to the location of the personal property, notwithstanding such error, there might be enough left in the description in the chattel mortgage to generate a jury question as to whether or not the property could have been identified from the entire description contained in the mortgage. The opinion cites as authority Peterson v. Foli, 67 Iowa 402; Packers Nat.Bank v. Chicago, M. St. P.R. Co., 114 Iowa 621; Frick v. Fritz,115 Iowa 438; Livingston v. Stevens, 122 Iowa 62. A reference to each of these cases need not be made in detail; but in each of them, as in the Shultice case, supra, there was an erroneous description, and the question was whether or not there was enough left in the mortgage to identify the property. The rule there announced has no application to the situation before us, because in the instant mortgage there is no error in the description, and, as a matter of law, the description is perfect and complete, and sufficient to make constructive notice to *Page 1246
any subsequent purchaser, as was Parsons. This being true, it was error for the court to submit to the jury for their determination the sufficiency of the description in the chattel mortgage.
In the trial of the case, the plaintiff offered in evidence a certificate from the county recorder, showing the recording of the chattel mortgage in controversy; and objection to the same was sustained. The record is not very 2. EVIDENCE: satisfactory in this respect. There is a documentary statement that the chattel mortgage was evidence: originally made in duplicate, and the court certificate remarked that one copy had been introduced in of county evidence, and that was sufficient. It is to be recorder. noted that the plaintiff alleged that the chattel mortgage was duly recorded, and the defendant, of course, by his general denial, questioned the accuracy of this allegation. It may be that the copy of the chattel mortgage originally offered in evidence did not show the recording thereof, and it was proper, therefore, to show by this certification that said mortgage was duly recorded. A certified copy of such record is admissible in evidence. Code, 1927, Sections 10025 and 10026.
The court in another instruction said to the jury: "The recording of that mortgage gave notice of what its terms contained, but of nothing more than its terms contained." This is an unfortunate expression, in that the recording 3. CHATTEL of the mortgage not only gave notice of what it MORTGAGES: recited, but of all facts that defendant might requisites have learned by pursuing the recitation of the and mortgage. Thomas v. Kennedy, 24 Iowa 397; Loser
validity: v. Plainfield Sav. Bank, 149 Iowa 672. In the description: latter case we held that it was notice to the jury world, not only of the facts and claims therein question: set forth, but also of all other material facts instruc- which an inquiry thereby reasonably suggested tions. would have developed. See also on this question the Shultice case, supra.
For the errors heretofore referred to, prejudicial to the plaintiff, the case is — Reversed.
MORLING, C.J., and STEVENS, De GRAFF, and WAGNER, JJ., concur. *Page 1247 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430015/ | On March 4, 1930, the plaintiff filed his petition in the District Court of Greene County, Iowa, alleging, among other things, in substance, that at one time he and his brother, S.M. Taylor, were jointly interested in real estate of the approximate value of $40,000.00. This real estate consisted of a farm and two properties in town.
In 1920, the farm was encumbered for $8,000.00. It is claimed that the mortgage was for money owed by S.M. Taylor. On December 2, 1920, the claimant deeded, as he claims, in trust to his brother, all his real estate which he held jointly with his brother, which deeds were recorded. Later, S.M. Taylor died, leaving as his surviving spouse Jessie M. Taylor, who was later appointed administratrix of the estate of S.M. Taylor. It is alleged that after the transfer by the plaintiff to S.M. Taylor of the former's interest in said real estate, S.M. Taylor further encumbered the property. S.M. Taylor died, and his estate was closed. It is alleged that Jessie M. Taylor, the widow of S.M. Taylor, as administratrix of the S.M. Taylor estate, surrendered all the real estate to the mortgagee in settlement of the mortgage debt.
There are allegations, in substance, that there was an agreement between Jessie M. Taylor and the plaintiff to the effect that the plaintiff should not file his claims in the S.M. Taylor estate, and in consideration therefor the plaintiff should receive the proceeds of a certain $5,000.00 life insurance policy and other property from Jessie M. Taylor; that said Jessie M. Taylor was to execute a will to carry out these agreements. It is alleged that the plaintiff has not previously filed his claim in the Jessie M. Taylor estate because, among other things, he anticipated that a will would ultimately be found.
The plaintiff claims the entire Jessie M. Taylor estate. *Page 846
By an amendment subsequently filed, he alleges that certain so-called "peculiar circumstances entitle the claimant to equitable relief," under Section 11972 of the Code of 1931.
The answer, among other things, alleges that there was a settlement in the S.M. Taylor estate, and that there were no peculiar circumstances in the case entitling the plaintiff to equitable relief, and a general denial.
The cause was transferred to equity, so that the court could determine whether plaintiff had shown equitable grounds to excuse not filing in time. The court held for the defendant, and that is the only question before us on this appeal.
I. Generally speaking, it is claimed by the appellant that the estate was open and solvent, and that there were peculiar circumstances by which the plaintiff was misled not to file his claim within the statutory period.
In the first place, it must be borne in mind that the burden is upon the plaintiff to satisfactorily allege and prove such facts and circumstances as would amount to a justification for his failure to file and give notice of his claim before the expiration of the statutory period. See In re Palmer's Estate,212 Iowa 21, and cases cited.
There must be either a showing of diligence in the matter or a showing of proper excuse for want of such diligence. See Anderson v. Storie, 208 Iowa 1172; Simpson v. Burnham, 209 Iowa 1108. The fact that the estate is solvent and unsettled does not aid the plaintiff in this proof. C. N.W. Ry. Co. v. Moss, 210 Iowa 491. Moreover, "no general rule can be laid down in cases of this character. Each case must be determined upon its own peculiar circumstances." Anderson v. Storie, 208 Iowa 1172, l.c. 1178. Many other cases might be cited in support of the foregoing principles.
An analysis of the evidence in this case discloses that the plaintiff has not by any competent evidence brought himself within the requirements of the cases.
It will be recalled that this is a claim filed by the plaintiff against the administrator of the estate of Jessie M. Taylor, the deceased widow of S.M. Taylor, plaintiff's brother. The original claim and cause of action, if any existed, was against S.M. Taylor, or, after his death, the S.M. Taylor estate. In this connection, it is significant that the plaintiff filed a claim against the *Page 847
estate of S.M. Taylor for approximately $4,000.00, and the same was adjusted and settled, the plaintiff having executed his receipt therefor. The plaintiff's own language is:
"I filed a claim against my brother's estate for a note and some money that I had let him have, but I did not file any claim against his estate for the property I had held jointly with him at the time of his death."
We are not concerned on this appeal with the reasons, if any, why the plaintiff did not file his claim in his brother's estate. The question here is whether there are sufficient peculiar circumstances which warranted the plaintiff in delaying the filing of his claim in the estate of his brother's widow. In other words, the plaintiff claimed an interest in his brother's estate. He filed claims for a portion of his demands. Afterwards, he purposed to file a claim in the estate of his brother's widow by which he would assert his interest in the property possessed by his brother at the time of his brother's death. He did not file the claim in the estate of his brother's widow within the statutory time, and he is here seeking to show peculiar circumstances which warranted him in that delay. The experience which the plaintiff had in filing claims in his brother's estate must have greatly familiarized him with the procedure and the requirements of such an act. An examination of his testimony discloses that he realized the manner in which such claims should be filed, but he contends that he was misled by Jackson, the administrator of the estate of Jessie M. Taylor, deceased, Jessie M. Taylor having been the widow of his brother, S.M. Taylor.
It is unnecessary in this connection to go into the reasons offered by the plaintiff for not having filed his entire claim in his brother's estate. The plaintiff testified quite extensively in reference to a conversation he had with Jackson, the administrator of the Jessie M. Taylor estate. The essential element in the conversation is contained in the following answers to questions:
"He (the administrator) told me, `We will wait,' he says, `we will wait until the time is just about up, and then we will have a claim all made out for you.' Now, them are the exact words Everett Jackson told me.
"Q. Is that all he told you about that? A. Well, then *Page 848
we started to go out the door, and I says, `When will that time be?' and he says, `I think about the 25th of February.'"
It will be noted that, according to plaintiff's own story, the administrator did not promise to file the claim, but only to make one out. The conversation quoted above took place a long time prior to the expiration of the year in which to file the claim, and according to the plaintiff's own story, he saw the administrator almost daily and talked with him frequently, but the subject of filing the claim was never mentioned between them.
The plaintiff has shown no reasonable excuse for not having definitely ascertained the exact date when the year would expire. He has shown no diligence in that regard.
It appears that, shortly prior to this conversation with the administrator, one or more lawyers had advised the plaintiff that he could not prove his claim. This advice was evidently based upon the theory that no one heard any of the alleged conversation between the plaintiff and the deceased Jessie M. Taylor, acting as administratrix of the estate of her deceased husband, S.M. Taylor.
It appears that the year expired, not on the 25th of February, but on the 16th of January. This claim was filed on the March 4th following.
As previously stated, it is not claimed that the administrator promised to make out and file the claim, nor is it claimed that the administrator promised to pay the claim. Even though he had done so, this court has said in Mosher v. Goodale, 129 Iowa 719:
"The mere promise of an administrator to pay a claim is not sufficient excuse for delay in filing and serving notice thereof."
It is not claimed that the defendant Jackson, administrator of the estate of Jessie M. Taylor, made any request that the filing of the claim be delayed. The record discloses no fact which would furnish a basis for an excuse on the part of the plaintiff for failure to file his claim within the statutory time. Even assuming that there might be some persuasion in the argument that the administrator gave a wrong date for the expiration of the statutory period, an examination of the plaintiff's own testimony discloses the fact that the administrator did not fix any definite *Page 849
time. The administrator only said, in speaking of the day when the year would expire: "I think about the 25th of February." Surely a man who has had experience in the matter of filing claims against an estate, and who had the matter of the filing of his claim under consideration for a period of time, and who had consulted with lawyers about the validity of his claim and the filing thereof, cannot excuse a delay for such filing by merely testifying that the administrator said, in speaking of the time when the year would expire: "I think about the 25th of February."
We deem it unnecessary to set out the testimony at length. It wholly fails to convince us that there are any such circumstances as bring the plaintiff within the rules. The mere allegation that the claim is just is immaterial on the question of the diligence of the plaintiff in filing the claim. See Doyle v. Jennings,210 Iowa 853.
There is no competent evidence in the record warranting the plaintiff in believing that Jessie M. Taylor had made a will carrying out the promises which the plaintiff claims she made. Moreover, waiting to find a will would constitute no valid excuse for not filing his claim within the statutory period.
The cases relied upon by the appellant, when carefully analyzed, will be found easily distinguishable from those hereinbefore cited.
The trial court correctly ruled, and the cause must be, and is, affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430021/ | I. The petition assails the validity of a certain paving contract entered into by the town of Garner with the defendant contractor in March, 1920, for paving to be constructed upon the streets of such town. The contract was fully performed long before its validity was assailed. The ground of attack is that the legal effect of the contract was to create an indebtedness of the town which was in excess both of the constitutional and of the statutory limit of indebtedness; that the contract was, therefore, wholly void; that, because such contract was wholly void, all proceedings thereunder were likewise void; that the bonds under attack were issued only pursuant to the provisions of such contract, and were void for that reason. The contract provisions for payment for the work are all contained in the last part of the contract, as follows:
"And in consideration of the agreements and covenants herein contained on the part of said contractor, said town of Garneragrees to pay in the manner, and out of the funds hereinafterstated: The sum of $3.56 per sq. yd. for reinforced concrete paving: The sum of $1.30 per sq. yd. for excess grading. The sum of $68.00 each for catch basins, complete with casting. The sum of $75.00 each for inlets, complete with casting. The sum of $85.00 each for manholes complete with casting. The sum of $2.00 per lin. ft. for 10" vit. sewer pipe laid. The sum of $0.33 per sq. ft. for sidewalks. The sum of $15.00 per cu. yd. for extra concrete base. The sum of $0.55 per sq. ft. for concrete drive returns. The sum of $1.74 per lin. ft. for curb and gutter (if any). The sum of $0.94 per lin. ft. for curb 6" x 18" (if any).
"The price of paving to include all work outside of excess grading and excess concrete necessary for contractor to do to construct the improvement. The concrete headers at the ends of the pavement and the header rails at the railroad crossings to be measured with and paid for as paving. Payment shall be madethereon and therefor upon completion of said improvements or of any portion thereof at the end of the first season, according to contract and upon notice and proceedings required *Page 1366
by the laws of the state of Iowa, said town council shall make aspecial assessment for said street improvement as provided by thelaws of the state of Iowa, and especially by Sec. 792 of the Codeof Iowa and amendments thereto and supplementary thereof, and thesame shall be made in accordance with the provisions of Sec.792-a of the Supplement of the Code of Iowa, 1907, and shall belimited to the amount to be assessed against private property against all lots and parcels of land according to area so as to include one half of the privately owned property between the street improvement and the next street, whether such privately owned property abuts upon said street or not, but in no case shall privately owned property situated more than 300 feet from the street so improved be so assessed. Such assessments shall not exceed 25 per cent of the actual value of the lot or tract at the time of the levy, and shall be made as provided by the laws of the state of Iowa. Costs of the intersections shall be prorated over all property chargeable with said improvement and the amounts shall be in accordance with the laws of the state of Iowa. All cost of said improvement not assessed to abutting property and to property chargeable with said assessment under the laws of the state of Iowa shall be paid by warrants or bonds on the town improvement fund or such other fund as may be applicable thereto. In anticipation of the payment of suchspecial assessment to abutting property which shall not be paid to the said town at the time payment is due the contractor, the town council shall authorize and direct the mayor and town clerk of said town to issue street improvement bonds with interest coupons attached, payable only out of the proceeds of such special assessments when collected as provided by law, bearinginterest at a rate not exceeding 6 per cent per annum, payableannually. [The town shall sell all bonds and pay the contractor in cash. All in accordance with and as authorized by the laws of the state of Iowa, and not otherwise.]"
The foregoing is a sufficient setting forth of the contract for the purpose of this case. No attack is made upon the procedure pursuant to which the contract was entered into. The work thus contracted for actually cost upwards of $380,000, of which the contractor received about $360,000. The constitutional limit of indebtedness of the town was $80,000, and the *Page 1367
statutory limit was $20,000. The value of the property abutting upon the improvement was such that the entire cost thereof could legally have been levied upon the abutting property. By appropriate procedure, the town issued $9,500 of street improvement bonds, which were used in payment for the improvement. When the contract was completed, there was a deficiency due the contractor, over and above the full amount of all special assessments and the street improvement bonds, to the amount of $43,000. The contractor took judgment against the city for this amount. Thereafter, the city issued funding bonds for the payment of such judgment.
The primary question presented to us is: Was the contract in question void? If yea, then such holding must be predicated upon the terms of the contract itself. The fact, if such, that the performance of the contract resulted in a 1. MUNICIPAL deficiency over and above the special CORPORA- assessments, and that such deficiency was in TIONS: excess of the statutory limit of indebtedness fiscal permitted to the town, could not be effective to management: render the contract void ab initio. This is so unauthorized because there was nothing in the terms of the debt: curing contract that rendered necessary an excessive illegality deficiency. Corey v. City of Ft. Dodge, 133 Iowa in contract. 666. All obligation of payment by the city could have been met by legal special assessments. Concededly, this would not be the creation of an indebtedness, within the meaning of Constitution or statute.
Recognizing this fact, the appellants present as their fundamental proposition that the contract was rendered void by its own terms, because its legal effect was to create an indebtedness of $380,000. The argument is concentrated upon two sentences in the contract. For convenience of reference, we have inclosed such sentences in brackets, in the copy above set forth. They are the last two sentences in the contract, and are as follows:
"The town shall sell all bonds and pay the contractor in cash. All in accordance with and as authorized by the laws of the state of Iowa, and not otherwise."
It is contended that the effect of these sentences is to convert into a purported absolute indebtedness on the part of the city, all the payment obligations imposed by the contract upon *Page 1368
the city; and that such infirmity in the contract was incurable by any subsequent action of the parties' in relation thereto. Manifestly, this provision can be literally construed so as to render it quite inconsistent with and quite contradictory to all the provisions of the contract pertaining to special assessments. Manifestly, also, it is not impossible to give it a construction in harmony with such other provisions.
It appears from the evidence that, on and prior to the execution of this contract, the city council had a standing contract or offer from a bond broker, Schanke, to purchase all the bonds of the city issued for sewer or paving improvements, on the basis of 5 1/2 per cent interest. The bonds to be issued in this case would bear, under the statute, 6 per cent interest. With a view of saving to the abutting property owners the one-half per cent, the city council reserved the privilege of selling the bonds and paying cash to the contractor. After the contract was entered into, Schanke canceled his standing offer or contract. The city council immediately notified the contractor of their wish or purpose to withdraw such proviso. The contractor appeared before them at a regular meeting, and then and there acquiesced in the proposed withdrawal of such provision. Within the mutual purpose of the parties to the contract, this proviso was erased. This occurred on May 29, 1920, and before any part performance of the contract by either party. Thereafter, both parties mutually construed the contract precisely according to its terms, without any reference to such objectionable proviso. In other words, both parties mutually construed the contract, by conduct throughout the performance thereof, in strict accord with the provisions of the statute. Except for the deficiency, no payments were made to the contractor or demanded by him except the delivery of the proceeds of special assessments, either in cash or in bonds. If the proviso in question could thus be legally eliminated, the appellants do not contend that the contract was otherwise invalid. We are clearly of the opinion that the construction which the parties put upon their contract, and to which they mutually adapted their conduct, was permissible, whether such proviso were included or excluded
therefrom. In the light of the other special provisions of the contract which we have italicized for convenience of reference in the above quotation, *Page 1369
such proviso should be construed consistently therewith, if possible. It could be construed, not unreasonably under such rule, as a reservation by the city council of the privilege of selling its own bonds and turning the cash received therefrom to the contractor, provided that this could be done "according tolaw." Neither party purported to bind itself to any action which was not "according to law."
We are of the opinion also that it was competent for the parties to eliminate such provision in the manner in which they did, inasmuch as it was done before any liability had been created by part performance of either party. It will hardly be contended that the proviso could not have been eliminated on the day the contract was signed. Nor do we perceive any disability in the parties to eliminate the same thereafter, especially while the contract lay dormant and wholly unperformed. In re Appeal ofMayden, 156 Iowa 157, 160.
The proviso at most was a mere appendix, attached to a contract already complete; and its function was quite as casual and nonessential as that of its anatomical namesake. It did not necessarily interfere with the essential provisions of the contract. The worst that can be said is that it carried the potential of illegality. In the actual performance of the contract, it might be construed so as to become the seat of illegality, and might thereby, like an infection, prove fatal to the whole body of the contract. Undoubtedly it were better to cut it out than to leave it in. The argument of appellants at this point is predicated largely upon Allen v. City of Davenport,107 Iowa 90. We do not think that the case at bar comes within the discussion of that case. In that case the city was already indebted to the full constitutional limit. It entered into a contract which by its terms clearly increased its indebtedness. It began to pay the contractor out of its general fund, in violation of the constitutional limit. It proposed to reimburse itself thereafter, by levying special assessments. The performance of the contract was enjoined at the beginning of the attempted performance.
Suppose that, in the case at bar, the plaintiffs had sought an injunction against the city on the ground now pressed, on or before May 29, 1920. We think that in such a suit the court *Page 1370
could properly enjoin the performance of the objectionable proviso, and refuse injunction as to the rest of the contract. For the same reason, it could permit the parties themselves to eliminate such objectionable proviso. We think that the objectionable proviso was clearly severable from the rest of the contract, and that it could be separated therefrom by the mutual acquiescence of the parties, as readily as it was appended thereto. We hold that the alleged infirmity in the contract was fully cured by the mutual conduct of the parties in eliminating the same, before attempted performance.
II. The improvement bonds under attack were issued pursuant to the provisions of Section 830, Code of 1897, Section 792-f and Section 912-a, both of the 1913 Supplement, and Section 894, Paragraph 2, of the 1915 Supplement. No irregularity in the procedure is pointed out. As already indicated, the charge of invalidity as against them is predicated upon the invalidity of the original contract. Our conclusion announced in the foregoing division thereby becomes decisive of the validity of these bonds.
III. The question remains as to the validity of the 2. MUNICIPAL indebtedness for the deficiency due the CORPORA- contractor over and above the special assessment TIONS: fis- bonds. Under the statute, the city had power to cal manage- pay from its general fund for paving improvement ment: fund- and to incur indebtedness therefor to the ing bonds: statutory limit. Section 792-b, 1913 Supplement; time limit Section 751, 1915 Supplement; Ottumwa Brick
to question Const. Co. v. Ainley, 109 Iowa 386; Shelby v.
legality. City of Burlington, 125 Iowa 343.
If the deficiency in this case had not exceeded the statutory limit, there could be no question of the liability of the city for such deficiency, under the contract. But the deficiency exceeded the statutory limit. Notwithstanding such excess, the contractor obtained judgment against the city, and the city, proceeding under Section 905 of the Code of 1897, issued funding bonds, whereby the judgment was satisfied.
As to these bonds, the appellants contend that the judgment was collusive between the city council and the contractor; and that it should not, therefore, be deemed a conclusive adjudication of the validity of the indebtedness; and that the bonds *Page 1371
should be held void, at least to the extent of their excess above the statutory limit. On the other hand, the appellees not only deny the collusion as to obtaining the judgment, but they plead the bar of limitations of Section 913 of the Code of 1897, and plead further that the bonds had passed into the hands of an innocent holder. The innocent holder is in court as an intervener, making such claim for herself.
If it were open now for the appellants to contest the judgment, either directly or collaterally, they could so contest it only as to the amount thereof. The judgment itself has been satisfied by the acceptance of the bonds issued for that purpose. Taxes have been levied for the purpose of paying the bonds, as required by statute. The bonds have been negotiated, and are in the hands of innocent holders. The attack now is necessarily confined to the validity of the bonds. That these facts present great obstacles in the way of any relief to appellants, is quite manifest. Rankinv. City of Chariton, 160 Iowa 265; Edmundson v. Independent Sch.Dist., 98 Iowa 639; S.C. St. P.R. Co. v. County of Osceola,45 Iowa 168; Independent Dist. of Rock Rapids v. Society, 98 Iowa 581. In view, however, of our conclusion upon the defendants' plea of the statute of limitations, we shall confine decision at this point to that question.
The funding bonds were issued pursuant to Section 905, Chapter 12 of Title V, which provides as follows:
"Cities and towns may settle, adjust, renew or extend the legal indebtedness they may have, or any part thereof, in the sum of one thousand dollars or upwards, whether evidenced by bonds, warrants or judgments, and may fund or refund the same and issue coupon bonds therefor, but no bonds shall be issued under this section for any other purpose than is above, authorized."
Section 913 of the same chapter provides as follows:
"No action shall be brought questioning the legality of any of the bonds authorized by this chapter, waterworks bonds, gasworks bonds, or electric light or power plant bonds, from and after three months from the time the same are ordered issued by the proper authority."
Appellants contend that these sections of the statute are not applicable, because the indebtedness upon which the judgment *Page 1372
was entered, was not a "legal indebtedness." But that is the very question sought to be litigated. It is the very question which is barred from litigation, if the statute is construed to function at all. If the holder of the bond must prove the legality thereof, and of the judgment for which it was issued, before he can avail himself of the statute bar under Section 913, then the statute of limitation has no function to serve. If the bondholder affirmatively proves the legality of all prior procedure, he has no occasion to plead the statute of limitation. The very purpose of a statute of limitation is to cure imperfection and to give repose against litigation.
The manifest purpose of this statute is to facilitate, in the interest of the city, the negotiation of its bonds at low rates of interest. The time provided is short, and is yet long enough. The challenge to the validity of bonds which are about to be offered to innocent purchasers, should be made promptly, if it is to be made at all. Negotiable paper which is to be floated at low rates of interest must needs carry a good title and good security, and must be virtually incontestable. This is the prime inducement to a low rate of interest. A lawsuit is not salable at par, nor at a low rate of interest. A contestable bond is not salable, unless it be in the marts of salvage and wreckage. These are the considerations which induced the statutory limitation here under consideration. The procedure antecedent to the issue of a municipal bond receives statutory publicity at its successive stages. Its deliberation is more or less dilatory. When it is done, the illegalities, if any, are readily discoverable. The final statutory act is to hold open the right of challenge for a period of three months, and at the expiration of that time to close such door. This is salutary in its purpose, and operates, on the whole, to the advantage of the city and of its taxpayers. The suit at bar was not brought within the statutory time. We hold that it is barred by Section 913.
The decree of the district court is, accordingly, affirmed. —Affirmed.
FAVILLE, C.J., and ARTHUR and ALBERT, JJ., concur.
*Page 1 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430022/ | Sometime in the year 1920, one J.B. Mitchell was appointed guardian of his granddaughter, Helen E. Jewell, a minor. The corpus of his ward's estate consisted of an interest in a tract of land, which was ordered sold by the court, 1. GUARDIAN and the total purchase price of $11,500 was put AND WARD: into a mortgage and note for that amount, dated authority: June 22, 1920, and payable to said Mitchell, as authority guardian. This estate consisted of no other to borrow: property, either real or personal. This guardian scope. borrowed from the People's Trust Savings Bank $600 at one time, and shortly thereafter, an application was made to the court, and an order made in relation thereto. The material part of this order, which is dated December 9, 1922, is as follows:
"It is hereby ordered that the guardian, J.B. Mitchell, give an additional bond in the sum of $20,000, and he is hereby authorized to sell said mortgage of $11,500, and that he is authorized to make the best sale possible and investigation possible; but he is hereby authorized to care for, protect, maintain the said Helen E. Jewell, educate and school her, from the money left her by her father, Plinney Jewell, and make the best deal he can, and sell said first mortgage of $11,500, and repay any sums procured for her support and maintenance."
Subsequent to the making of this order, Mitchell assigned the mortgage and note of $11,500 to the People's Trust Savings Bank, as collateral security, and from time to time continued, as guardian, to borrow money from the bank, the total sum borrowed being about $2,400. He took up the various notes given by him from time to time for the amounts borrowed from the bank, and included the same with the then new interest in a note for $2,479.31. Later, this guardian having made no reports or inventory to the court, and being called upon to account, filed his resignation as such guardian, and L.M. Fansher was substituted as such guardian. In the settlement made between the two guardians, to which this bank was not a party, it was found by the court, after trial, that the original guardian was indebted to the estate, after all due credits had been *Page 451
given him, in the sum of $1,646.50 (the date of this settlement being October 1, 1925), plus the $11,500, making a total due the ward of $13,146.50, and Mitchell was ordered to account to the present guardian for $13,290.15. Of said sum, $11,500 was in the form of a mortgage securing a note, and a balance of $1,790.15 was ordered paid in money to the new guardian, who was found to be entitled to the possession of the aforesaid note and mortgage. The new guardian was also directed to bring action against the bank, to recover possession of the note and mortgage, and also to sue on the bond of Mitchell, as guardian. The new guardian proceeded to bring action against the People's Trust Savings Bank for the possession of said mortgage, together with $575, one year's interest. The bank defended on numerous grounds, among which they justify their possession and right to hold said mortgage and note, by reason of an order of court herein set out.
Another ground of defense is that the money borrowed from the bank was used for the benefit of the ward, by way of support, maintenance, and education, and therefore that the ward's estate received the benefit thereof, and thus they are justified in holding said mortgage and note until they are repaid. The matter was tried in equity, resulting in a decree finding that there was due the bank from said estate the sum of $2,109.70. The bank was permitted to retain possession of the mortgage and note, and judgment was rendered against the present guardian for such amount, with directions to him to pay the aforesaid amount to the bank; and upon such payment the bank was ordered to turn over, within four months from the date of the decree, the aforesaid mortgage and note to the present guardian; and on failure so to do, the defendant was given the right to foreclose and sell said collateral, as a pledge, to make the amount of its judgment, interest, and costs. The appellant in his brief and argument says:
"Two ultimate questions are presented in this appeal: First, was there an order of court authorizing the guardian Mitchell to borrow money and pledge the note and mortgage of his ward therefor? Second, if there was such an order, has the defendant shown that the money borrowed by the guardian went into the estate of the ward and enhanced and augmented *Page 452
it, and therefore make the estate of the ward equitably liable for such borrowed money?"
To these propositions we will now give attention.
Section 12581, Code of 1924, provides:
"Guardians of the property of minors * * * may * * * lease lands, loan money, and in all other respects manage their affairs, under proper orders of the court or a judge thereof."
It is apparent from this section of the statute that whatever powers the guardian wishes to exercise he must do so under the order of the court or a judge thereof. It is the claim of the appellee herein that the hypothecation of this mortgage and note with it was authorized by the order of the court hereinbefore set out. If we turn now to the order of the court, it will be noted that this order provides, first, that the guardian shall put up an additional bond in the sum of $20,000; second, he is authorized to sell a mortgage of $11,500; and the order further proceeds:
"But he is hereby authorized to care for, protect, maintain said Helen E. Jewell, educate and school her, from the money left her by her father, Plinney Jewell, and make the best deal he can, and sell said mortgage of $11,500, and repay any sums procured for her support and maintenance."
What does this quoted part of the order mean?
The duty of caring for, protecting, and maintaining the said Helen E. Jewell is a part of the duties of a guardian; but in carrying out these duties, he needs no order, as the same is inherent in the relationship existing between them. The order also provided that he shall "educate and school her" from the money left her by her father. We do not conceive that this is an open order to the guardian to expend any and all amounts of money that he may see fit, for the purposes specified. The part of the order that deserves most serious consideration is the part that provides that the guardian "shall repay any sums procured for her support and maintenance," and a correct interpretation of this clause is a matter of serious dispute between the parties. As heretofore stated, before this order was signed, the guardian had borrowed $600 from this bank, and the contention of the appellant is that this part of the order was only intended as a ratification by the court of the borrowing of this $600, and an order to repay the same; while appellee contends *Page 453
that the word "procured," as used herein, was intended to convey the idea that he was not only to repay the sums that he had already borrowed, but such sums as he might borrow in the future for her support and maintenance. In the application on which this order was made, it was recited that the mortgage and note above referred to were the total assets of the estate of Helen E. Jewell, and that the income therefrom was not sufficient to support, maintain, and educate her. In the light of these facts and the surrounding circumstances, we are disposed to hold that the intent and purpose of this order were to cover not only money previously borrowed, but that which might be borrowed in the future for the purposes specified. We more readily reach this conclusion because, in the proceedings in which the settlement was made by the court between the two guardians, the money thus borrowed by the guardian was taken into consideration in making said settlement, and charged against the then guardian. But this in no way disposes of the question before us, and that is, was there any authority, under the law or under the order of the court, for Mitchell, the guardian, to hypothecate this mortgage and note as collateral and to assign the same by written assignment which has since been made of record? We held, inMcMannis v. Rice, 48 Iowa 361, that an order to an administrator to sell property would not justify his mortgaging the same. See, also, 28 Corpus Juris 1134-1135; O'Herron v. Gray, 168 Mass. 573
(47 N.E. 429). The consensus of opinion seems to be that simple authority from the court to a guardian to borrow money does not warrant the guardian in hypothecating securities for the money thus borrowed. The order in the instant case, in our opinion, was not broad enough to warrant the hypothecation of these securities, and the guardian's action in so doing has never been approved by the court or a judge thereof. It logically follows, therefore, that Mitchell, in hypothecating these securities, acted without authority, and his action in so doing must be held to be voidable.
We have, however, a settled rule in this state that, where a guardian exceeds his authority and borrows money and uses that money for the use and benefit of the estate, even though he *Page 454
2. GUARDIAN has funds in the estate itself, such estate is AND WARD: liable for the amount actually received by it. authority: Such was our pronouncement in In re Estate of
borrowing Manning, 134 Iowa 165, based on our previous and decisions of Dunne v. Deery, 40 Iowa 251; Deery
hypothe- v. Hamilton, 41 Iowa 16; Simpson v. Snyder, 54 cating Iowa 557; Iowa Loan Tr. Co. v. Holderbaum, 86 without Iowa 1. In the Manning case we said: authority.
"If the money received from the bank was in fact used for the benefit of the estate, any mismanagement of the estate's affairs could not defeat the bank's right to recover, unless it was a party to such mismanagement."
Appellant in his brief and argument recognizes the existence of the rule, but insists that the evidence in the case does not show that the loans made by appellee to the guardian went to the use and benefit of the ward's estate. This is a fact question, and the lower court held against this contention of appellant's. It is shown that, owing to the condition of the money market at the time in question, the mortgage could not have been sold without a sacrifice of at least $3,500 of the principal. The bank advised the guardian that he had better not sell the mortgage, but borrow, to meet the needs of the ward, until there were better prospects of realizing on the mortgage. We think that this advice was timely, and shows good faith on the part of the bank. No evidence in the case was directed specifically to this question, but the plaintiff did introduce in evidence the report of the guardian Mitchell, together with his application for discharge, and among other things it is there recited:
"That the guardian had borrowed, from time to time, a sum from the bank, appellee, and the funds so secured were expended for the care, keep, clothing, schooling, and incidental expenses of the said ward, and because of said guardianship and expenses thereof, to the best of his knowledge and belief."
This testimony is not denied, and to our minds this is sufficient to carry a finding made by the district court that the money loaned by the defendant bank to said guardian was used for the support and maintenance of the ward; and further, that the ward received the benefit of the money loaned by the defendant bank, to the full amount thereof. The district court entered judgment against the present guardian, appellant herein, *Page 455
for the amount found to be due the bank, in the sum of $2,109.70, which included the interest up to the date of the entry of the judgment, together with an order that the present guardian pay the same. So far, the action of the court is approved. The court, however, in addition in its decree, provided that the bank should continue to hold the mortgage and note in question until the judgment above specified was paid. So far as we are able to learn from the record, the only assets in the hands of the present guardian belonging to his ward's estate are the mortgage and note in controversy. The district court ordered that the guardian should pay this within four months from the date of the decree. If this be all of the assets as guardian, it is apparent that the judgment so rendered must be paid from this mortgage and note, either by sale or hypothecation thereof, under order of court, so long as the same remain in the hands of the bank. We are unable to see just how this guardian can raise the funds necessary to pay this judgment, without the possession of the mortgage and note. We have held that hypothecation of the same to the bank was void in the first instance, and we therefore are of the opinion that so much of the order of the district court as permitted the bank to retain the possession of the mortgage and note is erroneous; and the decree so entered will be modified to the extent that the mortgage and note are directed to be returned to the guardian, and in view of the fact that the same have been assigned of record, that the bank reassign the same to the guardian.
It is further ordered that, on receipt of said mortgage and note, the said guardian shall make application to the district court for authority to either sell or hypothecate said mortgage and note, and that, from the proceeds thereof or any other money that may come into his hands, within 60 days from the date of the filing of this opinion he pay to the said bank the aforesaid amount, with 6 per cent interest thereon from the 6th day of May, 1926, and report same to the district court of Mahaska County, Iowa, which court shall have jurisdiction to enforce these orders and all future proceedings with reference thereto.
If it should be contended that the decree entered in this case below was an approval of the hypothecation of this note and mortgage, on the theory that the court has a right to approve *Page 456
3. GUARDIAN an act which it had the right to authorize in AND WARD: the first instance, and if, therefore, it be jurisdic- said that the hypothecation hereof was in fact tion: approved by the court subsequent to delivery to approval of the bank, yet we think that the district court unauthorized did not thereby surrender its jurisdiction over act: effect. the hypothecated property, and that the disposal thereof by the bank must be made under the direction and subject to the approval of the court. It is for this reason that we make the above orders. — Modified and affirmed.
EVANS, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430023/ | In August of 1926, two engines belonging to the Chicago, Milwaukee St. Paul Railway Company were out of commission, and stored on a track in said company's yards at Ottumwa, Iowa. Certain of the fittings on these engines had been removed by someone, without authority of said company, and had been piled on the right of way of the company in said yards, where the weeds had grown up between the tracks. A police officer in the employ of the railway company secreted himself in said yards, near where the fittings had been piled. About midnight on the night of August 4, 1926, he noticed two men on the railroad right of way, at a private road crossing about 150 feet away. They came along the track as far as the storage track on which the engines were located, and then followed the course of said track. The officer crawled through the cars on said track, and heard a remark by one of the men, "We are not far enough." He testified that, at or about that time, he heard a noise which sounded like the clanking of metal. The officer flashed a flash light, and located the two appellants near one of the piles of metal. He was then about twenty feet from them. He ordered them to hold up their hands, and one of them, who was carrying a gunny sack at the time, dropped it, in obeying the order. The officer immediately arrested the appellants, and took them to jail. An automobile that they admit having driven that night was located near the crossing of the private road referred to. The appellants were witnesses in their own behalf, and testified as to their whereabouts on the evening in question, explaining that they had been to a dance; that one of them was the owner of coon dogs; that they had taken two young coon dogs, to train them that night, after the dance; and that they heard the baying of the dogs, and were going down the right of way of the railroad track in pursuit of the dogs. They explained that they were carrying the gunny sack, expecting to capture a coon which the dogs had treed. There was evidence tending to show that there were no trees in the vicinity of the right of way near where the appellants were arrested, and the *Page 346
officer who arrested them testified that he did not hear the baying of hounds. We have not attempted to review in detail the evidence in the case, but only to state sufficient thereof for the purposes of the legal questions involved.
I. The court instructed the jury as follows:
"If you find from the evidence that any part of the alleged stolen property was in the possession and control of the defendants at any time prior to the arrest of the defendants, then such possession would be what is known in the law as recent possession of stolen property, and such possession, if unexplained, would constitute sufficient prima-facie evidence to warrant the jury in finding the defendants guilty of the larceny of the property."
No other instruction was given that pertained to said matter. Error is predicated upon the giving of this instruction. The particular ground of challenge is that there was no evidence in the case from which the jury could find that the appellants ever had possession of the property in controversy, and hence the instruction had no application to the facts of the case, and was prejudicial to the appellants. It is to be noticed that the court in no way attempted to define or explain to the jury what would constitute possession of stolen property. The mere presence of the appellants at or about the place on the right of way of the railway company where stolen property was, or where it was secreted, is not, of itself, sufficient to prove that the appellants were in the possession of said stolen property at the time. The general rule in cases where recent possession of stolen property by a defendant is offered in evidence of the larceny is that the possession not only must be recent, "but it must be personal, exclusive, and with a distinct implied or express assertion of ownership." Underhill's Criminal Evidence (3d Ed.), Section 469; State v. Keller, 191 Iowa 740; State v. Ireland,192 Iowa 489; Van Straaten v. People, 26 Colo. 184 (56 P. 905);People v. Hurley, 60 Cal. 74; People v. Wilson, 151 N.Y. 403
(45 N.E. 862); State v. Lackland, 136 Mo. 26 (37 S.W. 812);Funderburg v. State (Tex. Cr.), 34 S.W. 613;Clark v. State, 30 Tex. App. 402[30 Tex. Crim. 402][30 Tex. Crim. 402] (17 S.W. 942); People v. Horton, 7 Cal. App. 34
(93 P. 382); State v. Fogle, 211 Mo. App. 18 (244 S.W. 105); State v. Goldfeder (Mo.), 242 S.W. 403.
Under the evidence in this case, there was no such proof of *Page 347
possession of the stolen property as made the giving of this instruction applicable to the facts of the case. In any event, it left it for the jury to determine what would constitute possession of stolen property, without any direction or instruction by the court in relation thereto. The court erred in giving the instruction in question, under the facts as shown by the record.
II. It is contended that the court erred in refusing to submit certain special interrogatories that were requested by the appellants. There was no error in refusing the interrogatories in the form in which they were asked.
III. It is urged that the court erred in not directing a verdict in behalf of the appellants on the ground of insufficiency of the evidence. In view of the fact that the case must be remanded, and may be tried again, with the possibility of different evidence, we reserve any pronouncement on the question of the alleged error of the court in failing to direct a verdict.
For the error pointed out, the judgment of the district court must be, and it is, — Reversed.
STEVENS, C.J., and EVANS, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430024/ | This is an action by the bank for foreclosure of a mortgage given by Pearl May Bolton and L.H. Bolton, her husband, covering, in the language of the mortgage:
"Our undivided interest in the fractional North Half of Northeast Quarter (N 1/2 NE 1/4) and the South Half of Northeast Quarter (S 1/2 NE 1/4) of Section Two (2), Township seventy-four (74), Range forty-one (41), and the East half of Southeast Quarter (E 1/2 S.E. 1/4) of Section Two (2), Township seventy-four (74), Range Forty-one (41), Pottawattamie County, Iowa."
The note secured a mortgage and was in the sum of $2,500, with interest at six per cent per annum, payable semi-annually, and due November 1, 1932, and contained an acceleration clause. Not only was the principal in default, but interest due May 1, 1933, was in default in the amount of $89.03, and $3.00 that had been expended for continuance of abstract. There were several parties made defendants in the case.
All the defendants, other than Pearl May Bolton and Mary E. Kerney, alleged in their answer that the mortgage did not constitute a lien upon the premises set out in the petition for the reason that title vested in the widow of Perry Kerney during her lifetime and that the makers had nothing to mortgage. Pearl May Bolton filed a separate answer alleging that she did not own the property in question at the time of making the mortgage, but admitted she signed the alleged note and mortgage, and that the same are now due. *Page 687
The bank replying to separate answer of Pearl May Bolton, alleged that she had a title in said real estate at the time she executed the note and mortgage, and that her interest in said real estate was such as to be the subject of a mortgage; and alleged that by her previous acts and conduct Pearl May Bolton was estopped from denying that she had any interest in the property at the time she made the mortgage.
In a reply to the separate answer of the other defendants, the bank denied that title was vested in the widow of Perry Kerney, and alleged in lieu thereof she had the life estate in said property with remainder to the answering defendants, except for the bank's lien on the undivided one-third interest of Pearl May Bolton in said estate.
In an amendment to its reply to the separate answer of Pearl May Bolton, it denied specifically her allegations "that at the time said mortgage was filed she did not, in truth and in fact, own the property described therein."
Subsequently an amendment to the petition was filed making Mary E. Kerney a party defendant. Mary E. Kerney filed answer admitting she was the widow of Perry Kerney, and stating she was bequeathed all of the property of Perry Kerney for her use and benefit during the term of her natural life; that during the term of her natural life she was the sole beneficiary under the will, and that her possession and use and right to sell and dispose of said property could not be interfered with during the term of her life; and alleged that the bank could not enforce the rights of its mortgage during her lifetime so as to interfere with the bequest of the property to her.
Reply to this defendant was made by the bank, admitting Mary E. Kerney was bequeathed all the property of which Perry Kerney died seized "for her use and benefit for and during the term of her natural life"; alleged that its right to enforce its mortgage would not interfere with defendant's use and enjoyment of the property bequeathed to her for her use and benefit for and during the term of her natural life.
It appears from the record in this case that Mary E. Kerney was the widow of Perry Kerney, who owned the land in controversy during his lifetime. Kerney died leaving a will, which reads as follows:
"It is my will that after my death my executrix hereinafter *Page 688
appointed shall, as soon as possible, use such portion of my estate as may be necessary therefor for the payment of my just debts and expenses of my last sickness and burial.
"That subject to the payments directed in paragraph one herein, I will, devise and bequeath to my beloved wife, Mary E. Kerney, all of my property of every kind and character for her use and benefit for and during the term of her natural life.
"Upon the death of my beloved wife, Mary E. Kerney, I will, devise and bequeath all of my estate at that time remaining as follows, to wit:
"To my beloved granddaughter, Cecil Nellie Kerney, I give, devise and bequeath the sum of $3,000 to be paid to her out of my estate then remaining and I direct that my Executrix in addition to the above, use such portion of my estate as shall be required to give said Cecil Nellie Kerney a good education.
"The balance of my estate remaining at the death of my wife after the payment of the aforesaid sum to my granddaughter, as above stated, I give, devise and bequeath to my three children, N.W. Kerney of Lincoln, Nebr., Pearl May Bolton, wife of L.H. Bolton of Sioux City, Iowa; and Lela Maude Carter, wife of C.T. Carter of Treynor, Iowa, share and share alike, excepting that any moneys advanced by me prior to my death to any of said children, or any notes signed by me for any of said children upon which my estate may be liable, shall be considered in said division and charged against the share of such child.
"It is my further will and I hereby appoint my beloved wife, Mary E. Kerney, as executrix of this my last will and testament, and direct that letters be issued to her as such by any court probating this will, without bond."
This will was dated April 6, 1914, and Perry Kerney must have died shortly after this, because his will was probated and letters issued May 4, 1914, and Mary E. Kerney was appointed executrix. The defendant Pearl May Bolton was a daughter of Perry Kerney, and the wife of L.H. Bolton, who had signed the mortgage with his wife.
It was admitted in court that if Cecil Nellie Kerney, a granddaughter named in the will of Perry Kerney, were present at the trial she would testify that no part of the legacy of $3,000 provided for her in the will, had been paid. It was also shown *Page 689
in the record that Cecil Nellie Kerney is now Cecil Nellie Green.
It appears further in the record that two judgments had been obtained by Pauline Flammant against L.H. and Pearl May Bolton, amounting to $1,464, and costs of $65, and that from the proceeds of the mortgage in suit these judgments had been satisfied, and that the mortgage was made in part for the purpose of paying these judgments; at somewhat of a discount. It also shows that the mortgage of plaintiff was duly recorded.
The cause being submitted to the court, the court rendered judgment for plaintiff and against Pearl May Bolton in the sum of $3,144.89, with interest at 8% per annum, and the further sum of $71.44 attorney's fees, and costs of the suit, and that execution issue therefor. It was further ordered that the foreclosure of plaintiff's mortgage be denied and that the action be dismissed as to all other defendants, to all of which the plaintiff duly excepted. An appeal was taken to this court by the plaintiff.
Section 10042 of the Code reads as follows:
"Every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used."
This section originally appeared in the Code of 1851, and has in this form appeared in every Code since. Pearl May Bolton had an interest given her by the will, and that interest passed under the mortgage to the plaintiff bank. We have had occasion to construe this statute many times. The latest case, Bahls v. Dean,222 Iowa 1291, 270 N.W. 861, was decided in January, 1937, and no petition for rehearing has been filed.
This holding is also supported by McDonald v. Bank, 123 Iowa 413,98 N.W. 1025, 1026; Bisby v. Walker, 185 Iowa 743,169 N.W. 467, 171 N.W. 152; Rice v. Kelso, 57 Iowa 115, 7 N.W. 3, 10 N.W. 335; Hintz v. Hintz, 176 Iowa 392, 393, 157 N.W. 878; Oxford Sav. Bank v. Hall, 203 Iowa 320, 211 N.W. 389; Noonan v. State Bank,211 Iowa 401, 233 N.W. 487; McNair v. Sockriter, 199 Iowa 1176,201 N.W. 102.
In the McDonald case the court said at page 416:
"`An interest' in land is the legal concern of a person in the thing or property, or in the right to some of the benefits or uses from which the property is inseparable. 4 Century Dictionary *Page 690
3142. It may be conceded for the purposes of this case that the plaintiffs, at the time of making the quitclaim deed, were contingent remaindermen, having only a possibility of ever coming into possession; but, however remote and uncertain this remainder may have been, there was still a possibility, coupled with an interest, which might at some future time ripen into an estate. 1 Tiffany's Real Property, 306."
Speaking of a contingency, the opinion further says: "True, this contingency might never happen, but there was a possibility that it might; and this possibility created, in our judgment, a contingent interest or concern in the land which existed at the time of the conveyance."
In the Noonan case it was held that the interest of a bankrupt as a real estate remainderman, whether the interest be vested or contingent, passed to the trustee in bankruptcy.
If the doctrine of these cases is the law, and it has been held to be the law, we fail to see why, when Pearl May Bolton gave a mortgage to the bank, it did not carry all her interest, vested or contingent, and make a lien against that interest in favor of the bank, and why that lien cannot be protected in equity in a foreclosure proceeding, or why it cannot be foreclosed. It appears to us to be without question.
The district court was right in rendering judgment on the note against Pearl May Bolton, but we think it was wrong in denying foreclosure of the mortgage as against her interest in the land. True, she could not take the land, or claim any present right in it, until the death of Mary E. Kerney.
The will of the deceased also contained the clause giving to Cecil Nellie Kerney $3,000, to be paid out of his estate then remaining after the death of his wife, and of course, this interest should be protected in the decree of foreclosure.
So it is our opinion that the case must be reversed and should be remanded to the district court of Pottawattamie county for further proceedings, and in these proceedings the court should enter a decree foreclosing the mortgage, but subject to the rights of the life tenancy of Mary E. Kerney, and subject to the right to have paid out of the estate the bequest to Cecil Nellie Kerney, now Cecil Nellie Green, and then out of whatever is left in the balance of the estate, at the decease of Mary E. Kerney, the portion which was willed to Pearl May *Page 691
Bolton should be subjected to the payment of plaintiff's mortgage, but with the qualifications or limitations hereinbefore suggested, and that execution be issued on entry of decree for sale of the mortgaged premises.
Therefore, in accordance with our opinion in this matter, the decision of the lower court is hereby reversed and remanded for the purpose of entering a decree in accordance with this opinion. — Reversed and remanded with instructions.
RICHARDS, C.J., and KINTZINGER, ANDERSON, DONEGAN, and SAGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430034/ | This is a probate proceeding wherein certain children of Charles C. Shivvers, deceased, petitioned the court for the appointment of an administrator of his estate, alleging that said estate had not been duly administered according to law and that they were entitled to have an administrator appointed to legally settle such estate. Ralph W. Shivvers, administrator of the estate of O.W. Shivvers, filed a resistance to said petition claiming that the estate of Charles C. Shivvers had been duly opened in 1919, administered, and closed in 1924, and that no further administration was needed or proper. Following notice and hearing, the court dismissed the petition and this appeal followed.
I. Practically all of the evidence consists of the probate files, docket and journal entries, in the estate. We will set out a part of such evidence in order to present the issues involved in the controversy. Charles C. Shivvers, a farmer and resident of Marion county, died intestate in 1919. He left surviving him a widow, Lydia Shivvers, five children, to wit, Owen, age eight, Elenora, age six, Mark, age two, Charles, age twenty-one months, and an unborn son later named Gerald.
The widow, Lydia Shivvers, on November 22, 1919 petitioned that she, as widow, and O.W. Shivvers, father of decedent, be appointed administrators of the estate. The clerk of the district court thereupon made the appointment as prayed, upon the filing of a bond in the sum of $50,000. The clerk's order of such appointment and bond requirement was endorsed upon her petition. Such bond was duly filed on November 22, 1919, and was approved by such clerk on the same date. As a part of said bond there was an oath of said administrators, said oath being subscribed and sworn to on November 22, 1919. On the same date the clerk issued the letters of administration to Lydia Shivvers. The estate was represented by the firm of Vander Ploeg Johnson, attorneys. This firm, during the time the estate was open, signed various instruments in the estate proceedings as attorneys for the administrators. On the 25th of November, *Page 96
1919, an administrators' notice signed by Lydia Shivvers and O.W. Shivvers was given pursuant to order, by posting at four public places in Marion county, one of which was at the bulletin board at the courthouse in Knoxville, Iowa. On November 25, 1919, a statement of heirs and inventory was made by Lydia Shivvers and O.W. Shivvers and filed in the clerk's office. The bond, letters of administration, and the inventory were recorded in the clerk's journal and the book and page set forth therein. Various applications for orders were made in the estate — one to carry out a contract to sell certain real estate in which Charles C. Shivvers was grantor was made by Lydia Shivvers and O.W. Shivvers. This was approved by Honorable Lorin M. Hays, district judge. On January 8, 1923, a final report was filed in said estate, reciting that same was made by Lydia Shivvers and O.W. Shivvers and signed by the attorneys for the estate. This final report was verified by O.W. Shivvers. This report recites:
"Come now Lydia Shivvers and O.W. Shivvers and show to the court that they are the duly appointed, qualified and acting administrators of the above named estate; that more than one year has elapsed since the date of their appointment and the giving of notice thereof; that all of the personal assets of the estate have been collected, all debts and claims paid, and the residue of the estate turned over to the widow and the guardian of the children in proportion to their respective interests in the property. The following being a true and correct statement of all money received and disbursed by them:"
Attached to said final report was the receipt of Lydia Shivvers as follows:
"Received of Lydia and O.W. Shivvers, administrators of the estate of C.C. Shivvers, one third of the cash and other personal property in the hands of the administrators of the estate as shown by their final report, and I hereby consent to the discharge of said administrators and the approval of said final report without further notice to me. (Signed) Lydia Shivvers." *Page 97
Also there was attached thereto the receipt of W.F. Langebartels, guardian of the minor heirs of C.C. Shivvers, as follows:
"Received of Lydia Shivvers and O.W. Shivvers, administrators of the estate of C.C. Shivvers, two thirds of the cash and personal property in the hands of said administrators as shown by their final report, and I hereby consent to the discharge of said administrators without further notice to me. (Signed) W.F. Langebartels."
Such final report sets out in detail all receipts and disbursements of said estate. The receipts so shown totaled $23,467.05 and the disbursements $20,096.78, leaving a balance of $3370.27, of which balance one third, or $1123.42, was paid to Lydia Shivvers, and two thirds, or $2246.85, to the guardian of the children. Said final report further recited that there had been turned over to said widow and the guardian of the children certain notes, bonds, and securities amounting to approximately $8000, said items being shown in detail.
Also, as a part of said final report there were numerous checks which had been issued by said estate to pay claims, expenses, etc., some being signed by both administrators, some as estate checks, and others by either Lydia Shivvers or O.W. Shivvers.
Attached to said final report and included in the probate files therein we find an instrument entitled ORDER APPROVING FINAL REPORT AND DISCHARGE OF _________ which reads:
"Now on this 30th day of September, 1924, the same being one of the days of the regular September term of 1924, of the district court of Iowa, in and for Marion county, this matter came on for hearing on the final report of O.W. Shivvers, administrator of the estate of Charles C. Shivvers, deceased, and the court after inspecting said report and after hearing the report of the referee in probate and being fully advised in the premises, finds that due legal and timely notice of this matter has been given to all parties in interest, and that no objections have been filed to said report, and that proper distribution has been made, and that all costs and claims against *Page 98
said estate have been paid, and that said final report should be approved in each and every particular.
"IT IS THEREFORE ORDERED, adjudged, and decreed by the court that the final report of said O.W. Shivvers, administrator, be and the same is hereby fully approved and he is discharged as such administrator and the sureties on his bond are released and exonerated."
It will be noted that the above order of September 30, 1924 approved the final report of O.W. Shivvers and discharged him as administrator and discharged and exonerated the sureties on his bond. This was the bond executed by him and Lydia Shivvers on November 22, 1919, and in which O.L. Wright and O.P. Wright were named as sureties.
II. The errors urged by appellants are four in number. They are set forth in their brief and are as follows:
"I. In concluding that O.W. Shivvers was appointed administrator and was duly discharged and the estate closed. II. In concluding that Lydia Shivvers was duly discharged as administratrix and the estate closed. III. In concluding that the petitioners were guilty of laches. IV. In failing to grant letters of administration to the petitioners as prayed."
The same questions were raised by appellants in their pleadings. Briefly, they claim that Lydia Shivvers was appointed administratrix of the Charles C. Shivvers estate and that while O.W. Shivvers purported to act as administrator with Lydia Shivvers, still he was never legally appointed and so acted without authority; also, that Lydia Shivvers was never legally discharged as administratrix and that the purported order of court of September 30, 1924 discharging said O.W. Shivvers as administrator was of no force or effect; also, that, as the estate had never been legally closed and the administratrix, Lydia Shivvers, was deceased, and that O.W. Shivvers was deceased, and his estate was being administered, it was necessary to have another administrator appointed to take the place of Lydia Shivvers and as such to file a claim against the O.W. Shivvers estate to recover for property taken by O.W. Shivvers from the Charles C. Shivvers estate. *Page 99
The trial court held that the estate of Charles C. Shivvers was properly opened in that the widow, Lydia Shivvers, petitioned pursuant to statute (now section 632.1, Code of 1946) that she and O.W. Shivvers be appointed administrators and that such an order duly issued and they duly qualified by oath and bond, but that the clerk in issuing letters testamentary failed to include therein the name of O.W. Shivvers and that this was a clerical error on the part of the clerk. Also that throughout the estate proceedings both administrators acted in the settlement of the estate and that in any event O.W. Shivvers was a de facto administrator and that his acts and proceedings as such were binding on all the parties interested in the estate.
The trial court further held that while the order of September 30, 1924, closing the estate and discharging O.W. Shivvers, as administrator, and discharging and releasing the sureties on his bond was not signed by the court, the provisions of section 604.38, Code of 1946 (section 10798, Code of 1939) were not mandatory but directory. The trial court held that the estate was fully and legally settled according to law; that distribution had been made to the widow and the guardian of the minors; that the estate was closed, the administrators discharged and their bond exonerated.
The trial court held that the petition of appellants to have the petitioners appointed administrators should be dismissed and denied.
III. As a part of the same ruling the trial court stated that other issues raised need not be passed upon, but expressed the opinion that more than twenty years had elapsed since the estate was probated and closed and that the youngest applicant is now twenty-six years of age and that more than five years had elapsed since he attained his majority and that since no complaint had been made the doctrine of laches and that of estoppel would apply to prevent the petitioners from disturbing the settlement of this particular estate.
We have gone over the record and are of the opinion that it fully supports the finding of the trial court. *Page 100
[1] IV. The proceedings are in probate. On appeal such are not triable here de novo. It is here triable on errors. The finding of the trial court is binding if based upon sufficient competent evidence. In re Will of Fish, 220 Iowa 1247, 264 N.W. 123; In re Estate of Smith, 223 Iowa 172, 271 N.W. 888; In re Estate of Johnston, 198 Iowa 1372, 201 N.W. 72; Caldwell v. Estate of Caldwell, 54 Iowa 456, 6 N.W. 714; In re Estate of Haines,234 Iowa 396, 12 N.W.2d 812.
[2] Generally, irregularities in probate proceedings do not void them. Whiteley v. Mills, 239 Iowa 80, 29 N.W.2d 541: Soppe v. Soppe, 232 Iowa 1293, 8 N.W.2d 243; In re Estate of Carpenter, 232 Iowa 919, 5 N.W.2d 175; McLeary v. Doran. 79 Iowa 210, 44 N.W. 360.
V. The first claim urged by appellant is that the court erred in holding that O.W. Shivvers was appointed administrator or that he was duly discharged and the estate closed. Some of the record has hereinbefore been set forth. The estate of Charles C. Shivvers was opened in November 1919, about seventeen days following his death. His widow, Lydia, petitioned for letters of administration for herself and O.W. Shivvers. This was her right under the statute then existing (now section 633.39). Under the statute then existing (now section 632.1) the clerk ordered the appointment conditioned upon proper bond. This was given and approved. Lydia Shivvers and O.W. Shivvers subscribed to an oath as administrators. The clerk in issuing the letters omitted the name of O.W. Shivvers, naming Lydia Shivvers as administrator. Notice of appointment was given by both Lydia Shivvers and O.W. Shivvers. All these proceedings were noted as filings in the estate and were shown by the clerk's appearance docket.
[3] It is rather difficult to determine from the appellants' brief and argument whether their claim is that the acts of O.W. Shivvers in the settlement of the estate were made by him as a mere interloper, or whether such actions had any validity. The trial court held that the failure of the clerk to include in the letters issued to Lydia Shivvers the name of her coadministrator, O.W. Shivvers, was an error amounting at its very most to an irregularity and that at the very least O.W. Shivvers was *Page 101
administrator de facto. Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656; 25 C.J.S. 1010. We hold that the trial court ruled properly in respect to such matter. Chicago, B. Q.R. Co. v. Gould,64 Iowa 343, 20 N.W. 464. See also cases cited dealing with the matter of irregularities in probate proceedings. In re Estate of Price, 230 Iowa 1228, 1236, 300 N.W. 542, 546, was a probate action to set aside an order of the court admitting a will to probate claiming that such order was void because of an insufficient notice, arguing that the court was without jurisdiction. The trial court sustained the motion and on appeal there was a reversal. In so ruling this court said:
"For us now to say that because of a technicality in the publication of the notice of hearing on preliminary probate of the will, the administrator, who was solemnly appointed by the court and who strictly complied with all statutory rules in reference to giving notice of his appointment, shall now be considered an interloper, acting without authority at the instigation of a court that had no jurisdiction, would seem to be unreasonable, harsh and difficult to explain or justify. * * * Substantial compliance was all that was necessary."
We think the record in the instant case is much stronger than that of the cited case. O.W. Shivvers acted throughout as administrator. He participated in all probate proceedings, joining with Lydia Shivvers in most if not all of such; signed checks in settlement of claims and charges. The only thing lacking was that his name did not appear as administrator in the letters of administration through no fault of his, simply by reason of an error or oversight of the clerk. Finally, he joined with Lydia Shivvers in making a final report. This final report, as made by him and Lydia Shivvers, was signed by Vander Ploeg
Johnson, attorneys for the administrators, and was verified by O.W. Shivvers as one of the administrators on March 23, 1921. This report was approved September 30, 1924, by order of court (heretofore set out). Such order approved such final report, the receipts, disbursements, payment of the respective shares to Lydia Shivvers and to the guardian of the minor children of the deceased and ordered the estate closed. *Page 102
[4] It is to be kept in mind that appellants were not asking to reopen the estate. They claim that the estate was never properly administered or closed and that it is still open and needs another administrator to carry on. In effect appellants claim that the order closing the estate was void; that the court lacked jurisdiction to make it. We cannot agree with appellants that the court did not have jurisdiction to order the estate closed or that such order was void and of no force and effect. This order was made over twenty-five years before appellants started the proceedings herein. Such final report was made by those who had been appointed to administer the estate; proper time for closing the estate had elapsed, the report contained the matters required — receipts, disbursements, and disposition of the balance on hand — cash and property. It likewise had attached thereto receipts from the widow, Lydia Shivvers, and the guardian of the minors.
[5] We hold that the order of September 30, 1924 was valid and binding until set aside by proper proceedings. This court has held in many cases that the final report of a fiduciary, such as an executor, which has been approved and the executor discharged will be set aside only upon a clear and satisfactory showing of fraud, mistake or other equitable grounds. Becker v. Becker Bros., 202 Iowa 7, 209 N.W. 447; Patterson v. Bell, 25 Iowa 149; Read v. Howe, 39 Iowa 553; Tucker v. Stewart, 121 Iowa 714, 97 N.W. 148; In re Estate of Douglas, 140 Iowa 603, 117 N.W. 982.
[6] While the order of September 1924 approving the final report and closing the estate did not in terms name Lydia Shivvers, still it was a report made for her and in her behalf and we think that in ordering the estate closed and in discharging the bond, the order was effective and final and had the effect of discharging Lydia Shivvers and O.W. Shivvers.
[7] In this estate Lydia Shivvers and O.W. Shivvers were acting together to settle the Charles C. Shivvers estate. In so doing each one would be acting in behalf of and in conjunction with the other. The matter of their right to act could hardly be questioned. The probate court had full and complete jurisdiction of them and the subject matter. Having accounted for *Page 103
the property of the deceased and made distribution, the estate was duly closed and the failure of the court to include the name of Lydia Shivvers, administrator, in the order of closing and discharge was an irregularity at the very most.
We hold that the estate was properly opened, administered and duly closed.
On the question as to the legal effect of one administrator acting for and on behalf of both see 21 Am. Jur., Executors and Administrators, section 751; State ex rel. Rucker v. Rucker, 59 Mo. 17; Ragland v. King's Admr., 37 Ala. 80.
We think that the order of the court of September 1924 declaring the Charles C. Shivvers estate duly administered and closed was an adjudication. All parties interested, the widow and children, were represented. No objection was made to the final report. Smith v. Russell, 223 Iowa 123, 272 N.W. 121; Cowins v. Tool, 36 Iowa 82; Kows v. Mowery, 57 Iowa 20, 10 N.W. 283; In re Estate of Nicholson, 230 Iowa 1191, 1209, 300 N.W. 332.
[8, 9] Appellants make no claim as to any fraud or mistake on the part of O.W. Shivvers; they say that there is property belonging to them which was taken by said O.W. Shivvers. Whatever claim appellants may have had arose prior to September 30, 1924. The youngest child of deceased attained its majority over seven years prior to the time the action was brought. In effect we think that appellants are seeking to file a claim against the estate of O.W. Shivvers. As almost twenty-five years have elapsed since the estate of Charles C. Shivvers was closed, we hold, as did the trial court, that appellants are barred by the doctrine of laches. This is an equitable doctrine and has for its basis a public policy. Laches relate to the delay in the assertion or prosecution of a claim working to the prejudice or disadvantage of another. In 30 C.J.S. 520, section 112, the doctrine of laches was discussed. It was defined, "Laches is such delay in enforcing one's rights as works disadvantage to another." See Thomas v. City of Cedar Falls, 223 Iowa 229, 272 N.W. 79. Therein it was held that equity will not assist those who have slept upon their rights and that such courts will discourage laches and delay in enforcing their rights, apart *Page 104
from any question of statutory limitation. See also Bankers Trust Co. v. Rood, 211 Iowa 289, 233 N.W. 794, 73 A.L.R. 1421; Wever v. Dakin, 5 Cir., Fla., 81 F.2d 831; Farr v. Hauenstein, 69 N.J. Eq. 740, 61 A. 147; Ryason v. Dunten, 164 Ind. 85, 73 N.E. 74; La Shells v. Hench, 98 Cal. App. 6, 276 P. 377; Jones v. McNabb,184 Okla. 9, 84 P.2d 429. Many cases dealing with the doctrine of laches and when same applies are collected in 24 Words and Phrases, pages 79-116. A terse statement of the rule was set forth in the case of Oxford v. Estes, 229 Ala. 606, 158 So. 534. "Laches" is a doctrine of equity based on a lack of diligence and good faith in invoking the court's jurisdiction. While not shown in the record, appellee states in argument that practically all of the participants of 1919 are deceased. Lydia Shivvers, O.W. Shivvers and Attorney Vander Ploeg are among those deceased. The District Judges Lorin M. Hays and J.H. Applegate (both of whom made orders in the estate) are deceased, and we think that it would be highly inequitable to permit appellants to pursue the course they are seeking. We hold that the trial court acted properly in denying the petition for the appointment of appellants as administrators.
[10] VI. Some complaint has been made by appellants that the probate records were not signed by the trial judge either at the time made or during the term. They cite the statute in force, being the present section 604.38, Code of 1946. Our court has held that the statute is directory only. Donnelly v. Smith,128 Iowa 257, 103 N.W. 776; State v. Hiatt, 231 Iowa 643,1 N.W.2d 736.
On the record we hold that the trial court did not err in denying appellant's petition to appoint an administrator to continue the administration of the Charles C. Shivvers estate. — Affirmed.
SMITH, C.J., and BLISS, HALE, GARFIELD, and WENNERSTRUM, JJ., concur.
OLIVER and MULRONEY, JJ., concur in result.
HAYS, J., takes no part. *Page 105 | 01-03-2023 | 07-05-2016 |
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https://www.courtlistener.com/api/rest/v3/opinions/3430073/ | The plaintiff was charged by information before the defendant, mayor of the city of Newton, with the crime of assault and battery, not in violation of a city ordinance, but in violation of the state law. The plaintiff was arrested, and brought before the mayor, and to the information entered a plea of not guilty. Before any testimony was taken, the plaintiff, in strict conformity with Section 13569 of the Code of 1927, filed a motion for change of venue, supported by affidavit, stating that he could not obtain justice before said mayor, which motion was overruled; and, over plaintiff's objection, the mayor proceeded with the trial, which, on July 28, 1927, resulted in a finding of guilty, as charged in the information, and a judgment against the defendant of a fine and the costs.
The plaintiff, on the 15th day of the following August, commenced this action in certiorari in the district court, to review the action of the defendant mayor in overruling his motion for change of venue. The defendant made due return to the writ, and filed a motion to quash or annul the writ, upon the grounds that the plaintiff is not entitled to the relief demanded, and that he had a plain, speedy, and adequate remedy by appeal, which motion was by the court sustained, and the plaintiff's action was dismissed, and judgment was rendered against the plaintiff for costs. From this action by the district court, the plaintiff has appealed.
It is not, and could not, be claimed that the mayor did not have jurisdiction to try the defendant for the crime of assault and battery in violation of the state law. See Section 5732 of the Code. The proceedings before a mayor, with reference to a *Page 205
criminal case brought under the state law, shall be in accordance with the law regulating similar proceedings before a justice of the peace. See Section 5735 of the Code. That the statutory law with reference to change of venue from one justice to another is applicable when the action is brought before a mayor, see Finchv. Marvin, 46 Iowa 384. It is provided by Section 13569 of the Code that, before any testimony is heard, a change of place of trial may be applied for by an affidavit filed, stating that the defendant cannot obtain justice before the justice of the peace (mayor). Section 13570 of the Code provides: "If such affidavit be filed, the change of place of trial must be allowed." (The italics are ours.) Under the provisions of the section just quoted, it was the mandatory duty of the mayor to sustain appellant's motion and grant the change of venue. It is not contended by the appellee, in argument, that his action in refusing the change of venue was correct. His contention is as made in his motion to annul, hereinbefore referred to, while the appellant's contention is that he has the right to relief by certiorari. It is provided by Section 12456 of the Code that a writ of certiorari may be granted in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy.
The mayor certainly had jurisdiction to determine the question raised by appellant's motion for change of venue. While the action of the mayor in overruling said motion was erroneous, did said erroneous action constitute an illegality within the meaning of Section 12456 of the Code? In Tiedt v. Carstensen, 61 Iowa 334, this court made the following pronouncement:
"In a word, if a tribunal, when determining matters before it which are within its jurisdiction, proceeds in a manner contrary to law, it acts illegally. But if a discretion is conferred upon the inferior tribunal, its exercise cannot be illegal."
In the instant case, no discretion was vested in the mayor; for, the appellant having complied with the statutory law, it was then that officer's mandatory duty, within the provisions of said law, to grant the change of venue. In Timonds v. Hunter, 169 Iowa 598, an action had been brought against the plaintiff therein for the appointment of a guardian for him. A jury was *Page 206
demanded, and denied by the court, and relief was asked in this court by certiorari; and we held that the action of the court in denying a jury constituted an illegality within the meaning of the then Section 4154 of the Code (now Section 12456). We there said:
"The line of demarcation between a merely erroneous conclusion and an illegality for which no other adequate remedy is provided cannot be very exactly defined. * * * It is generally true that illegality or excess of jurisdiction, if any, is necessarily preceded by an erroneous conclusion. If the erroneous conclusion results in an illegality, within the meaning of Section 4154 [now Section 12456], then there is an illegality, and not merely an erroneous conclusion. The right to a jury trial in this case was an explicit statutory right. The defendant was deprived of it as effectively as if the refusal had been arbitrary."
Likewise, in the instant case, the appellant was entitled to a change of venue, and was deprived of it as effectively as if the refusal had been arbitrary.
The appellant relies on Chicago, B. Q.R. Co. v. Castle,155 Iowa 124; Corn Belt Tel. Co. v. Superior Court of Oelwein,180 Iowa 985; Atchison, T. S.F.R. Co. v. Mershon, 181 Iowa 892;State ex rel. Erdahl v. District Court, 189 Iowa 1167. There was involved in the Castle and Corn Belt Tel. Co. cases the action of the superior court in refusing a change of venue from said court to the district court. There was involved in the Atchison, T. S.F.R. Co. case the action of the district court in refusing the plaintiff a change of venue to the county through which its line of railway was operated. There was involved in the State ex rel.Erdahl case the action of the district court in refusing a change of venue from one county to another. The statutes upon which the change of venue in said cases was asked, were mandatory, and we held in each of said cases that the action of the court in refusing a change of venue constituted an illegality; that the complaining party was entitled to relief by certiorari; and that an appeal is not an adequate remedy.
The party litigant who has been erroneously refused a change of venue cannot appeal from the action of the court in refusing the change, but must suffer judgment to be entered against him, and then appeal from the final judgment. Timonds *Page 207 v. Hunter, supra; Atchison, T. S.F.R. Co. v. Mershon, supra;State ex rel. Erdahl v. District Court, supra.
The appellee relies on Ransom v. Cummins, 66 Iowa 137. From the facts as stated in said case it appears that a justice of the peace, upon information, issued a search warrant to search certain premises occupied by the plaintiff, and to seize any intoxicating liquor which should be there found. Certain liquors were seized, and return thereof made to the justice of the peace. The plaintiff therein made application, at the proper time and in the proper form, for a change of the place of the trial, on the ground of the prejudice of said justice of the peace, which application was overruled. The said plaintiff brought in the district court an action of certiorari, to test the legality of said action, and we there held that the erroneous action of the justice of the peace in overruling the motion for change of venue could not be called in question by certiorari, stating that the plaintiff had a plain, speedy, and adequate remedy by appeal. But it is manifest that he did not have the right of appeal from the erroneous action of the justice of the peace in overruling the motion for change of venue. The appeal could be only from the final judgment. The justice of the peace had no discretion in passing upon the motion. When he overruled the motion, his action in so doing constituted an illegality, for failure to perform his mandatory duty. The pronouncement in said case is not in harmony with our subsequent pronouncements in Chicago, B. Q.R. Co. v.Castle, supra; Corn Belt Tel. Co. v. Superior Court of Oelwein,
supra; Atchison, T. S.F.R. Co. v. Mershon, supra; and State exrel. Erdahl v. District Court, supra; and because thereof, said case, Ransom v. Cummins, supra, is hereby overruled. The plaintiff was entitled: (1) to the change of venue, as requested, and (2) to an appeal from an adverse final judgment of the justice of the peace to whom the case should have been transferred. The illegality of the action of the mayor in refusing the change of venue deprived the plaintiff of such rights. If the plaintiff is not entitled to relief by certiorari, a mayor or a justice of the peace can arbitrarily refuse to grant a change of venue, and the illegality of such action cannot be reviewed. The learned trial court undoubtedly relied upon the case which we hereby overrule.
Since we hold that the action of the mayor in overruling *Page 208
the motion for change of venue constituted an illegality within the meaning of Section 12456 of the Code, and that an appeal from the final judgment does not constitute a plain, speedy, and adequate remedy for said illegality, and that the plaintiff is entitled to relief by way of certiorari, the action of the trial court in annulling the writ and dismissing plaintiff's action and rendering judgment against him for the costs is hereby reversed. — Reversed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247141/ | JOHN D. BATES, United States District Judge
The United States brings this in rem action pursuant to 18 U.S.C. § 981(a)(1)(A) seeking forfeiture of sixteen defendant properties alleged to have been part of "an international conspiracy to launder proceeds of corruption in Nigeria during the military regime of General Sani Abacha." Compl. [ECF No. 1] ¶¶ 1, 4. Eight claimants-all relatives of an individual alleged to have been involved in the conspiracy-filed verified claims of interest in four defendant investment portfolios, asserting that they are the beneficiaries of a trust structure that owns these portfolios. The government has moved to strike the verified *124claims, on the ground that claimants lack Article III standing to contest the forfeiture. For the reasons explained below, the Court will grant the government's motion to strike as to seven of the eight claimants, and grant in part and deny in part the government's motion to strike as to the remaining claimant, Ibrahim Bagudu.
BACKGROUND
I. PROCEDURAL HISTORY
The United States commenced this action on November 18, 2013, by filing a verified complaint for forfeiture in rem against five corporations, seven bank accounts, and four investment portfolios. The government alleges that Nigeria's former de facto President General Sani Abacha, his sons Mohammed Sani Abacha and Ibrahim Sani Abacha, their associate Abubakar Atiku Bagudu, Nigeria's former National Security Advisor Ismaila Gwarzo, Nigeria's former Minister of Finance Chief Anthony Ani, and others "embezzled, misappropriated, defrauded, and extorted hundreds of millions of dollars from the government of Nigeria" and then "transported and laundered the proceeds ... through conduct in and affecting the United States." Id. ¶¶ 1, 8-15. The defendant properties are alleged to contain proceeds from these illegal activities.
On May 1, 2014, eight claimants-all relatives of Abubakar Atiku Bagudu-filed verified claims of interest in the four defendant investment portfolios (the "claimed assets").1 See Verified Claims and Statements of Interest [ECF Nos. 17-19, 21-25]. The claimed assets are described in paragraphs 4(h) through 4(k) of the Complaint as follows:
h) All assets held in the name of Blue Holding[s] (1) Pte. Ltd., on behalf of or traceable to Ridley Group Limited and/or the Ridley Trust, at J.O. Hambro Investment Management Limited2 in the United Kingdom, and all interest, benefits, or assets traceable thereto ["Asset 4(h)"];
i) All assets held in the name of Blue Holding[s] (2) Pte. Ltd., on behalf of or traceable to Ridley Group Limited and/or the Ridley Trust, at J.O. Hambro Investment Management Limited in the United Kingdom, and all interest, benefits, or assets traceable thereto ["Asset 4(i)"];
j) All assets held in the name of Blue Holding[s] (1) Pte. Ltd., on behalf of or traceable to Ridley Group Limited and/or the Ridley Trust, at James Hambro & Partners LLP, in the United Kingdom, and all interest, benefits, or assets traceable thereto ["Asset 4(j)"]; and
k) All assets held in the name of Blue Holding[s] (2) Pte. Ltd., on behalf of or traceable to Ridley Group Limited and/or the Ridley Trust, at James Hambro & Partners LLP, in the United Kingdom and all interest, benefits, or assets traceable thereto ["Asset 4(k)"].
Compl. ¶¶ 4(h)-(k).
Five claimants are adults: Ibrahim Bagudu (Abubakar Atiku Bagudu's brother), Aisha Atiku Bagudu (one of Bagudu's wives), and Ibrahim Atiku Bagudu, Mohammed Atiku Bagudu, and Maryam Atiku Bagudu (Bagudu's adult children). The *125remaining three claimants are minor children of Abubakar Atiku Bagudu and Aisha Atiku Bagudu: I.A.B., F.A.B., and H.A.B. Claimants uniformly assert that they have a "beneficial ownership interest and/or financial stake" in the claimed assets as beneficiaries of two trusts: Blue Family Trust I and Blue Family Trust II (collectively, the "Blue Family Trusts"). See, e.g., Ibrahim Bagudu Verified Claim [ECF No. 19] ¶¶ 2(a)-(h), 3. Claimant Ibrahim Bagudu asserts an additional interest in the claimed assets because he is "entitled to receive-and [has] receive[d]-a $100,000 annual annuity from Blue Family Trust II." Id. ¶ 2(i).
On March 3, 2017, the government filed a motion to strike claimants' verified claims on the ground that claimants lack Article III standing to contest this forfeiture action. Pl.'s Mot. to Strike [ECF No. 165] at 1. The motion has now been fully briefed, and a hearing was held on October 26, 2017, followed by supplemental briefing. Because the trust structure is at the heart of the standing inquiry, the Court will first describe the Blue Family Trusts.
II. THE BLUE FAMILY TRUSTS
The Blue Family Trusts were established in July 2010 as a successor trust structure to the Ridley Trust. Stmt. of A. Mullins ("Mullins Stmt.") [ECF No. 187-24] ¶ 3. Blue PTC Pte. Ltd. ("Blue PTC"), a company registered in Singapore, serves as the trustee for the Blue Family Trusts. Id. ¶ 4; see Ibrahim Bagudu Interrog. Resp. [ECF No. 163-4] at 10-11. The Blue Family Trusts' assets consist entirely of shares of stock in two other Singapore Companies: Blue Holdings (1) Pte. Ltd. and Blue Holdings (2) Pte. Ltd. (collectively, the "Blue Holdings Companies"). Blue PTC holds 100% of the ordinary and redeemable preference shares of the Blue Holdings Companies. See Bus. Profiles of Blue Holdings (1) Pte. Ltd., Blue Holdings (2) Pte. Ltd. [ECF Nos. 165-10 & 165-11]; Mullins Stmt. ¶ 5. Blue PTC holds no other assets. Mullins Stmt. ¶ 5.
The terms governing the Blue Family Trusts are set forth in two deeds of settlement. See Deed of Settlement of Blue Family Trust I ("Deed I") [ECF No. 165-3]; Deed of Settlement of Blue Family Trust II ("Deed II") [ECF No. 165-4]. The Blue Family Trusts are irrevocable trusts that are to be "construed according to the laws of Singapore." Deed I ¶¶ 3, 20; Deed II ¶¶ 3, 20. They are discretionary, as opposed to fixed, trusts. See Decl. of Prof. Tang Hang Wu ("Tang Decl.") [ECF No. 165-19] ¶ 13; Decl. of Prof. Hans Tjio ("Tjio Decl.") [ECF No. 187-23] ¶ 1. In a fixed trust, the shares of the beneficiaries are explicitly fixed from the outset. Tang Decl. ¶ 4. In contrast, in a discretionary trust the shares of beneficiaries are not fixed from the outset; instead, the trustee is typically given the authority in the trust deed to determine whether to apply trust assets for the benefit of beneficiaries.3 Id.
Claimants are among the currently named beneficiaries of the Blue Family Trusts. The beneficiaries listed in the Third Schedule for Blue Family Trust I include all of the claimants, as well as one non-claimant.4 Deed I at 16-17. The beneficiaries *126listed in the Third Schedule for Blue Family Trust II include all the claimants, as well as two non-claimants. Deed II at 16-17.
The discretionary nature of the Blue Family Trusts is evident from the terms of the deeds of settlement, which state that the trustee "may":
pay or apply the income of the Trust Fund to or for the benefit of all or such one or more of the Beneficiaries exclusive of the other or others of them as shall for the time being be in existence and in such shares if more than one and in such manner generally as the Trustees shall in their absolute discretion from time to time think fit.
Deed I ¶ 5(c) (emphasis added); Deed II ¶ 5(c) (same). The trustee also has discretion to decline to distribute income to any of the beneficiaries and, instead, may apply all of the trusts' income to pay maintenance costs, liabilities, or to add to the trust capital. Deed I ¶¶ 5(a), (b), (d); Deed II ¶¶ 5(a), (b), (d). The trustee's discretion is similar with respect to capital-it may apply the trusts' capital "to or for the benefit of all or such one or more of the Beneficiaries exclusive of the other or others of them." Deed I ¶ 6(b); Deed II ¶ 6(b). Hence, if the trustee decides to distribute income or capital, it has absolute discretion to restrict such payouts to a subset of beneficiaries. In other words, the trustee could distribute all income and capital to some combination of the non-claimant beneficiaries, leaving nothing for the claimants. Furthermore, the trustee has discretion to determine the beneficiaries of the Blue Family Trusts. Specifically, the trustee may, at any time during the trust period, irrevocably remove any beneficiary (including any claimant) from the list of beneficiaries, or elect to add additional beneficiaries. Deed I ¶ 9(a)-(b); Deed II ¶ 9(a)-(b).
Six of the claimants are members of the Final Repository of the Blue Family Trusts.5 Deed I at 17; Deed II at 17. Accordingly, to the extent that any part of the trust fund remains undisposed at the conclusion of the trust period, the trustee will hold any remaining assets in trust for the Final Repository. Deed I ¶ 7; Deed II ¶ 7. However, in exercising its powers throughout the trust period, the trustee "shall not take into account any interest which the Final Repository as Final Repository may at any time have in the Trust Fund." Deed I ¶ 7(c); Deed II ¶ 7(c). Nor is the trustee obliged to disclose to any member of the Final Repository that he or she "may become entitled to an interest in the Trust Fund ... except after ... the Final Repository has become entitled to an absolute vested indefeasible interest in the Trust Fund." Deed I ¶ 7(d); Deed II ¶ 7(d).
To date, two claimants have received distributions from Blue Family Trust II, while six claimants have not received any distributions.6 Claimant Ibrahim Atiku Bagudu received a distribution from Blue Family Trust II in the amount of €117,865 around May 21, 2013. Ibrahim Atiku Bagudu Interrog. Resp. [ECF No. 163-11] at 20-21. Claimant Ibrahim Bagudu has received eleven distributions from Blue Family Trust II between January 2011 and August 2014, totaling €5,139,672. Ibrahim Bagudu Interrog. Resp. at 22-23. The trustee has never denied any claimant's request for a distribution, see Mullins *127Stmt. ¶ 22, and no claimant has received a distribution from Blue Family Trust I.
III. THE BLUE HOLDING COMPANIES
As described above, the trustee, Blue PTC, holds shares of stock in two companies-the Blue Holdings Companies-that themselves hold the claimed assets. The same two individuals serve as the directors of Blue PTC and the Blue Holdings Companies. Id. ¶¶ 7, 10. The Blue Holdings Companies are family-owned investment holding companies that were incorporated in Singapore solely to hold assets as part of the Blue Family Trusts structure. Id. ¶ 6. Two of the claimed assets-Assets 4(h) and 4(j)-are held in the name of Blue Holdings (1) Pte. Ltd. at two investment management companies in the United Kingdom-Waverton Investment Management and James Hambro & Partners LLP. The other two claimed assets-Assets 4(i) and 4(k)-are held in the name of Blue Holdings (2) Pte. Ltd. at the same U.K. firms. Compl. ¶¶ 4(h)-(k).
LEGAL STANDARDS
In a civil forfeiture action, the government is the plaintiff, the properties subject to forfeiture are the defendants in rem, and "defenses against the forfeiture can be brought only by third parties, who must intervene." United States v. 8 Gilcrease Lane, 641 F.Supp.2d 1, 4 (D.D.C. 2009) (citation omitted). To intervene, a claimant must establish Article III standing.7 Id. at 5. Under Rule G(8)(c)(i) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Suppl. Rule"), the government may move to strike a claim at any time before trial because the claimant lacks standing. The government may frame the motion as one for summary judgment, as it has done here. See Suppl. Rule G(8)(c)(ii)(B).
I. SUMMARY JUDGMENT
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). "An issue is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). "If there are no genuine issues of material fact, the moving party is entitled to judgment as a matter of law if the nonmoving party 'fails to make a showing sufficient to establish the existence of an element essential to that party's case ....' "8 Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
In deciding a motion for summary judgment, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ; see Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006). The nonmoving party's opposition, however, must consist of *128more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence. See Fed. R. Civ. P. 56(e) ; Celotex, 477 U.S. at 324, 106 S.Ct. 2548. If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
II. ARTICLE III STANDING
"When the government moves to strike a claim for lack of standing, a claimant has the burden to establish standing by a preponderance of the evidence." United States v. Seventeen Thousand Nine Hundred Dollars ($17,900.00) in U.S. Currency, 859 F.3d 1085, 1089 (D.C. Cir. 2017). To establish standing, a claimant must demonstrate "a colorable interest in the property, for example, by showing actual possession, control, title, or financial stake." United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 959 F.Supp.2d 81, 95 (D.D.C. 2013) [hereinafter " Bank Julius Baer II"] (citation omitted). "In general, any colorable claim on the property suffices-typically, an ownership or possessory interest." ($17,900.00) in U.S. Currency, 859 F.3d at 1090 (internal citation and quotation marks omitted). A claimant need not "definitively prove the existence of that interest," Bank Julius Baer II, 959 F.Supp.2d at 95 (citation omitted), and the requirements for a claimant to establish standing to contest a forfeiture are "very forgiving," United States v. Emor, 785 F.3d 671, 676 (D.C. Cir. 2015) (citation omitted); see also United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 79 (2d Cir. 2002) ("The function of standing in a forfeiture action is therefore truly threshold only-to ensure that the government is put to its proof only where someone with a legitimate interest contests the forfeiture."). "While ownership or possession of property may provide evidence of standing, and in some circumstances act as, in effect, a surrogate for an inquiry into whether there is injury direct enough and sufficient enough to sustain standing, it is injury that is at the heart of the standing question." United States v. Cambio Exacto, 166 F.3d 522, 527 (2d Cir. 1999) ; see 8 Gilcrease Lane, 641 F.Supp.2d at 6 ("Showing a real or imminent injury is essential to establish constitutional standing."). An "interest" in the property is determined under the law of the state or foreign nation in which the interest arose-here, Singapore-and the constitutional effect of that interest is determined under federal law. Bank Julius Baer II, 959 F.Supp.2d at 96.
DISCUSSION
I. IBRAHIM BAGUDU'S STANDING BASED ON HIS ANNUITY
An initial issue is whether claimant Ibrahim Bagudu's annuity provides him, or any other claimants, with standing to contest the forfeiture. By a deed of appointment dated September 3, 2010, the trustee established an annuity of $100,000 from Blue Family Trust II for the benefit of Ibrahim Bagudu. Mullins Stmt. ¶ 23. Ibrahim Bagudu received four annuity payments (totaling $400,000) between January 2011 and July 2013. Id. Thereafter, when the assets of the Blue Holdings Companies were frozen pursuant to English court orders in connection with this litigation, Ibrahim Bagudu's annuity payments ceased. Id. ¶ 24. The government has conceded that the annuity provides Ibrahim Bagudu with a vested proprietary interest in the trust assets. See, e.g., Tr. of Oct. 26, 2017 Hr'g at 31:19-32:15; Pl.'s Mot. to Strike at 2 n.1, 25; Tang Decl. ¶ 27. The loss of a $100,000 annuity clearly is a sufficient injury to establish Article III standing. See Cambio Exacto, 166 F.3d at 528 ("Substantial economic harm is plainly the type of injury for which parties may seek redress in federal court."). Indeed, *129Ibrahim Bagudu has already been injured because he has not received annuity payments for the last three years. Forfeiture of the claimed assets will cause that injury to continue, while return of the assets will allow the annuity payments to resume. Thus, Bagudu has also satisfied the causation and redressability elements required for standing. The government nonetheless contends that there are impediments to, or limitations on, Bagudu's standing.
To begin with, the government argues that Bagudu lacks standing because his annuity merely gives him an interest in the trust assets which "consist of shares of stock in the Blue Holdings Companies ... [and] it is well established that a corporate shareholder does not have standing to challenge the forfeiture of the corporation's property." Pl.'s Mot. to Strike at 25. It is true that courts generally have held that a corporate shareholder lacks standing to contest the forfeiture of a corporation's assets. See, e.g., United States v. Young, 77 F.Supp.3d 1191, 1192 (D. Utah 2014) ; United States v. 479 Tamarind Drive, No. 98 Civ. 2279 DLC, 2011 WL 1045095, at *2 (S.D.N.Y. Mar. 11, 2011). This is so because a shareholder has no ownership interest in any specific assets of a corporation. United States v. Real Prop. Associated with First Beneficial Mortg. Corp., No. 3:08CV285, 2009 WL 1035233, at *3 (W.D.N.C. Apr. 16, 2009). But Ibrahim Bagudu does not assert standing as a mere shareholder. He instead asserts his claim as an annuitant-and, in that capacity, it is clear that he has a proprietary right to a specific portion of the claimed assets, and will be directly harmed by forfeiture of those assets.9 See Pl.'s Mot. to Strike at 24-25 ("[T]he Claimants have no present, vested interest in any specific property, other than Ibrahim Bagudu's interest in the Annuity." (emphasis added) ). In fact, the government's expert, Professor Tang, did not characterize the annuity as a proprietary right to shares of stock-he instead stated that Bagudu has a present right to $100,000. Tang Dep. Tr. [ECF 187-21] at 253:4-14. "Courts generally do not deny standing to a claimant who is either the colorable owner of the res or who has any colorable possessory interest in it." United States v. Contents of Accounts Numbers 3034504504 & 144-07143 at Merrill Lynch, Pierce, Fenner & Smith, Inc., 971 F.2d 974, 985 (3d Cir. 1992) ; see United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1057 (9th Cir. 1994) ("In order to contest a forfeiture, a claimant need only have some type of property interest in the forfeited items."). Hence, Ibrahim Bagudu's standing is not defeated by the doctrine of corporate separateness.
The government next contends that even if Ibrahim Bagudu has standing, it should be limited to the present value of his annuity. See Pl.'s Mot. to Strike at 2 n.1; Pl.'s Suppl. Br. [ECF No. 202] at 1. But a claimant need only show a colorable interest in "at least a portion of the defendant property" to establish Article III standing.10
*130United States v. $31,000.00 in U.S. Currency, 872 F.3d 342, 349 (6th Cir. 2017) (citing United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497 (6th Cir. 1998) ); United States v. All Assets Listed in Attachment A, No. 1:14-CV-969, 2015 WL 1221392, at *3 (E.D. Va. Mar. 13, 2015) (same); see also United States v. $421,090.00 in U.S. Currency, No. 11-CV-00341 JG, 2011 WL 3235632, at *5 (E.D.N.Y. July 27, 2011) ("[Claimant's] colorable ownership interest in even a portion of the funds is sufficient to establish a concrete interest in the proceedings as a whole. Accordingly, because he has established a facially colorable interest in these forfeiture proceedings, [claimant] has established his standing to contest the government's proposed forfeiture of the entire amount."). The government has provided no authority to support its partial standing argument. The sole case that the government identified, United States v. Sum of $70,990,605, 128 F.Supp.3d 350 (D.D.C. 2015), is irrelevant. There, the government moved to strike the claim of a foreign bank on statutory standing grounds. The court analyzed whether the foreign bank was an "owner" of the seized funds within the meaning of 18 U.S.C. § 981(k), which provided that "a 'foreign financial institution' is considered the 'owner,' and is thus able to bring a claim, 'to the extent' it 'had discharged all or part of its obligation to the prior owner of the funds' prior to the date of the seizure." Id. at 355 (quoting 18 U.S.C. § 981(k)(4)(B)(ii)(II) ). But Article III standing was not at issue there, see id. at 356 n.2, and neither statutory standing nor § 981(k) are at issue here. That case is therefore of no aid to the government, and the Court will not limit Ibrahim Bagudu's standing to the present value of his annuity.11
The government's stronger argument is that Ibrahim Bagudu's standing should be limited to certain defendant properties. The government claims that because the annuity has been paid exclusively from one of the four defendant investment portfolios (the "Waverton account"), his standing is limited to that property. Pl.'s Suppl. Br. at 3. A claimant "must establish standing as to each of the ... in rem defendants named in the plaintiff's complaint in which it asserts an interest." Bank Julius Baer II, 959 F.Supp.2d at 96 ; see United States v. $8,440,190.00 in U.S. Currency, 719 F.3d 49, 57 (1st Cir. 2013) ; United States v. $70,670.00 in U.S. Currency, No. 15-CV-23616, 2016 WL 8314622, at *2 (S.D. Fla. Dec. 21, 2016), R. & R. adopted, No. 15-CV-23616, 2017 WL 714231 (S.D. Fla. Feb. 23, 2017) ("A claimant in a civil forfeiture proceeding bears the threshold burden of establishing both Article III standing and statutory standing with respect to each claimed defendant property."); United States v. Real Prop. Located at 8 Drift St., No. CIV. 14-3587 (MAS), 2015 WL 5007830, at *4 (D.N.J. Aug. 20, 2015). It is undisputed that Ibrahim Bagudu's four annuity payments have been made from the Waverton account. See Cls.' Resp. Stmt. of Genuine Issues and Material Facts [ECF No. 187-25]
*131¶¶ 96(a)-(d). But the deed of appointment granting the annuity simply indicates that the payments are to be made from the income of Blue Family Trust II, without specifying a particular investment portfolio. Id. ¶ 95; see Deed of Appointment of an Annuity, Blue PTC Pte. Ltd., Sep. 3, 2010 [ECF 187-3] ¶ 2. Hence, any future annuity payments could be made from the other investment portfolio associated with Blue Family Trust II (the James Hambro account).See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ("[A]ll justifiable inferences are to be drawn in [the non-movant's] favor."). Accordingly because the annuity was appointed specifically from Blue Family Trust II, it does not provide Bagudu with any interest in the assets of Blue Family Trust I. In sum, Ibrahim Bagudu's annuity provides him with standing only to contest the forfeiture of the claimed assets held in the investment accounts associated with Blue Family Trust II (Assets 4(i) and 4(k) ).
II. WHETHER BAGUDU'S STANDING CONFERS STANDING ON THE OTHER CLAIMANTS
Claimants contend that if Ibrahim Bagudu has standing to contest the forfeiture, then the other claimants do not need to establish Article III standing and they may proceed to the merits as if they had standing. Cls.' Suppl. Br. [ECF No. 201] at 6-7. The Court disagrees.
In civil litigation, plaintiffs bear the burden of establishing standing for each claim asserted. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). It is true, as claimants point out, that as long as one plaintiff has standing to raise a claim, the Court generally need not address whether other plaintiffs have standing to raise the same claim. See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017) ("If constitutional standing 'can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim.' " (quoting Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) ) ). But civil forfeiture actions are unique in the sense that the government is the plaintiff, the properties and assets are the defendants in rem, and each prospective claimant seeking to intervene to contest the forfeiture is required to file his or her own "verified claim" stating the claimant's asserted interest in the defendant properties. 8 Gilcrease Lane, 641 F.Supp.2d at 4-5 ; Suppl. Rule G(5). Thus, courts have widely recognized that "[e]ach claimant in a civil forfeiture action must have ... Article III standing with respect to each asset in which he or she asserts an interest," United States v. Sum of $70,990,605, 234 F.Supp.3d 212, 229 (D.D.C. 2017) (emphasis added); United States v. Bank Julius Baer & Co., 664 F.Supp.2d 97, 104-105 (D.D.C. 2009) [hereinafter " Bank Julius Baer I"] ("At the summary judgment stage, each claimant must" establish "a cognizable interest in the assets potentially subject to forfeiture." (emphasis added) ),12 and it is not uncommon for courts to strike *132certain claimants for lack of standing while allowing others to proceed, see, e.g., United States v. 12636 Sunset Ave., Unit E-2, W. Ocean City, Md., 991 F.Supp.2d 709, 712-13 (D. Md. 2014) ; United States v. $7,599,358.09, 953 F.Supp.2d 549, 552 (D.N.J. 2013) ; Bank Julius Baer II, 959 F.Supp.2d at 84 ; United States v. 105,800 Shares of Common Stock of FirstRock Bancorp, Inc., 830 F.Supp. 1101, 1123 (N.D. Ill. 1993).
Claimants have not identified a single civil forfeiture case where a court has allowed some claimants to piggyback on another claimant's standing, without demonstrating their own colorable interest in the defendants in rem. Nor is the Court persuaded by claimants' argument that "in substance, all of the Claimants have the same 'claim.' " Cls.' Suppl. Br. at 7.13 Claimants have filed eight separate "verified claims," and only Ibrahim Bagudu's is based on his annuity interest; thus, he alone is injured by the loss of the annuity. See In re 650 Fifth Ave. & Related Properties, No. 08 Civ. 10934 (KBF), 2013 WL 4572527, at *2-3 (S.D.N.Y. Aug. 27, 2013) ("[E]ach claimant must have suffered an injury in fact of a legally protected interest."). Hence, each of the remaining claimants must demonstrate their own standing to contest the forfeiture.
III. CLAIMANTS' STANDING AS BENEFICIARIES OF THE BLUE FAMILY TRUSTS
Having found that Ibrahim Bagudu's standing based on his annuity does not extend to the other claimants, the question then is whether claimants, as beneficiaries of the Blue Family Trusts, have standing to contest the forfeiture. The government contends that there are two independent defects in claimants' standing: (1) they only have a future, contingent interest in the trusts' assets such that their injury is hypothetical or conjectural, rather than actual; and (2) even if they had a legally cognizable interest in the trusts' assets, it is undisputed that the trusts' assets are not the claimed assets. The Court will address these arguments in turn-but first, it must identify claimants' interest in the trusts' assets.
A. Claimants' Interest in the Trusts' Assets
Claimants assert that they have standing as the present named beneficiaries of the Blue Family Trusts. Cls.' Opp'n [ECF No. 187] at 10, 19-25. The Court looks to Singapore law to determine claimants' interest in the property.14 Bank Julius Baer II, 959 F.Supp.2d at 96. Having *133reviewed the parties' briefs, the expert declarations, the discovery materials, the pleadings and claims, and the supporting authorities, the Court makes the following determinations as to claimants' interest in the trusts' assets.
Claimants are among the beneficiaries of two discretionary trusts.15 Tang Decl. ¶ 13; Tjio Decl. ¶ 1. The parties agree that the trustee, Blue PTC, holds legal title to the trusts' assets, but does not have any beneficial interest in the trusts' assets. Tang Decl. ¶ 11; Tjio Decl. ¶ 11. Because the Blue Family Trusts are discretionary trusts, claimants have no vested beneficial interest in the assets of the trusts.16 Nor do claimants have any proprietary interest in any specific assets of the trusts. Tang. Decl. ¶ 8. Indeed, claimants' expert, Professor Tjio, conceded as much at his deposition:
Q: What is your opinion concerning the interest that these beneficiaries [i.e., the claimants] have in the, in the trust assets?
A: They don't have a right to any specific part of the assets, but they have a right to see that the trust assets are protected .... [T]hey have a right to ensure that the trustees administer the trust properly ....
Tjio Dep. Tr. at 161:20-162:3; see also id. at 84:19-85:2 (agreeing that the trustee must exercise discretion in favor of claimants before they have "a right to any part of the trust property"). And it appears that he so conceded for good reason-this point is widely acknowledged in the scholarly treatises on discretionary trusts. See, e.g., Graham Virgo, The Principles of Equity and Trusts 381 (2d ed. 2016), Ex. 4 to Pl.'s Reply [ECF No. 192-5] ("A discretionary trust is a trust for distribution subject to a power of selection which is exercisable by the trustees amongst the objects of the trust. It follows that the objects have no proprietary interest in the trust fund itself ...."); see also Pl.'s Reply at 5, 8-9 (collecting sources).
Claimants nevertheless contend that they have six "present interests and rights under the applicable Trust Deeds and Singapore law that the Government did not consider ... in moving to strike their [c]laims." Cls.' Opp'n at 21-22. The Court will analyze these asserted rights in turn. Ultimately, they are of little aid to claimants.
*134The first two rights involve claimants' ability to sell for value their interests as (1) beneficiaries entitled to an equal share of the trust assets upon termination and (2) members of the Final Repository. But "the ability to assign or sell a thing for value does not say anything about the nature of the [interest] assigned or sold." Pl.'s Reply at 12. It is plain that claimants lack any proprietary interest in any specific trust assets, and they cannot create such an interest through assignment or sale. In any event, it is clear from the language of the trust deeds that the underlying rights claimants intend to sell for value are unvested, and contingent on the favorable exercise of the trustee's discretion. Per the deeds, the trustee has absolute discretion to exclude any beneficiaries-including claimants-from any end-of-trust-period trust. Deed I ¶ 6(c) (when the trust period concludes, the trustee shall hold the assets in trust "for such Beneficiaries and in such proportions or for one to the exclusion of the other or others and if more than one in such shares absolutely as the Trustees may ... appoint"); Deed II ¶ 6(c) (same). Because the trustee has the power to eliminate beneficiaries at its discretion, see Deed I ¶ 9; Deed II ¶ 9, it is also uncertain whether claimants will even be among the named beneficiaries at the end of the trust period. Hence, it is inconsistent with the terms of the trust deeds to characterize claimants' interest at termination as a "present" interest to which claimants are "entitled." Claimants' interest in the Final Repository is no more certain-rather, it is contingent on the trustee not exhausting all of the assets during the trust period. And, as previously noted, the trustee "shall not take into account" any interest that members of the Final Repository might have during the life of the trusts. Deed I ¶ 7(c); Deed II ¶ 7(c).
The third and fourth rights can be addressed more quickly. With respect to the third right-to band together and terminate the trusts-claimants have acknowledged that, at the time their claims were filed and even now, this right is unavailable to them. See Tr. of Oct. 26, 2017 Hr'g at 80:3-14; Tjio Dep. Tr. at 85:3-21. Thus, it cannot serve as the basis for standing. Wheaton College v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012) ("[S]tanding is assessed at the time of filing ...."). And the fourth right-claimants' ability to demand information and an accounting from the trustee-says nothing about whether claimants have any colorable interest in specific assets of the trust. After all, shareholders have the right to demand information about the corporations in which they invest, yet it is widely accepted, in Singapore and the United States, that they lack any interest in specific corporate property.
Turning to the fifth asserted right, under the trust deeds claimants clearly have a right to be considered, in the exercise of the trustee's discretion, for distributions. The trustee has a fiduciary duty to act properly and reasonably in this regard. Tjio Decl. ¶ 6. But the "right to be considered as a potential recipient of benefit by the trustee[ ]" "is not a proprietary interest in the assets held by the trustee[ ] ...." JSC Mezhdunarodniy Promyshlenniy Bank v. Pugachev, [2015] EWCA (Civ.) 139, [13] (Eng.), Ex. 10 to Pl.'s Reply [ECF No. 192-11]. It has instead been considered an expectancy interest that the trustee will one day favor the claimants. See Gartside v. Inland Revenue Comm'rs., [1968] AC 553 (HL) 617, Ex. 13 to Pl.'s Reply [ECF No. 192-14] (beneficiary under a discretionary trust has "an 'interest,' " but this interest consists only of the "right to be considered as a potential recipient of a benefit by the trustees and a right to have his interest protected by a court of equity"); Kennon, [2008] HCA 56, ¶ 160 (reading Gartside to create "a mere expectancy").
*135Claimants' sixth and final asserted right-standing to take the trustee to court in Singapore to compel proper administration of the trust, including for improper denial of a distribution-is essentially a right to sue, or a chose in action. Kennon, [2008] HCA 56, ¶ 75 ("The rights to consideration and to due administration are in the nature of equitable choses in action."). Although Professor Tjio characterized this right as a proprietary interest, he readily acknowledged that it does not provide claimants with the right to enjoy, control, or possess the trust property, and that it does not constitute a vested interest in any specific trust assets. See Tjio Dep. Tr. at 93:14-94:12; see also id. 175:20-176:5.
In sum, the undisputed record establishes that under Singapore law, claimants, as presently named beneficiaries of these discretionary trusts, do not own, have any beneficial or proprietary interest in, or exercise dominion and control over the specific assets of the trusts. Claimants have the right to be considered for distributions, subject to the exercise of the trustee's discretion and in conformance with the trustee's fiduciary duties. But this is not a proprietary right to specific assets; rather, it is an expectancy interest in the favorable exercise of discretion by the trustee. Claimants also have the right to bring suit against the trustee in Singapore to enforce the proper administration of the trusts. The remaining question, then, is whether claimants' interest is sufficient to support Article III standing.
B. Effect of Claimants' Interest for Standing
1. Whether Claimants Have a Sufficient Interest in the Trusts' Assets
Having determined claimants' interest in the trusts' assets under Singapore law, the Court now examines the constitutional effect of that interest under federal law. Bank Julius Baer II, 959 F.Supp.2d at 96. To support standing, claimants' interest must give them a "colorable claim" on the res, "typically, an ownership or possessory interest." ($17,900.00) in U.S. Currency, 859 F.3d at 1089. In short, the question is whether the elimination of claimants' interest amounts to an injury that is actual and concrete, rather than conjectural or hypothetical. 8 Gilcrease Lane, 641 F.Supp.2d at 4, 6.
The parties are unaware of any forfeiture case involving a discretionary trust, see Pl.'s Reply at 18; Tr. of Oct. 26, 2017 Hr'g at 37:7-12, nor has the Court found one. Thus, the parties have provided the Court with cases that they perceive to be analogous. The government compares claimants' interest in the trust assets to potential heirs "who may, one day, take from a deceased's estate, subject, of course, to the deceased not dissipating his estate in advance of death or devising it to another party." Pl.'s Reply at 19. Courts have held that heirs-even actual heirs-who have a future, contingent interest in property lack standing to contest a forfeiture of that property. See, e.g., United States v. $90,000 in U.S. Currency, 56 F.Supp.3d 744, 747 (D. Md. 2014) (holding, under Maryland law, that the daughter of deceased owner of seized money who stood ready to inherit the funds as soon as the estate could be administered in probate lacked standing because she held only "a contingent future interest in the defendant property"); United States v. 477 Firearms, 698 F.Supp.2d 894, 900 (E.D. Mich. 2010) (holding, under Michigan law, that "potential heirs and legatees have a mere expectancy interest" which is not a "legally cognizable interest").17 Another line of cases *136relied on by the government involves marital interests of spouses contingent upon the dissolution of marriage, which courts have deemed insufficient to confer standing to contest a forfeiture.18 Pl.'s Mot. to Strike at 18-19. Claimants contend that these analogies fail because "the Government's central premise-that Claimants' interests are inchoate-is wrong." Cls.' Opp'n at 28 ("In contrast, Claimants have present property interests sufficient for Article III standing that already exist."). But claimants are wrong to dismiss these cases so casually. While they have an expectancy interest in receiving distributions of the trust assets, their own expert acknowledged that they lack a vested interest in any "specific" trust assets. See Tjio Dep. Tr. at 161:20-162:4.
Claimants, for their part, rely on fixed trust cases. Cls.' Opp'n at 25-27. But several of these cases are of limited value when compared to the facts present here. For example, in United States v. Any And All Funds on Deposit In Account No. 12671905, Held In The Name of Landlocked Shipping Co. At Wells Fargo Brokerage Servs., LLC, All Interest And other Proceeds Traceable Thereto, No. Civ. 09-3481 HB, 2010 WL 3185688, at *2 (S.D.N.Y. Aug. 10, 2010), the claimant was the beneficiary of a fixed trust that was "obligated to pay her any income Landlocked receives." The claimants here are owed no such obligation; nor are the Blue Family Trusts fixed trusts, which provide beneficiaries with entirely different interests. See Hanbury & Martin: Modern Equity ¶ 9-015, at 199 ("In the case of a fixed trust, ... the beneficiary's interest is regarded as proprietary. She is the owner of an equitable interest under the trust. This is not so in the case of a beneficiary under a discretionary trust."). And United States v. Preston, 123 F.Supp.3d 24 (D.D.C. 2015), is similarly inapposite. That case was decided at the motion to dismiss stage where claimant's bare assertion that she was the sole beneficiary of a trust was sufficient to give her standing. Id. at 26, 29. Claimants are not sole beneficiaries of the Blue Family Trusts and, more importantly, this case stands in a different procedural posture, where bare assertions will not suffice. ($17,900.00) in U.S. Currency, 859 F.3d at 1090 ("[S]tanding must be *137supported ... with the manner and degree of evidence required at [each] successive stage[ ] of the litigation. At the pleading stage, a claimant need only allege a colorable interest in the property. In response to a summary judgment motion, however, the [claimant] can no longer rest on such mere allegations ...." (alterations in original) (internal quotation marks and citations omitted) ).
Claimants contend that the "closest analogue" to the instant case is United States v. 5 S 351 Tuthill Road, 233 F.3d 1017 (7th Cir. 2000). See Tr. of Oct. 26, 2017 Hr'g at 54:1-2. In that case, the claimant was the sole beneficiary of a land trust that gave him a fixed right to the "earnings, avails, and proceeds arising from the sale or ... disposition" of the land. Id. at 1021. The claimant did not own or possess the land, and he had no power to manage, lease, or sell the land. Id. And the trustee had discretion to sell the land on "any terms, with or without consideration." Id. The court stated that nonetheless, the claimant had an interest in "a right to future proceeds of unknown value." Id. at 1022. Because the claimant would "lose the opportunity to receive the proceeds, if and when the land is sold," he had "an actual stake in the outcome of the suit" sufficient to establish standing. Id.
Tuthill Road appears similar to this case on the surface, but a closer look reveals some significant differences. The claimant in Tuthill Road was the sole beneficiary of a trust, whereas claimants here are among the beneficiaries of a trust where the trustee has absolute discretion to add or subtract beneficiaries. Like the claimant in Tuthill Road, forfeiture will cause claimants here to lose an opportunity: to request future distributions from the trust funds. But the claimant in Tuthill Road faced a different type of contingency than claimants do here. The value of his proceeds was contingent on the discretion of the trustee, while his interest in the proceeds was vested. See id. ("[T]he fact remains that should the property be sold for any amount of money, that money is due to [the claimant]."). Here, by contrast, whether or not claimants have any interest in the trust assets is contingent on the discretion of the trustee, and their status as beneficiaries does not provide them with any vested interest. Pl.'s Mot. to Strike at 16 ("Claimants not only cannot say how much they will one day receive, they also cannot say-unlike the beneficiary in Tuthill Road-whether they will receive anything ...."). Claimants, then, have a far weaker interest than did the claimant in Tuthill Road.
Ultimately, whether claimants have a legally cognizable interest in the assets of these trusts is a close question, even under the forgiving standard that applies in the civil forfeiture context. Claimants-as the beneficiaries of discretionary trusts who have not been favored by the trustee-have a future, contingent interest in the trust assets, but they lack present rights to any specific trust property. In other contexts, courts have generally found such interests too hypothetical to create an actual case or controversy. Claimants have failed to provide the Court with any authority in which a claimant with a similar unvested, contingent interest in property was found to have standing to contest a forfeiture. The Court therefore concludes that claimants have failed to satisfy their burden of demonstrating standing by a preponderance of the evidence.
2. Whether Claimants Can Avoid the Doctrine of Corporate Separateness
The government asserts that even if claimants could show that they have a legally cognizable interest in the trusts' assets, they would lack standing for an independent reason: "it is undisputed and *138indisputable that the Trusts' assets are not the Claimed Assets." Id. at 21. Instead, the trusts' assets consist entirely of shares of stock in the Blue Holdings Companies, and it is the Blue Holdings Companies that hold title to the claimed assets (i.e., the account portfolios). Claimants accuse the government of "elevating form over substance" and ignoring the "overarching unified family trust structure." Cls.' Opp'n at 31-32. But the government did not create this "multi-layered, interlocking trusts structure" with separate corporate entities. Pl.'s Reply at 1. It simply seeks to have claimants "honor and adhere to the forms and procedures commensurate with this freely-chosen design."Id. at 2.
To that end, it is undisputed that Singapore law, like U.S. law, recognizes the doctrine of corporate separateness. Cls.' Opp'n at 38; Tang Decl. ¶¶ 28-30; Tjio Decl. ¶¶ 21-22. Hence, shareholders of a Singapore company do not own or have any proprietary interest in the assets of that company. Tang Decl. ¶¶ 28-30; Tjio Decl. ¶¶ 3, 22. Claimants nonetheless contend that the doctrine of corporate separateness is "merely the 'starting point,' " and they present several arguments why it should be disregarded here. Cls.' Opp'n at 38 (quoting Tjio Decl. ¶ 22).
To start, claimants state that Singapore law "leaves room 'for reverse veil piercing,' " and "other means to disregard the corporate form where it [is] rational and pragmatic to do so." Id. at 39-40. But claimants' expert conceded that he is unaware of any Singapore court that has permitted the shareholders of a company to lift the corporate veil or disregard the corporate form for their own benefit. Tjio Dep. Tr. at 132:4-13. Nor do any of the Singapore cases cited by claimants suggest that the corporate veil should be set aside here.19
Claimants similarly suggest that Singapore courts would assess whether shareholders "have a financial interest" in a corporation's assets and, if so, take a "pragmatic ... approach" to permit those shareholders to assert claims to such assets. Cls.' Opp'n at 38 (quoting Tjio Decl. ¶ 3). But whether or not Singapore courts would do so is immaterial-the relevant question is whether, under U.S. law, a shareholder has a sufficient "financial interest" in a corporation's assets to establish Article III standing.20 See Bank Julius Baer II, 959 F.Supp.2d at 96. The answer is overwhelmingly no.
Courts here have consistently held under federal law that a shareholder lacks standing to contest the forfeiture of a corporation's assets. See, e.g., Young, 77 F.Supp.3d at 1192 ; United States v. Four Thousand Two Hundred Seventy-Eight Dollars, No. 12-10253, 2014 WL 3420774, at *4 (E.D. Mich. July 14, 2014) ("[S]hareholders generally do not have Article III standing to contest the forfeiture of corporate property.");
*139United States v. Real Prop. Associated with First Beneficial Mortg. Corp., No. 3:08CV285, 2009 WL 1035233, at *3 (W.D.N.C. Apr. 16, 2009) ("Because of this lack of ownership interest in the specific property, it has been held in each of the cases deciding the issue that a shareholder in a corporation does not have Article III standing to contest the forfeiture of corporate property."). Moreover, courts have applied this principle equally to closely held companies and sole shareholders. In First Beneficial Mortgage Corporation, for example, the court held that a sole shareholder lacked standing to contest a civil forfeiture action. 2009 WL 1035233, at *3 ("The law cannot allow a sole corporate shareholder to disregard the corporate entity when it suits him and allow him the benefit of the corporate entity when he desires."); see also United States v. Two Bank Accounts Described as: Bank Account in Amount of $197,524.99 Bank of Am., Seattle, Wash., No. 06-4005, 2008 WL 5431199, at *5 (D.S.D. Dec. 31, 2008) (holding that sole shareholder lacked standing to contest forfeiture of corporate assets). It follows, then, that Blue PTC, as the sole shareholder of the Blue Holdings Companies, lacks standing to contest the forfeiture. And even if claimants could step into Blue PTC's shoes based on their interest in the trusts' assets, they too would lack standing. At bottom, under the corporate separateness doctrine, only the Blue Holdings Companies themselves would arguably have standing to challenge the forfeiture of the claimed assets.21
Claimants nonetheless argue that "[i]n certain circumstances, courts have found a shareholder possesses sufficient interest to contest the forfeiture of corporate assets." Cls.' Opp'n at 41. The cases that claimants cite, however, do not convince the Court that standing exists here. In United States v. All Funds in Bluffview Securities Account, LP, No. CV-11-05472 AHM, 2012 WL 12855582, at *4 (C.D. Cal. Nov. 26, 2012), the court dismissed a shareholder claimant seeking to contest the forfeiture of brokerage accounts for lack of statutory standing and, only in dictum, stated that he "arguably presented enough evidence to establish Article III standing." And in United States v. Emor, 785 F.3d 671, 676 (D.C. Cir. 2015), the claimant was not asserting a claim as a shareholder, but instead as a victim who owned the seized funds prior to being induced to pay them over by fraud.
Claimants have identified only two cases-both from courts in other jurisdictions-that have held that shareholders have standing to contest the forfeiture of corporate assets. In United States v. One 1983 Dodge Ram Van, 1989 WL 42581 (E.D. La. Apr. 21, 1989), two claimants contested the forfeiture of a van seized in a drug operation-the corporation that held legal title to the van and the corporation's majority shareholder. Id. at *1. The court held, without citing any authority, that the shareholder claimant had standing because she "can be considered as an owner" of the van, based on her role as the majority shareholder and president of the corporation.22 Id. Here, unlike the posture of One 1983 Dodge Ram Van, the Blue Holdings Companies have not appeared alongside the claimants to contest the forfeiture. And under Singapore law a shareholder is not considered as an owner of the corporate assets. Tang Decl. ¶¶ 28-30; Tjio Decl. ¶¶ 3, 22.
*140In the other case, United States v. Eleven Million Seventy-One Thousand One Hundred & Eighty-Eight Dollars & Sixty-Four Cents ($11,071,188.64) in U.S. Currency, 825 F.3d 365 (8th Cir. 2016), the government seized allegedly money-laundered drug trafficking funds from banking and brokerage accounts. Id. at 368. The corporation that held title to the funds filed a claim along with the corporation's sole shareholder. Id. The court dismissed the corporation's claim based on its repeated discovery violations. Id. at 369. Then, after dismissing the corporation, the court determined that the sole shareholder had standing because she was the person with "the greatest financial stake" in putting the government to its proof that the corporate assets were subject to forfeiture. Id. at 371. But the Eighth Circuit's decision has only been cited sparingly, and it appears to be the only case that has found that a shareholder has standing to contest a civil forfeiture because the shareholder had the "greatest financial stake" in a corporation's assets.
Both of these cases are non-binding and inconsistent with the majority of cases that have held that a shareholder-even a sole shareholder-lacks standing to contest the forfeiture of a corporation's assets. And it remains settled law in this Circuit that a corporate shareholder "cannot bring a personal suit in his own name to vindicate the rights of [a corporation] except under limited exceptions." Kay v. FCC, 621 Fed.Appx. 5, 6 (D.C. Cir. 2015) (mem.); see Am. Airways Charters, Inc. v. Regan, 746 F.2d 865, 873 n.14 (D.C. Cir. 1984) ("No shareholder-not even a sole shareholder-has standing in the usual case to bring suit in his individual capacity on a claim that belongs to the corporation.").23 Therefore, claimants have provided no basis to set aside the doctrine of corporate separateness, and they also lack standing for this independent reason.
CONCLUSION
For the foregoing reasons, the Court will grant the government's motion to strike as to seven of the eight claimants, and grant in part and deny in part the government's motion to strike as to the remaining claimant, Ibrahim Bagudu. Ibrahim Bagudu has standing to contest the forfeiture of certain of the defendant properties-specifically, the assets designated as Assets 4(i) and 4(k) in the Complaint-associated with Blue Family Trust II. A separate Order accompanies this Memorandum Opinion.
Initially, there were ten claimants, but two withdrew their claims. See Unopposed Mot. to Withdraw Verified Claims of Zainab Shinkafi Bagudu and R.A.B. [ECF No. 66]; Aug. 19, 2014 Minute Order Granting Mot. to Withdraw Verified Claims of Zainab Shinkafi Bagudu and R.A.B.
J.O. Hambro Investment Management Limited has changed its name to Waverton Investment Management.
Discretionary trusts are commonly used in jurisdictions based on English common law (including Singapore) because, inter alia, they accommodate the need to react to changes in circumstances of the beneficiaries and they provide protection from the beneficiaries' creditors. Tang Decl. ¶ 5; see Glister & Lee, Hanbury & Martin: Modern Equity ¶ 9-015, at 192-93 (20th ed. 2015).
The identities of the non-claimant beneficiaries have been removed from the memorandum opinion at claimants' request. Claimants' other redaction requests are denied because, after inquiry by the Court, claimants were unable to explain any harm that will actually result from publication, and the information subject to the requests is important to the disposition of the claims as explained in the memorandum opinion.
Claimants Ibrahim Bagudu and Aisha Atiku Bagudu are not included in the Final Repository.
At least one non-claimant has received a distribution from Blue Family Trust II. See Dirs.' Resolution of Blue PTC Pte. Ltd., Sept. 18, 2013 & Sept. 20, 2013 [ECF No. 165-5].
A claimant must also establish statutory standing by complying with the procedural requirements set forth in the relevant forfeiture statutes and rules. The government does not challenge claimants' statutory standing.
The parties do not believe that there are any genuine disputes as to any material facts. See Tr. of Oct. 26, 2017 Hr'g [ECF No. 200] at 7:3-12.
Outside of the forfeiture context, courts have recognized that standing may lie for a shareholder who has suffered a particular injury or who has an interest beyond a mere right as a shareholder. See Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990) (recognizing an exception to the shareholder-standing rule when a shareholder has a "direct, personal interest in a cause of action ... even if the corporation's rights are also implicated"); Harpole Architects, P.C. v. Barlow, 668 F.Supp.2d 68, 76 (D.D.C. 2009) (recognizing the same and noting that, in this circumstance, "shareholders are suing to enforce their own rights, not the corporation's").
The standing inquiry is, of course, a threshold determination that is distinct from the merits determination that comes later. Bank Julius Baer II, 959 F.Supp.2d at 95 ; see United States v. Funds in the Amount of $239,400, 795 F.3d 639, 647 (7th Cir. 2015) ("Standing must be clearly separated from the merits in civil forfeiture cases so that the government is not relieved of its burden to prove that property is subject to forfeiture." (citation omitted) ); cf. FMC Corp. v. Boesky, 852 F.2d 981, 991 n.21 (7th Cir. 1988) ("In any event, whether [plaintiff] is entitled to recover a specific amount of damages ... is not the question here, which is whether [plaintiff] was injured for purposes of Article III's case or controversy requirement.").
The other cases cited by the government in support of this argument, see Pl.'s Suppl. Br. at 4, merely stand for the proposition that a claimant must establish standing as to each of the defendants in rem-an altogether different concept-or are otherwise inapposite. None of the cases limited standing to a specific dollar amount.
See also United States v. $148,840.00 in U.S. Currency, 521 F.3d 1268, 1273 (10th Cir. 2008) ("As the party seeking to intervene in an in rem forfeiture action, a claimant bears the burden of establishing his own constitutional standing at all stages in the litigation." (emphasis added) ); $515,060.42 in U.S. Currency, 152 F.3d at 498 ("To contest a forfeiture action, an individual customarily bears the burden of demonstrating an interest in the seized item sufficient to satisfy the court of his standing as a claimant."); United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1111 (5th Cir. 1992) ("To contest a forfeiture action, an individual bears the burden of demonstrat[ing] an interest in the seized item sufficient to satisfy the court of his standing as a claimant." (citationomitted) ); United States v. $263,327.95, 936 F.Supp.2d 468, 471 (D.N.J. 2013) ("Any individual or entity that wishes to assert a claim to the property can do so only by intervening in the action as a claimant [and establishing Article III standing]."); 8 Gilcrease Lane, 641 F.Supp.2d at 6 (Article III standing requirement "relates to the claimant's ability to show that he has a sufficient interest in the property to satisfy the case-or-controversy requirement" (citation omitted) ); United States v. $271,070.00 in U.S. Currency, No. 96 C 239, 1997 WL 94722, at *3 (N.D. Ill. Mar. 3, 1997) ("To establish Article III standing, each Claimant bears the burden of establishing a legally cognizable interest in the property that will be injured if the property is forfeited to the government." (citation omitted) ); United States v. $319,603.42 in U.S. Currency, 829 F.Supp. 1223, 1225 (D. Or. 1992) ("[E]ach claimant has a threshold burden to establish standing as a claimant.").
And it is of no moment that claimants have "all raised the same defenses to the Government's claims for forfeiture." Cls.' Suppl. Br. at 7; see United States v. Real Prop. Located at 5208 Los Franciscos Way, Los Angeles, Cal., 385 F.3d 1187, 1193-94 (9th Cir. 2004) (holding that "when a claimant fails to establish the threshold requirement of standing, the claimant's challenges to the merits of the forfeiture cannot be reached").
The Court has also considered authorities from England, Australia, and other Commonwealth jurisdictions because, as the parties agree, those authorities are considered persuasive by Singapore courts. See Tang Decl. ¶ 3; Tjio Decl. at 3; see also Tjio Dep. Tr. at 17:8-20.
Beneficiaries of a discretionary trust are alternatively referred to as "objects," or "potential beneficiaries." See Kennon v. Spry, [2008] HCA 56, ¶¶ 76, 125 (Austl.), Ex. 1 to Pl.'s Reply [ECF No. 192-2]; Alastair Hudson, Equity and Trusts 187 (8th ed. 2014), Ex. 3 to Pl.'s Reply [ECF No. 192-4].
The parties differ on this point. See Cls.' Opp'n at 13 (asserting that claimants have "valuable proprietary and beneficial interests in the Trusts' assets ... because ... under Singapore law, there must be a beneficial owner of the assets of a trust"); Pl.'s Reply at 7-8 (asserting that "the beneficial interests in the assets of [discretionary] trusts are ... 'in suspense' " pending the exercise of the trustee's discretion). Claimants' argument is founded on Professor Tjio's opinion that "[t]he beneficial interest cannot be in suspense as there must be someone to enforce the trust." Tjio Decl. ¶ 2(i). But, to support this opinion, Professor Tjio admittedly relied on a case, Lee Chuen Li v. Singapore Island Country Club, [1992] S.G.H.C. 165, that did not involve a discretionary trust and has not been cited by any discretionary trust cases. See Tjio Dep. Tr. [ECF No 194-1] at 33:8-35:8. In contrast, Professor Tang's opinion that "the beneficial interest of the trust assets has not crystalized," Tang. Decl. ¶ 11, is supported by numerous persuasive authorities addressing discretionary trusts, see, e.g., Kennon, [2008] HCA 56, ¶ 49; Lynton Tucker et al., Lewin on Trusts ¶ 1-061, at 30 (19th ed. 2014), Ex. 8 to Pl.'s Reply [ECF No. 192-9] ("In general, a discretionary trust has no one in whom the beneficial interest in the trust property can be said to be vested because vesting is contingent upon the selection of an object from a nominated class.").
See also United States v. Church & Dwight Co., 510 Fed.Appx. 55, 58 (2d Cir. 2013) (holding petitioner with a contingent interest lacked standing to assert claim where condition precedent was not satisfied); United States v. $7,206,157,717 on Deposit at JP Morgan Chase Bank, N.A., 274 F.R.D. 125, 127 (S.D.N.Y. 2011) ("To allow those with, at most, contingent interests in a res to intervene would open the floodgates of intervention in forfeiture actions ...."); United States v. 148 Maunalanikai Pl., No. 1:07-cv-00049, 2008 WL 3166799, at *7-8(D. Haw. Aug. 6, 2008) (future right to equitable distribution of marital property upon divorce does not confer present ownership interest sufficient to support standing); United States v. Murphy, 850 F.Supp. 981, 983 (M.D. Fla. 1994) ("Future expectation of ownership by a child is insufficient to give a child standing to contest forfeiture."); United States v. One Rural Lot, 739 F.Supp. 74, 78 (D.P.R. 1990) (potential heirs with a "mere expectancy of inheritance" lacked sufficient interest to contest forfeiture).
One of those cases, United States v. Batato, 833 F.3d 413 (4th Cir. 2016), is particularly instructive here. There, an estranged wife asserted a claim to fifty percent of the marital property subject to a forfeiture action. Id. at 434. She argued that under New Zealand law she had a right to assert a claim to marital property and a presumption that she was entitled to half. Id. at 435. The court determined that the wife lacked standing because "a right to state a claim does not rise to the level of a legal or equitable interest sufficient to satisfy Article III." Id. (internal quotation marks omitted). Until her claim to marital property was adjudicated in her favor, the wife had no actual interest in the marital property. Id. Similarly here, claimants' right to sue the trustee in Singapore courts for proper administration-which is a right to a claim-does not create a legally cognizable interest for Article III purposes, until that claim is resolved in claimants' favor.
Koh Kim Tek v. Credit Suisse AG Singapore Branch, [2015] SGCH 63, was an interlocutory decision, not decided on the merits, where the court merely observed that veil piercing "is certainly not unarguable and unsustainable," but ultimately held that the issue was best considered in another forum. Tjio Decl. ¶ 27. Pek Seng Co. Pte Ltd v. Low Tin Kee, [1989] SGHC 83, arose in the context of a "Mareva injunction," which Professor Tjio himself acknowledged presents a different "factual matrix" than this case, and was not a reverse veil piercing case. Tjio Decl. ¶ 24.
Likewise irrelevant is whether "Singapore courts ... recognize that shareholders are harmed by events which result in the diminution [of] their shares." Cls.' Opp'n at 39. The same is true for U.S. shareholders, yet established case law has made clear that shareholders lack standing to contest the forfeiture of corporate assets.
Although the government sent notice of the forfeiture complaint to counsel for both Blue Holdings Companies, see Aff. in Supp. of Default, June 2, 2014 [ECF No. 44] ¶ 8(b), neither company has appeared to file a claim to the claimed assets.
The court later noted, in rejecting the innocent-owner defenses of both claimants, that "the van was the property of the company." Id. at *2.
Claimants cite two other D.C. Circuit cases. In Whelan v. Abell, 953 F.2d 663, 672 (D.C. Cir. 1992), the D.C. Circuit concluded that a party's Article III challenge was more appropriately viewed as a real-party-in-interest challenge under Federal Rule of Civil Procedure 17(a). But Whelan did not disturb the rule of Regan.See Cherry v. FCC, 641 F.3d 494, 497 (D.C. Cir. 2011) (citing Regan approvingly but noting that Whelan recognized that certain shareholder issues do not implicate Article III standing and are better addressed as real-party-in-interest inquiries). And in BellSouth Corp. v. FCC, 144 F.3d 58, 62 (D.C. Cir. 1998), the D.C. Circuit held that a corporation had standing to challenge a regulation of two of its subsidiaries, for which the corporation was the sole shareholder, because the corporation was "itself affected" by the regulation. These cases, too, are of no aid to claimants. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7247142/ | COLLEEN KOLLAR-KOTELLY, United States District Judge
Counter-Plaintiffs Judicial Watch, Inc. ("Judicial Watch") and Thomas J. Fitton *143seek to introduce certain exhibits in support of their counterclaims. Counter-Plaintiffs indicated on March 2, 2018, that they wanted to use Exhibits 4-31. Counter-Plaintiffs discussed these exhibits as falling into five general categories: 1) Letters sent by Counter-Defendant to donors of Judicial Watch that were in turn forwarded to Judicial Watch; 2) Letters sent by Counter-Defendant to employees of Judicial Watch; 3) the Saving Judicial Watch website; 4) an email from Counter-Defendant to Mr. Fitton; and 5) advertisements by Counter-Defendant in conservative publications.
Counter-Defendant Larry E. Klayman raised authenticity objections to these exhibits. Accordingly, the Court called for further briefing by the parties in order to resolve these objections outside of the jury's presence and thereby facilitate an efficient trial. See Min. Order of Mar. 2, 2018. Upon consideration of the briefing, the relevant legal authorities, and the record as a whole,1 the Court rules as follows on the authenticity of Counter-Plaintiffs' exhibits proposed for use at trial on March 5, 2018.
I. INTRODUCTION
Pursuant to the Court's Minute Order, Counter-Plaintiffs submitted their Notice proposing support for the authenticity of Exhibits 4-9, 11-14, and 16-30, which they intend to admit through the testimony of Paul Orfanedes. The Court interprets the omission of support for Exhibits 10, 15, and 31 from Counter-Plaintiffs' Notice as an indication that they either no longer plan to introduce these exhibits, or will not seek to introduce them through Mr. Orfanedes's testimony on Monday, March 5, 2018. In their response to Counter-Defendant's objections, Counter-Plaintiffs "agree to postpone use of [Exhibits] 10, 15 and 31." Defs.' Resp. to Objs. Nevertheless, Counter-Plaintiffs do provide support for the authenticity of Exhibit 15 in their Supplemental Notice, as discussed below, and the Court accordingly shall proceed to address its authenticity. See infra n.4. As to Exhibits 10 and 31 , the Court shall not permit their introduction at trial on Monday, March 5, 2018, on this record, but Counter-Plaintiffs are not precluded from seeking to introduce them later in the trial with adequate support for their authenticity. See Min. Order of Mar. 2, 2018 (describing process for briefing authenticity).
Also of note, Counter-Plaintiffs' Notice does not employ the five categories discussed in open court, perhaps to some degree because they now plan to introduce them through Mr. Orfanedes, rather than in part or in full through some combination of testimony by Mr. Fitton and by deponents who are not available to testify at trial. Rather, Counter-Plaintiffs proceed one-by-one through the exhibits. Counter-Plaintiffs also argue that Counter-Defendant admitted to certain of the exhibits in his Answer and Affirmative Defenses to *144Amended Counterclaim of Defendants, ECF No. 91 ("Answer to Amended Counterclaim"). Notice at 5.
After submission of their Notice, Counter-Plaintiffs submitted their Supplemental Notice. They argue that other of Counter-Defendant's filings earlier in this litigation likewise represent an admission on his part. First, Counter-Plaintiffs argue that Counter-Defendant's response to their Motion for a Protective Order in 2007 did not object to the authenticity of the exhibits at issue-some of which purportedly are the same as those presently at issue-and accordingly conceded their authenticity. Suppl. Notice at 1-2 (citing ECF Nos. 73, 74). Second, Counter-Plaintiffs argue that certain of Counter-Defendant's admissions in Plaintiff's Responses to Defendants' Requests for Admission to Plaintiff, ECF No. 110 ("RFA Responses"), confirm the authenticity of specific exhibits now offered into evidence. See Suppl. Notice at 2-25 (attaching Plaintiff's responses to the requests reprinted therein).
Counter-Defendant responded to Counter-Plaintiffs' Notice and filed two responses to the Supplemental Notice. Pl.'s Resp. to Notice; Pl.'s First Resp. to Suppl. Notice; Pl.'s Second Resp. to Suppl. Notice. Among Counter-Defendant's objections was the timing of Counter-Plaintiffs' Supplemental Notice.2 At the Court's further request, Counter-Plaintiffs responded to Counter-Defendant's objections. Defs.' Resp. to Objs.
II. LEGAL STANDARD
The threshold for proof of authenticity is low; Counter-Plaintiffs need only "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). With respect to a unique document or other item, an illustrative example of sufficient evidence is "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Fed. R. Evid. 901(b)(4).
III. DISCUSSION
A. Exhibits Authenticated by Counter-Defendant's RFA Responses
Counter-Defendant's responses to Counter-Plaintiffs' requests for admissions are sufficient by themselves to establish the authenticity of many of the proposed exhibits. Those responses follow a predictable pattern. See, e.g. , Suppl. Notice at 2 (arguing authenticity of Exhibit 9 based on Plaintiff's responses to Requests 50-55); RFA Responses at 12-13 (Plaintiff's responses to Requests 50-55). Counter-Defendant admits that he assisted in drafting a specific letter. That letter seeks contributions to Saving Judicial Watch. He admits to the return address on that letter for the contributions that it seeks. He admits to authorizing that his signature be affixed to the letter. He admits that the letter came from "Larry Klayman dba Saving Judicial Watch." And he admits that the letter was sent by U.S. Mail.3
*145Counter-Defendant's responses affirming some or all aspects of the aforementioned pattern suffice to establish the authenticity of each of the following exhibits:
Exhibit 6 (Requests 39, 42; see also Requests 40-41, 43);
Exhibit 8 (Requests 44-47; see also Requests 48-49);
Exhibit 9 (Requests 50-55);
Exhibit 11 (Requests 57-62);
Exhibit 12 (Requests 64-67, 69-70);
Exhibit 14 (Requests 73-74, 77; see also Request 76);
Exhibit 15 (Requests 78-83);4
Exhibit 16 (Requests 84-89);
Exhibit 18 (Requests 94-99); and
Exhibit 19 (Requests 100-01, 104).
Another, even simpler pattern occurs where Counter-Defendant admits that a given advertisement attached to the Amended Counterclaim was placed in a specific edition of a specific periodical. He also admits to the return address-including "Larry Klayman d/b/a Saving Judicial Watch"-that appears in that advertisement for the contributions that it seeks. Counter-Defendant's responses affirming the first, and some instances, the second aspect of the aforementioned pattern suffice to establish the authenticity of each of the following exhibits:
Exhibit 20 (Request 56);
Exhibit 22 (Request 71);
Exhibit 23 (Requests 90-91);
Exhibit 24 (Requests 92-93); and
Exhibit 25 (Requests 106-07).
Where there are discrepancies between Counter-Plaintiffs' proposed exhibits and the respective exhibits to the Amended Counterclaim, to which Counter-Defendant admitted, Counter-Plaintiffs should introduce the respective exhibits to the Amended Counterclaim instead. Also, with respect to proposed Exhibit 6, using Exhibit 1B to the Amended Counterclaim incorporates the reply envelope with return address that otherwise was set forth in proposed Exhibit 7, rendering the latter unnecessary. Accordingly, the Court shall exclude Exhibit 7 on the present record.
B. Exhibits Authenticated by Cross-Reference
The authenticity of other exhibits is established by distinctive characteristics made known to the Court through exhibits authenticated above and through Counter-Defendant's testimony at trial on his claims.
Exhibit 13 is an email version of Exhibit 12. Notice at 3. The content is substantially the same. The only differences in Exhibit 13 are a January 29, 2006, date rather than a January 29, 2007, date,5 a different recipient, the combination of two paragraphs into one paragraph on page 2, adjustments to language on pages 7-8 that refer readers to a link for donations, and omission of the reply letter device and envelope. Moreover, the sender of the email in Exhibit 13 has already been deemed authentic; Exhibit 14 too is an email that comes from sender, "Larry Klayman," at address "listupdate@ru-lists.com". Accordingly, the Court finds suffi cient evidence that Exhibit 13 is authenticated.
*146Exhibit 17 is a letter that includes on the last page several handwritten notes of different styles. Counter-Plaintiffs have offered to drop the last page. Contingent on the deletion of the last page, the Court finds sufficient evidence that Exhibit 17 is authenticated.
Exhibit 21 is a January 22, 2007, advertisement that is substantially the same as Exhibit 20, which has been authenticated above. It is different insofar as the footer shows that it is an advertisement in Human Events , rather than Washington Times where the Exhibit 20 advertisement appeared on an unspecified date. But the formatting in Exhibit 21 is the same as the Human Events advertisement published one week later in authenticated Exhibit 22 on the same page 23 of that publication. Plaintiff also admitted that the return address on this advertisement is correct, though he was not asked to admit to the advertisement itself. See RFA Responses at 14-16 (Requests 63, 72). Moreover, Counter-Plaintiffs have offered to produce the original publication at trial. Accordingly, the Court finds sufficient evidence that Exhibit 21 is authenticated.
Exhibit 26 is a May 28, 2007, Washington Times advertisement that is substantially the same as the Court admitted in Exhibit 25. Aside from minor formatting differences, the only apparent difference is that the advertisement in Exhibit 25 was published two weeks earlier. Accordingly, the Court finds sufficient evidence that Exhibit 26 is authenticated.
C. Saving Judicial Watch Website Exhibits
Counter-Plaintiffs also seek to introduce two exhibits, Exhibits 4 and 5, purportedly taken from Counter-Defendant's website, www.savingjudicialwatch.org. In Plaintiff's Answer to the Amended Counterclaim, he admits that he "launched the website www.savingjudicialwatch.org after the commencement of the instant litigation, to keep the public informed about his efforts to save Judicial Watch and to seek support." Answer to Am. Countercl. ¶ 34. What remains is whether the content in Exhibits 4 and 5 in fact comes from Counter-Defendant's website.
In particular, Exhibit 4 is purportedly the home page of that website. Counter-Plaintiffs represented that they retrieved this page from the Wayback Machine, a service offered by the nonprofit Internet Archive. The Court called for briefing on issues specific to authentication of documents retrieved from the Wayback Machine, namely whether an affidavit or testimony from Internet Archive would be necessary to authenticate such documents. Min. Order of Mar. 2, 2018 (citing e.g. , Specht v. Google Inc. , 747 F.3d 929, 933 (7th Cir. 2014) ; United States v. Bansal , 663 F.3d 634, 667-68 (3d Cir. 2011) ).
Ultimately, the parties did little to address the case law. Counter-Plaintiffs report that an affidavit could not be obtained before the expected conclusion of trial, but they argue that in any event "the organization Saving Judicial Watch was merely a d/b/a of Plaintiff Klayman, which means that the contents of the website, savingjudicialwatch.org, are admissions by Plaintiff to which Defendants may testify with, or without, the screenshot being in evidence." Notice at 1 (citation omitted). Counter-Defendant simply asserts that the affidavit is required and that "it cannot be ascertained whether the screenshot is accurate or whether it has been doctored unless the original website provider can attest to it." Pl.'s Resp. to Notice at 1.
The Court's own review of persuasive authority suggests that an affidavit or testimony may not strictly be necessary, *147but district courts that require an affidavit or testimony have been found to act reasonably. See Specht , 747 F.3d at 933 ("[T]he district court reasonably required more than memory, which is fallible; it required authentication by someone with personal knowledge of reliability of the archive service from which the screenshots were retrieved."); Bansal , 663 F.3d at 667-68 (finding Federal Rule of Evidence 901(b)(1) satisfied where "the government called a witness to testify about how the Wayback Machine website works and how reliable its contents are," and "[t]he witness also compared the screenshots with previously authenticated and admitted images from [Defendant's] website and concluded, based upon her personal knowledge, that the screenshots were authentic").
Counter-Plaintiffs also argue that Counter-Defendant's response to their Motion for Protective Order, ECF No. 73, failed to object to the authenticity of the attachments thereto-including an Exhibit 18 that is similar to the Exhibit 4 they have now proposed-and so conceded that argument. See Suppl. Notice at 1; Mot. for Protective Order, ECF No. 73, Ex. 18. The Court's review of Counter-Defendant's response confirms that it does not challenge authenticity. See Pl.'s Mem. of P & A in Opp'n to Defs.' Mot. for Protective Order, ECF No. 74. There are some discrepancies between the Exhibit 4 at issue now and the Exhibit 18 accompanying the Motion for Protective Order, such as a footer in the latter version showing that it is taken from the Saving Judicial Watch website on a specific date, June 20, 2007. But the versions are largely the same.
Here, the Court finds that the purported home page does evince characteristics distinctive to Counter-Defendant's language. For example, Counter-Plaintiff used the language of "True Independent Counsel" in exhibits authenticated above, and he has asserted at trial that Judicial Watch is "my baby." See, e.g. , Defs.' Ex. 8 at 6 ("True Independent Counsel"); Feb. 27, 2018 Tr. of Jury Trial (vol. II) at 51:10 ("my baby"). Moreover, Counter-Plaintiffs indicate that Mr. Orfanedes will attest to viewing and printing a copy of the home page. Defs.' Resp. to Objs. at 1. Their response to Counter-Defendant's objections attaches a copy of the home page with a header and footer that suggest the page comes directly from the savingjudicialwatch.org website, without indications that it comes from an internet archive. Id. at 5. Contingent on Mr. Orfanedes's testimony and the offer into evidence of the version attached to Counter-Plaintiffs' response to Counter-Defendant's objections, the Court finds sufficient evidence that Exhibit 4 is authenticated.
Exhibit 5 is a press release from the website that is supported on similar grounds. Counter-Plaintiffs indicate that Mr. Orfanedes will attest to 1) visiting the Saving Judicial Watch website, 2) clicking a link which brought him to the press release proposed as Exhibit 5, and 3) printing out that press release. Notice at 1; Defs.' Resp. to Objs. The release again includes a number of characteristics distinctive to Counter-Defendant's language, e.g., a reference to Judicial Watch as "True Independent Counsel," a reference to Counter-Defendant as "the founder" of Judicial Watch, and allegations that Mr. Fitton lied about obtaining a college degree. See, e.g. , Feb. 27, 2018 Tr. of Jury Trial (vol. II) at 75:23-24 ("the founder"); id. at 58:18-22 (Mr. Fitton "told me that he had graduated from George Washington [U]niversity.... [A]s I was leaving Judicial Watch for the senate I learned that was ... a lie."). This version of the press release offers no indication that it is taken from the Saving Judicial Watch website or any other website; there is no header *148or footer, not even something that may be from the Internet Archive.
As with Exhibit 4, Counter-Plaintiffs indicate that Mr. Orfanedes will attest to viewing and printing a copy of the home page. Defs.' Resp. to Objs. at 1. Their response to Counter-Defendant's objections attaches one legible copy (and one partially cut-off copy) of the press release with a header, footer, and sidebar that suggest the page comes directly from the savingjudicialwatch.org website, without indications that it comes from an internet archive. Id. at 7-8. Contingent on Mr. Orfanedes's testimony and the offer into evidence of the legible version attached to Counter-Plaintiffs' response to Counter-Defendant's objections, the Court finds sufficient evidence that Exhibit 5 is authenticated.
D. Additional Exhibits That Are Not Authenticated
The Court shall briefly address some additional exhibits for which Counter-Plaintiffs represented in open court on March 5, 2018, that they lack the original copies (Exhibits 27-29) or for which there has been no discussion of an original copy (Exhibit 30). There are sufficient discrepancies between these and other exhibits that the Court has not found sufficient evidence on this record that they are authenticated.6
Exhibit 27 is another Washington Times advertisement, this time from the August 27, 2007, edition. Exhibit 27 contains frequent references to Counter-Defendant's standard language. For example, consistent with Counter-Defendant's testimony at trial, the advertisement claims that Judicial Watch never purchased their headquarters building, that he is "the founder" of Judicial Watch, that he left Judicial Watch "to run for the U.S. Senate," and that Mr. Fitton lied that he had graduated from George Washington University. See, e.g. , Feb. 27, 2018 Tr. of Jury Trial (vol. II) at 75:23-24 ("the founder"); id. at 58:18-22 (Mr. Fitton "told me that he had graduated from George Washington [U]niversity.... [A]s I was leaving Judicial Watch for the senate I learned that was ... a lie.").
But Exhibit 27 has different formatting than others of the previously authenticated Washington Times exhibits. It is also in color, which is likewise distinguishing. Counter-Plaintiffs represent that Mr. Orfanedes printed this exhibit from the Washington Times website, but the www.pressdisplay.com header and footer suggest otherwise. The Court finds unavailing Counter-Plaintiffs' argument that this is a self-authenticating exhibit. Notice at 5; Fed. R. Evid. 902(b)(6) (deeming self-authenticating "[p]rinted material purporting to be a newspaper or periodical"). This advertisement, standing alone and notwithstanding some references to the Washington Times , is not a newspaper or periodical itself, much less with its www.pressdisplay.com designations. As noted, Counter-Plaintiffs stated on March 5, 2018, that they do not have the original copy to offer into evidence at trial. Accordingly, at least absent a copy of the original publication, the Court shall exclude Exhibit 27 on the present record .
Exhibit 28 is a letter that seems to contain language that Counter-Defendant has used in other, authenticated letters. However, the left-hand side of the letter is partially cut off. While Counter-Plaintiffs note that "[t]he original copy is slightly more legible," Notice at 4, that original copy is not before the Court. As noted, *149Counter-Plaintiffs stated on March 5, 2018, that they do not have the original copy to offer into evidence at trial. Accordingly, at least absent a copy of the original publication, the Court shall exclude Exhibit 28 on the present record.
Exhibit 29 is a letter that purports to be from Counter-Defendant in his role at Freedom Watch. It is the only Freedom Watch exhibit in the set of documents at issue. The Court cannot recall seeing discussion of Counter-Defendant's connection to Freedom Watch in other of the exhibits that have been authenticated. While aspects of the substantive content as well as features such as the 1201 Pennsylvania Ave., Suite 300, Washington, DC 20004 address are the same as in other mailers, it is different in formatting from other letters that have been authenticated, contains a signature that is different from most, if not all, that the Court has observed in other exhibits, and has some handwriting on it. As noted, Counter-Plaintiffs stated on March 5, 2018, that they do not have the original copy to offer into evidence at trial. Accordingly, at least absent a copy of the original publication, the Court shall exclude Exhibit 29 on the present record.
Exhibit 30 is a Christmas-themed mailer that differs substantially from other letters authenticated above. While the mailer does include some of Counter-Defendant's stock language, such as the allegation that Mr. Fitton lied about graduating from George Washington University, distinguishing features include the Christmas tree picture, the inclusion of the Serenity Prayer, further references to Freedom Watch that the Court cannot recall seeing in other, authenticated exhibits, and a Miami, rather than Washington, DC, address for Saving Judicial Watch. Counter-Plaintiffs have made no representation about the whereabouts of the original copy, for purposes of offering that into evidence at trial. Accordingly, at least absent a copy of the original publication, the Court shall exclude Exhibit 30 on the present record.
E. Exhibits That the Court Does Not Reach
Above the Court indicated that it does not reach Exhibits 10 and 31 because Counter-Plaintiffs did not brief them at this time.
Counter-Plaintiffs refer to Exhibits 39-45 in their discussion of current exhibits that purportedly were attached to their Motion for Protective Order. As discussed above, Counter-Defendant did not raise an authenticity objection at that time. Apart from relying on that fact, however, the Court lacks further briefing on these exhibits that would support a finding that they can be authenticated. The Court requires further information in order to make that determination. Accordingly, the Court shall not permit the introduction of Exhibits 39-45 at trial on Monday, March 5, 2018, on this record, but Counter-Plaintiffs are not precluded from seeking to introduce them later in the trial with adequate support for their authenticity. See Min. Order of Mar. 2, 2018 (describing process for briefing authenticity).
* * *
ORDER
The following exhibits have been authenticated on the above-cited grounds: Exhibits 4-6, 8, 9, 11-26 . Admission of such exhibits is contingent on an adequate foundation provided by the testimony of Paul Orfanedes.
The following exhibits are excluded on the present record on the above-cited grounds: Exhibits 7, 27-30 .
As noted above, Counter-Plaintiffs are not permitted to introduce on Monday, March 5, 2018, the following exhibits, on *150this record, but are not precluded from seeking to introduce them later in the trial with adequate support for their authenticity: Exhibits 10, 31, 39-45 .
SO ORDERED.
The Court's consideration has focused on the following documents:
• Defs.' Notice Regarding Authenticity for Exs. to Be Used on Monday, Mar. 5, 2018, ECF No. 501 ("Notice");
• Defs.' Suppl. Notice Regarding Authenticity for Exs. to Be Used on Monday, Mar. 5, 2018, ECF No. 502 ("Suppl. Notice").
• Pl.'s Obj. to Defs.' Suppl. Notice Regarding Authenticity, ECF No. 503 ("Pl.'s First Resp. to Suppl. Notice");
• Pl.'s Resp. & Objs. to Defs. [sic] Notice Regarding Authenticity for Exs. to Be Used on Monday, Mar. 5, 2018 [Dkt. # 501], ECF No. 504 ("Pl.'s Resp. to Notice");
• Pl.'s Resp. and Obj. to Defs.' Suppl. Notice Regarding Authenticity, ECF No. 505 ("Pl.'s Second Resp. to Suppl. Notice");
• Defs.' Notice Regarding Resp. to Pl.'s Objs. to Authenticity for Mar. 5, 2018, Exs. [ECF 504/505], ECF No. 507 ("Defs.' Resp. to Objs.").
Counter-Defendant claims that "[t]he supplement is 14 hours and 2 minutes late, filed at 2:02 a.m., in violation of the Court's Order to file responsive documents by 12:00 p.m. March 3, 2018." Pl.'s First Resp. to Suppl. Notice. But Counter-Plaintiffs filed their fulsome original notice on time. Their Supplemental Notice furnished additional information that the Court has found helpful. Counter-Defendant had the full amount of time to respond to Counter-Plaintiffs' original Notice, and adequate time, in light of the circumstances, to file his response to the Supplemental Notice.
Counter-Defendant denies authorizing certain elements of these mailings, e.g., use of the phrase "Because No One Is Above the Law." See, e.g. , RFA Responses at 11 (Plaintiff's response to Request 45). However, because he admits some or all of the above pattern-e.g., assisting in drafting, authorizing signing, and authorizing mailing-the Court finds sufficient evidence that these letters are authentic.
Although Counter-Plaintiffs did not specify in their Notice that they intended to use Exhibit 15 on Monday, March 5, 2018, their Supplemental Notice nevertheless references Exhibit 15, and the Court finds that it is authenticated for the reasons set forth above.
This may point to a typo in one exhibit or the other, since the email caption in Exhibit 13 indicates that it was emailed on January 29, 2007.
The Court notes with respect to Exhibits 27-30 that a witness can testify to their content, and that a witness's recollection can be refreshed with these exhibits even though they are not admissible on the present record. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3430049/ | We devote our first attention to the plea of "accord and satisfaction." By the third division of the answer, it was made to appear that, at and before the time of his injury, the plaintiff was an employee of the Oliver Farm Equipment Sales Company; that, by reason of his injury and his disability, the plaintiff became entitled to demand and receive workmen's compensation under the Iowa statute; that the plaintiff elected to claim the benefits of the statute and proceeded to enforce his rights thereunder pursuant to the provisions of the statute; that compensation was awarded to him; that his employer has performed and is performing the final orders of the commissioner in such case, and that the plaintiff has been receiving and is receiving the full benefit of such adjudication; that all the rights of the plaintiff have been thereby fully adjudicated and the plaintiff has received full satisfaction thereof; that, if the plaintiff suffered any injury by reason of the unskillfulness or negligence *Page 1149
of the attending physician, such negligence was an aggravation of the original injury, and its consequences were recoverable to and by the plaintiff under the Workmen's Compensation law; that in any event his remedy under the Workmen's Compensation law became exclusive by the terms of the statute upon his election to pursue the same.
As against the foregoing, the plaintiff contends that he is proceeding pursuant to section 1382 of the Code, and that by the terms of such statute it is permissible to him to proceed against the defendant as a third party in a common-law action for damages. In short, section 1382 becomes the fighting ground in the case.
I. It has been the policy of the common law from its beginnings to regard the surgeon as a reasonably necessary adjunct to the recovery of the patient in personal injury cases. The wrongdoer is charged with notice of that fact and under the rules of law is rendered chargeable for the value of such surgical services and for all its hazards. If the surgeon prove neglectful or unskillful, his acts are deemed an aggravation of the injury, and their evil consequences, if any, are chargeable to the wrongdoer to the same extent as though he had himself perpetrated the negligence. All the consequences of unskillful treatment are deemed to inhere in the original wrong. That is to say, the original wrong of the wrongdoer is deemed as the efficient cause of such aggravation as results from the surgical treatment, be it good or bad. Evidence of the surgical treatment is always admissible, and likewise evidence of the conditions resulting from the surgical treatment. The extent of the recovery in a common-law action is measured by the actual conditions without distinction as to whether they resulted through the fault of the wrongdoer or through the fault of the surgeon. It has naturally followed, therefore, that, where the injured party proceeds against the wrongdoer by an action for damages, and thereby recovers his damages, he is deemed to have received full satisfaction for the injury suffered and for all of its aggravations, if any, by unskillful treatment. We have had the question before us quite recently in Phillips v. Werndorff,215 Iowa 521, 243 N.W. 525. A few brief quotations from our opinion in that case will indicate the general rule applicable in common-law cases. We therein said:
"The rule is almost universal that the aggravation of an injury resulting from the unskillful treatment of a physician or surgeon, if *Page 1150
reasonable care was observed in his employment, is one of the elements of the damages for which the original wrongdoer is liable. * * * The law is equally well settled in this and perhaps all other jurisdictions that but one satisfaction for an injury received may be had; that is to say, that, if a settlement and release is obtained by one who is liable for all of the suffered injuries and compensation made therefor, no action may be maintained against another who may also have been liable for the whole or some part thereof. * * * The foregoing rule has in many cases been applied in actions against a physician or surgeon who treated the injuries originally inflicted for malpractice. But one satisfaction may be demanded."
In Snyder v. Mutual Telephone Co., 135 Iowa 215, 112 N.W. 776, 14 L.R.A. (N.S.) 321, we said:
"To constitute a settlement with some one joint tort-feasor such as to release another who is sought to be held liable for the same tort, it must be shown that the settlement was of the entire claim against the one with whom the settlement is made. But, when it appears that there has been such settlement, supported by a valuable consideration, the entire right of action against any other person who might have been proceeded against for the same injury is extinguished; for the right of action for tort is indivisible, and one satisfaction extinguishes the entire demand."
II. Does the foregoing rule apply when the injured party has sought and obtained redress through the Workmen's Compensation Act? Section 1380 of the Code expressly provides that the remedies provided in the act "shall be exclusive of all other rights and remedies of such employee." This proviso is subject to the one exception contained in section 1382. The exception stated in section 1382 is as follows:
"When an employee receives an injury for which compensation is payable under this chapter, and which injury is caused under circumstances creating a legal liability against some person other than the employer to pay damages, the employee, or his dependent, or the trustee of such dependent, may take proceedings against his employer for compensation, and the employee or, in case of death, his legal representative may also maintain an action against such third party for damages." *Page 1151
The substance of this exception is that, where the injury suffered by the workman has been caused by a wrongdoer other than the employer, the injured party may proceed at common law against such wrongdoer. If he recovers from such wrongdoer, he must make restitution to his employer out of his recovery for all the compensation received from him. He must also protect him out of the same source against future payments. It is the contention of the plaintiff that in pursuing his action he is acting within the permission of such section 1382. The test at this point is whether the plaintiff is really proceeding against the wrongdoer
who inflicted the original injury and who is therefore liable forall the injury suffered by the plaintiff. The term "the injury" contained in this section clearly has reference to the original or substantive injury which caused the disability of the plaintiff. This injury is referred to specifically in many of the succeeding sections. Reference therein is repeatedly made to "thedate of the injury." In all of such sections the reference is clearly to the original injury. Let us suppose by way of illustration that the injury to plaintiff had been caused by wrongdoer A. Under section 1382, the plaintiff could bring his common-law action against him. In such action he could recover all the damages suffered, including those from surgical malpractice, if any. The only permission granted to the plaintiff under section 1382 is that he may sue A. He does not sue A. On the contrary, he purports to sue the surgeon, not for the original injury, but for its later aggravations. He may not, under the statute, split his cause of action and take the benefit of the Workmen's Compensation Act as to the original injury, and pursue the surgeon for his want of skill or negligence. The record discloses that the original injuries suffered by the plaintiff were very serious; that they consisted of several broken bones, including a broken hip, a broken leg, and a broken wrist. The employer employed the surgeon and thereby assumed full responsibility for his compensation and for his mistakes, if actionable. We deem it clear that the plaintiff, having resorted to the remedy provided by the Workmen's Compensation Act, is bound by its terms; that by such proceeding he fixed the status as between himself and the surgeon; that his recovery of compensation in that proceeding worked a satisfaction of any claim against the surgeon; that under section 1382 he had the right only to proceed against the wrongdoer who inflicted the original injury and none *Page 1152
other; that he might recover his full damage from such wrongdoer; that no right was thereby conferred upon him to proceed against the surgeon; that, as to the surgeon, section 1382 conferred on plaintiff no right of retraction.
The provisions of the statute here considered have been deemed as advantageous to the injured employee, in that they enable him to obtain a complete remedy in one action against his employer or against the wrongdoer, as the case may be. This was undoubtedly the motive of the legislation. Inasmuch as under the statute heneed not resort to multiplicity of action, so by the same token he must not so resort. He is therefore required to elect and to pursue one course or the other. To split his cause of action and to recover from the wrongdoer or the employer, for the original injury and disability, and from the surgeon for its aggravations, is to enter a field of extreme uncertainty in the apportionment of damages. The determination of such an issue must usually rest upon a mere guess. There could be no possible advantage to the injured employee in such a double course other than that it might enable him to occupy twice the broad zone of doubt in the apportionment and to obtain therein an overlap of his damages; and thereby to convert his cause of action into a speculative enterprise. Such a result is repugnant to the motive of the law.
The judgment of the district court is accordingly affirmed.
ALBERT, C.J., and KINDIG, DONEGAN, and CLAUSSEN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430050/ | Involved in this controversy are two estates, and, for a more lucid understanding of a somewhat complicated affair, a statement of the relationships of the parties and the chronological facts is important.
Peter and Adelaide Hoffman were husband and wife. Augustin Hoffman, the appellant, and Emil P. Hoffman, the appellee, are their sons. On the 23d day of October, 1888, Peter Hoffman acquired, by warranty deed, title to certain real estate in Mills County. It is this land that is now in litigation. In December, 1907, appellant purchased this farm from his father for a consideration of $4,000, payable by the execution of a promissory note to Adelaide and Peter Hoffman, due on or before January 1, 1918, with interest at the rate of 5 per cent per annum. That instrument was secured by a mortgage on said acreage. Adelaide Hoffman, the mother, died intestate, October 30, 1914. Her estate was never administered, but, according to the record, she left no debts. After Adelaide's death, the "note" was left with the father, Peter Hoffman, who died testate, August 30, 1924. By the terms of his will, he gave appellee $2,000, which was to be collected from the "note," and the balance thereof due the testator, together with the residue *Page 1196
of his estate, was bequeathed to appellant. Appellee received the $2,000, and receipted therefor.
Subsequently, it appears, discovery was made by appellant that the mortgage to his parents, securing the $4,000 purchase price above named, could not be properly released, because the mother's estate was never settled, and appellee still retained an interest therein. That is to say, originally Peter Hoffman owned a one-half interest in the "note," and the other one half thereof belonged to Adelaide Hoffman; and when she died, one third of her one half was inherited by her husband, and the remaining two thirds descended to appellant and appellee, share and share alike.
Five propositions are suggested by appellant for reversal. However, he argues them under four points. They are: First, That appellee's election to accept the $2,000 under his father's will estops him from denying his brother, the appellant, the right to take under the same document; second, the statute of limitations; third, that a mortgage creates no interest in, but rather a lien upon, the real estate; and fourth, lack of authority for appellee to recover, because his mother's estate was not probated.
These contentions will be considered in the order made.
I. Under certain requisite facts, a devisee or legatee named in a will is required to affirm or disaffirm the instrument. Election so to do, under some circumstances, 1. WILLS: right is imperative. Hainer v. Iowa Legion of Honor,
of devisee: 78 Iowa 245; Kostelecky v. Scherhart, 99 Iowa estoppel. 120.
II. Yet, however that may be as a general legal proposition, nevertheless it is not controlling here, for the reason that there is nothing in the record to demand application thereof; for appellee is not opposing his father's will, nor is he denying appellant's right to take thereunder.
Foundation for appellee's claim in the case at bar is based upon his interest in the mother's estate, not the father's. So there is no inconsistency in the attitude taken by appellee. Consequently no "election" is necessary. Hence an estoppel does not result.
III. At this juncture, the assertion is made by appellant that appellee's demand is barred by the statute of limitations. Such plea relates to appellee's partial ownership of the note as *Page 1197
2. LIMITATION an asset of his mother's estate. If the OF ACTIONS: necessary period of time has not elapsed to trust prevent the assertion of that right, it is estate. conceded that recovery on the instrument is allowable, for the reason that it is not ten years past due. Close analysis of the situation, however, reveals the fact that this position is not tenable. Parenthetically, it is recalled that the "note" in which Adelaide Hoffman owned a half interest was, at her death, retained by her surviving husband, Peter Hoffman. This was done, according to appellee's theory, so and in order that the living parent could collect the proceeds and make proper distribution of the same.
A careful reading of the entire record, together with the provisions of the will, sustains this idea. The will itself, although indefinite at this point, upholds that interpretation of the father's purpose in keeping the "note" in his possession. Because, in the third paragraph of the testamentary document, giving to appellant an interest in the "note," the language is:
"To my son Augustin, I give and will to him the balance (due), or to become due me from said four thousand dollar mortgage which I now hold * * *."
Recognition was there made by the testator that some portion of the debt described was not his, and in this he was correct; for, in truth and fact, it did not belong to him, but rather, was the property of and "due" the estate of Adelaide Hoffman. If there is nothing due the testator, then neither appellant nor appellee could receive anything under the will. All that the testator owned was due him, and no more. He could give away what was his; not that which belonged to someone else. Therefore, the object of Peter Hoffman in holding the "note" was twofold: First, to preserve and retain his own share therein; and second, to act as trustee for appellant and appellee, so far as concerns the interest acquired by them through their mother's estate. Such fiduciary relationship existed until the death of Peter Hoffman, and he at no time repudiated it. Necessarily, then, the statute of limitations never ran. Murphy v. Murphy, 80 Iowa 740. Therein we said:
"As a general rule, the possession of property subject to the trust by the trustee is the possession of the cestui que trust.
* * * Therefore, the trustee must repudiate his trust, * * * and notice of such repudiation * * * must be so given as to *Page 1198
make the cestui que trust chargeable therewith, before the statute will commence to run."
IV. As a defense to appellee's cross-petition asking for the foreclosure of the mortgage, appellant urges that such security contract does not create an interest in the real estate, and that, therefore, the title to the land in 3. MORTGAGES: question should be quieted in him who is the foreclosure: fee-simple owner. To establish this doctrine, effect. reliance is made upon Keokuk Trust Co. v.Campbell, 205 Iowa 414, and like cases. No doubt, a "mortgage," rather than conveying title to the premises, produces only a lien thereon. Manifestly, the principles under which appellee claims are misunderstood by appellant. Clearly, appellee is not disputing appellant's ownership of the farm. Forsooth, it is to appellee's interest that appellant have a good and valid title thereto. Limitation of appellee's demand is made to the foreclosure of the "mortgage" securing his one-sixth interest in the "note" which at one time was owned in common by his father and mother.
Consistent with the Keokuk Trust Co. case, it is sought to establish and foreclose a lien, as distinguished from an endeavor to obtain or maintain title.
V. Even though the above and foregoing be true, appellant asks a reversal because he says the appellee has no right to maintain this action, for the reason that the mother's estate was never probated. With this we do not agree. Section 11891 of the 1924 Code provides:
"Administration shall not be originally granted after five years from the death of the decedent, or from the time his death was known, in case he died out of the state."
Mrs. Hoffman, the mother, died in this state on October 30, 1914. Probate proceedings for her estate were never instituted, and the time for so doing has long since expired. There were no debts left by her. Thus, two thirds of the 4. DESCENT AND property of which she died seized belong to her DISTRIBU- heirs, appellant and appellee; the other one TION: right third went to her husband, became a part of, and of heirs: was distributed with the other assets of his absence of estate. The part thereof belonging to appellee administra- has never been received by him, but, on the tion: other hand, has been retained by appellant at effect. all times since the father's death. Murphy v.Murphy, supra; *Page 1199 In re Estate of Acken, 144 Iowa 519. See, also, Baldridge v.Evans, 181 Iowa 204, and Andrew v. Dunn, 202 Iowa 364. We said inMurphy v. Murphy, supra:
"Administration of the estate of decedent was never granted. It is contended by appellant that it is not shown that it was impracticable to obtain administration when this action was commenced, and that there may be outstanding debts of decedent; hence, that plaintiffs have not shown themselves to be entitled to maintain this action. This action was commenced on the seventeenth of June, 1885; therefore, the time within which administration could have been granted had then expired. Code, Sec. 2367 [1873]. The evidence justifies the conclusion that the debts of decedent had then been fully paid. The plaintiffs, therefore, were the owners in fact of all the personal property of decedent which was not owned by defendant, and are entitled to the relief demanded in this action. * * *"
Again, in In re Estate of Acken, supra, we confirmed this doctrine by saying:
"In another case [Murphy v. Murphy, supra], where the period for granting letters had expired and the debts of the decedent had been paid, we held that the widow and heirs were entitled to maintain an action against another heir who had appropriated property of the deceased."
In truth, appellant has admitted appellee's right to the payment of this share, for, on October 16, 1926, he (appellant) wrote the following letter:
"Dear Brother [appellee]:
"I am writing you a letter to ask you to sign the paper that Mr. Record is sending you to sign. It means this. When I bought the farm from father and mother both, I gave father and mother mortgage for $4,000. Then mother died leaving no will and the mortgage is still not settled so it is for me and you to show that we are the only ones that can claim on that mortgage, that is from our mother * * *. Father's part of the mortgage is settled (through distribution by probate proceedings) * * *. We have not sent the money yet, but don't worry you will get it with interest in full to date of payment. In case you want the money sent to the bank in S. Dak. just notify the first National Bank at Glenwood * * *."
After a careful and full review of the record and the *Page 1200
authorities bearing upon the problem now before us, we are constrained to hold that appellee is in a position to demand his share of Adelaide Hoffman's estate. This being in the nature of a one-sixth interest in said "note," judgment for that amount, together with the interest allowed, was proper, and the foreclosure of the mortgage given to secure that indebtedness was correct, under the circumstances.
Wherefore, the judgment and decree of the district court should be, and hereby is, affirmed. — Affirmed.
STEVENS, C.J., and EVANS, FAVILLE, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430051/ | This is an action in the nature of a creditor's bill, to set aside a conveyance of certain real property upon the ground that such conveyance was in fraud of creditors, and to subject the same to the payment thereof.
The appellees Ella M. and H.W. Brower executed two promissory notes to J.F. Van Horn: one for $2,930.13, on March 3, 1922, and one for $1,265.63, on March 27, 1923. Prior to and on January 23, 1922, Ella M. Brower was the owner 1. FRAUDULENT of several tracts of real estate in Adair CONVEYANCES: County, which, on that date, her husband, H.W. persons Brower, joining, she conveyed to the appellee entitled Violette B. Brower, her daughter, for an to assert expressed consideration of $1.00 and love and invalidity. affection. The deed was not, however, placed of record until April 3, 1924. On or about April 18, 1924, Ella M. Brower filed a petition in voluntary bankruptcy, and was duly adjudged a bankrupt. The plaintiff and appellant herein is the trustee in bankruptcy.
It is alleged in the petition that unsecured claims aggregating about $5,000 were allowed by the bankruptcy court, and that no assets ever came into the hands of the trustee for the payment of these claims. The total aggregate indebtedness of the bankrupt, as shown by the schedule filed by her, was approximately $88,000, all of which, except the amount stated in the petition, was secured by mortgages given by her husband, in which she joined, upon real property. Appellant further alleged that the conveyance sought to be set aside was executed without consideration, and for the specific purpose of hindering, delaying, and defrauding the creditors of Ella M. Brower. The court below found that the conveyance was voluntary and without consideration, but that it was in good faith, and not for the purpose of defrauding creditors. Appellant also alleged that the deed was fraudulently withheld from the record, and for the purpose of deceiving and misleading the creditors of the grantor. *Page 259
The court found that $1,026 of the consideration of the $2,930.13 note represented an antecedent indebtedness and a present indebtedness of $100 incurred March 3, 1922, and held that as to those items the deed was void, and established a lien on the real property therefor, and ordered special execution against the same, if not paid within thirty days from the date of the decree. The amount of the lien established by the court was $1,369.22. Both parties have appealed. The plaintiff is denominated appellant in the abstract and argument, and he will be so treated in this court. The appeal of appellees is from an alleged error in the computation of interest by the court, and the establishment of the $100 item as a lien against the property. We will first dispose of appellant's appeal.
I. The principal proposition urged by appellant is that the conveyance was without consideration, and for the purpose of hindering, delaying, and defrauding creditors, and that, instead of establishing a lien upon the property 2. FRAUDULENT in his favor, the decree should have set the CONVEYANCES: deed aside absolutely, and vested title to the remedies of property in him as trustee for all of the creditors: creditors of Ella M. Brower. The evidence is establish- practically without dispute, and in our opinion ment of fully sustains the finding of the court that the lien. conveyance was without consideration, but without actual fraud. Practically the only evidence tending in any way to prove actual fraud is that of Van Horn, the creditor, to whom the notes above referred to were executed, to the effect that Ella M. Brower represented to him that she 3. FRAUDULENT still held the title to the property, and the CONVEYANCES: failure by Violette M. Brower to have the deed invalid recorded. No evidence whatever was offered from transfers: which it may be inferred that the deed was withholding withheld from the record for a fraudulent from record: purpose; and it is the law of this state that effect. the mere withholding thereof is not in itself evidence of a fraudulent intent, and a creditor who has not been misled to his damage thereby cannot complain. Brown v. Bradford,103 Iowa 378; First Nat. Bank v. Reid, 122 Iowa 280.
The value of the property considerably exceeds $5,000, the amount of unsecured indebtedness alleged in the petition. A trustee in bankruptcy who seeks by an action in equity in the *Page 260
4. BANKRUPTCY: nature of a creditor's bill to set aside a transfers by conveyance of real property, and to subject the bankrupt: same to the payment of claims allowed in a right of bankruptcy court against the grantor, which he trustee. may maintain under the Federal law without reducing his claim to judgment, is entitled to the same relief as the creditor would have been, if the action was prosecuted in his own name. In re Williams (D.C.), 123 Fed. 321; Hull v. Burr, 83 C.C.A. 61 (153 Fed. 945); In re Downing (D.C.), 192 Fed. 683; Inre Downing, 119 C.C.A. 431 (201 Fed. 93); Kentucky Bank Tr. Co.v. Pritchett, 44 Okla. 87 (143 P. 338); Cartwright v. West,185 Ala. 41 (64 So. 293); Seager v. Armstrong, 95 Minn. 414
(104 N.W. 479).
The law is well settled in this state that:
"(1) A conveyance which is merely voluntary, and when the grantor had no fraudulent view or intent, cannot be impeached by a subsequent creditor. (2) A conveyance actually and intentionally fraudulent as to existing creditors, as a general rule, cannot be impeached by subsequent creditors. (3) If a conveyance is actually fraudulent as to existing creditors, and merely colorable, and the property is held in secret trust for the grantor, who is permitted to use it as his own, it will be set aside at the instance of subsequent creditors." Brundage v.Cheneworth, 101 Iowa 256; Farmers Merch. Bank v. Daiker,166 Iowa 728.
The court, as already stated, established a lien upon the property conveyed, for the full amount of the indebtedness which Ella M. Brower owed Van Horn at the time the deed was executed. As to this sum he was an existing creditor. Evidence was introduced tending to show that Ella M. Brower continued to manage and control the property and to receive the rents and income therefrom and to otherwise treat the same as her own. Basing his contention upon this and other testimony which appellant argues discloses a fraudulent intent upon the part of the grantor and the grantee, he contends that the property is held by Violette M. Brower as a secret trust for the use and benefit of her mother, and that, under the third rule stated above, the conveyance is fraudulent as to subsequent, as well as existing, creditors. The evidence does not support appellant's *Page 261
theory. The mother and daughter worked together in a millinery store, and did not at once make public the facts concerning the deed; but, at the time it was executed, Ella M. Brower was ill, and, fearing that she might not recover, conveyed the property to her daughter. We cannot find from the evidence that it was the intention of the parties to cover up the property for the purpose of hindering, delaying, or defrauding creditors. Nothing in the nature of a secret trust is proved. The transfer was not merely colorable, but for the purpose of vesting title in the grantee. This being true, the conveyance cannot be set aside at the instance of a subsequent creditor, unless he was deceived or misled to his damage by the failure of the grantee to place the deed of record, or unless the conveyance was for the express purpose of defrauding subsequent creditors. The court below held that Van Horn had no actual knowledge of the conveyance at the time the indebtedness for $100 was contracted, and that as to this item, although he was a subsequent creditor, the transfer was to this extent void as to him, and that a lien therefor should be established in favor of appellant as trustee. There is no allegation in the petition, nor proof, that the transfer was fraudulent as to any of the remaining creditors. They were all secured by mortgages upon real property, and there is nothing to show whether they are existing or subsequent creditors, or that the mortgaged property is not ample to pay their claims.
Much reliance is placed by appellant upon Treseder v. Burgor,130 Wis. 201 (109 N.W. 957), a decision by the Supreme Court of Wisconsin. The plaintiff in that case, who was a trustee in bankruptcy, sought to set aside a deed upon the ground that it was executed in fraud of creditors. It appeared from the petition that as to some of the creditors the conveyance could not be sustained, but as to others it was good. Counsel for the defendant contended that the trustee could not maintain the action in favor of creditors who were not entitled to have the conveyance avoided. The court held that whether subsequent creditors could or could not participate in the assets recovered by the trustee was immaterial, in so far as the right of the trustee to maintain the action was concerned. Furthermore, it was conceded upon the trial that the deed was intended *Page 262
as security only for an existing indebtedness, and the grantee did not claim title to the property. The court, therefore, as is stated in the decision, had nothing before it except a question as to the amount of the indebtedness secured by the deed. Although some of the language of the court in a measure supports appellant's theory, the points decided have no bearing upon the questions involved upon this appeal. The value of the property here involved exceeded $5,000, and the relief granted appellant is full and adequate. There was no occasion for setting aside the conveyance and vesting title in the appellant, nor did the court assume to distribute among the creditors the proceeds which may be realized from a sale of the property on special execution. This must be done in the bankruptcy proceedings. All the court did was to establish the claims allowed in bankruptcy as a lien upon the property in favor of the trustee to the same extent as it would have if bankruptcy proceedings had not been instituted and the action was pending in the name of the creditor. The burden rested upon appellant to allege and prove such facts as would avoid the conveyance as to creditors, or subject the property to the payment of some or all of the claims allowed in the bankruptcy court. The transfer was void only to the extent found by the court in favor of the trustee, and it was the duty of the court to establish the same as a lien against the property, and not to set aside the conveyance absolutely so as to vest title in the trustee. Mallow v. Walker, 115 Iowa 238;Teabout v. Jaffray Co., 74 Iowa 28. On this point see In reDowning, supra.
II. We have already disposed of appellees' appeal, so far as the $100 item allowed and established as a lien on the property is concerned. The court evidently committed error in computing the amount due, and the judgment should be modified as of the date thereof, by crediting the same with $90.08, thereby reducing it to $1,279.14. The cause will be remanded to the district court for decree in harmony with this opinion. — Affirmed onplaintiff's appeal; modified and affirmed on defendants' appeal.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. *Page 263 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430072/ | The mortgage in question was given on August 5, 1926, and fell due one year after date. On August 8, 1927, Mrs. Foster died. There had been more or less domestic trouble between herself and her husband. She became seriously ill, and was confined in a hospital for many weeks. In order to provide for the expenses incident to her illness, she borrowed from the plaintiff the sum of $500, and secured the same by the mortgage in question, without conferring with her husband or obtaining his signature or consent. The parties were married in the year 1916, and had no issue. She was the owner of the 45-acre tract upon which they lived throughout their married life. Sometime after the execution of the mortgage, there was a reconciliation between her and her husband, and some adjustment of property matters. She conveyed to her husband an undivided half of the 45-acre tract, together with a life estate in the other undivided half thereof, in case he should survive her, and such conveyance was made subject to the $500 mortgage. Mrs. Foster left a will, making her foster son, the defendant Borrall, her sole devisee. Foster's defense against the mortgage is predicated upon the statute which provides that no conveyance or incumbrance of the homestead shall be valid unless signed by both husband and wife. Section 10147, Code of 1924. The reply of plaintiff pleads various matters, as constituting ratification and estoppel. We shall confine our consideration to one matter thus pleaded. This is the deed executed by Mrs. Foster to her husband, whereby he accepted a conveyance of an undivided half of the property, subject to the mortgage. The real controversy of the trial was narrowed down to the question whether Foster, as grantee of the deed from his wife, subject to the mortgage, may still contest the validity of the mortgage as to the property conveyed to him. The district court decreed a foreclosure of the mortgage only as against the undivided half of the property as conveyed to Foster by Mrs. Foster. Strictly speaking, the question of Foster's homestead right is *Page 434
not involved in the appeal, notwithstanding that his challenge to the validity of the mortgage is predicated upon the fact that it was given on the homestead. A proper analysis of the case requires that distinction be recognized between the rights of Foster as occupant of the homestead, and his rights as a mere grantee in a deed. He has renounced the will of his wife, and claims nothing thereunder. He has elected to take his one-third distributive share, under the statute, and to claim the property conveyed to him by the deed from his wife. Independently of the deed from his wife, he has, therefore, no further homestead right. His defense is predicated, not upon the claim that he has a homestead right now, but that he had a homestead right in the property when the mortgage was made, and that this fact rendered the mortgage invalid, and that he therefore took title under the deed from his wife free and clear of the mortgage lien. The question before us is, therefore, not what are his rights as a homestead occupant, but what are his rights as grantee under the deed from his wife?
The district court held that, by taking a deed in terms subject to the mortgage, he was estopped to deny the validity of such mortgage. We think the holding is sound, and has the support of abundant authority, including our own cases. It is well settled that, as between a grantor and grantee in a deed wherein conveyance is made subject to a mortgage, the mortgaged property, by agreement of the parties, becomes the primary source out of which the debt is to be paid. Foy v. Armstrong, 113 Iowa 629;Doran v. Doran, 145 Iowa 122; 3 Pomeroy's Equity Jurisprudence, Section 1205. Mrs. Foster was personally liable for this debt. Her contract with her husband whereby she conveyed to him a half interest in the homestead was valid. Harsh v. Griffin, 72 Iowa 608; Beedy v. Finney, 118 Iowa 276. She had a right, therefore, to contract with him for the consideration. She had a right, therefore, to stipulate that the property she was conveying should be liable for the mortgage. Surely, if she had conveyed the property to a grantee other than her husband, such grantee could not thereafter challenge the validity of her mortgage.Myers v. Bowers, 70 Iowa 95. Foster's rights as a husband were in no manner infringed by the decree. He was simply held to be a grantee of the deed, and he was bound by its terms to the same extent as *Page 435
any other grantee would have been. Cases from other jurisdictions which are clearly in point are: Batts v. Middlesex Banking Co.,26 Tex. Civ. App. 515 (63 S.W. 1046); Calkins v. Copley, 29 Minn. 471
(13 N.W. 904); Freeman v. Auld, 44 N.Y. 50; Jones v. Perkins,43 Okla. 734 (144 P. 183). To hold otherwise would be to enable the defendant to repudiate, as against his wife, the very terms upon which he accepted the conveyance of the property, and to leave her and her estate personally and primarily liable for the debt thus provided for.
The rule being well established, in this state, at least, that a grantee of a deed subject to a mortgage may not thereafter challenge the validity of the mortgage, we see no reason for saying that this rule is not applicable to the defendant, as grantee in this case. So far as the homestead forty is concerned, the decree gave plaintiff no relief, except as against that part thereof which the defendant holds as a grantee from his wife. We think the decree is in accord with our precedents, and is highly equitable in its result in the present case. It is, accordingly, — Affirmed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430074/ | The question is whether the defendants' possession *Page 303
of the note, under the facts of the case, is presumptive evidence of either payment or gift. Plaintiff's intestate, J.F. Strasser, died August 23, 1924. Defendants, John T. Martin and Leona Martin, are husband and wife. Leona is the daughter of intestate. On March 15, 1920, defendants executed to intestate their promissory note for $14,000, with interest payable March 1, 1930. The petition alleges payment of interest to and including March 15, 1924. Intestate lived at his own home until three or four weeks before his death, when he went to live with his daughter, Leona. Plaintiff was appointed administrator September 11, 1924. Defendant Leona turned over to plaintiff about $20 in money and an unlocked tin box, containing insurance policies, unpaid notes of White's, amounting to something over $100, and an unpaid check for $5.00 or $6.00. She told plaintiff "that was his box that they had down at their house." Decedent also owned a kit of blacksmith tools, worth $60. Decedent appears to have left no other personal property. The record is silent as to real property. There were at least two other children. In December, 1925, plaintiff and one of decedent's sons made a demand on defendants. According to the son:
"Mr. Haldeman said [to Leona], `I am acting as administrator of the J.F. Strasser estate, and I demand the note of $14,000, the note that you and John gave your father, or the money, and the blacksmith tools.' * * * She said she burnt the note, she didn't have the money, and she didn't know what about the blacksmith tools."
Plaintiff testifies:
"I told her that, as administrator of the estate, I was compelled to make a demand, and I was here for that purpose, — to make a demand, — and I asked her what she was going to do about it; and she said that they destroyed the note, and couldn't pay it, and in reference to the tools, she didn't know about them."
He says that Leona might also have said that she would not pay it, but he does not remember that. Plaintiff and the son then went to a neighboring place, and saw defendant John Martin. The son testifies that plaintiff said to John: "I am acting as administrator for the J.F. Strasser estate, and I demand the $14,000 note you and Leona gave your father, or the money, and the blacksmith tools." *Page 304
"He said he didn't know anything about it. That was all he said."
Plaintiff testifies that defendant John, in response to this demand, said he had nothing to do with it at all. "He did say it was his wife's business; that it was not his." It appears that the blacksmith tools, at the time of decedent's death, were left on the place occupied by defendants.
Defendants' contention, in substance, is that the plaintiff has the burden of proving his ownership and right of possession; that wrong is not presumed; that defendants' possession raises a presumption of "satisfaction, cancellation, and discharge." They also suggest, but do not argue, gift. The note in question appears to be negotiable. Ordinarily, possession of such paper by the maker, if overdue, raises a presumption of satisfaction. The presumption is not applicable to this case. The note was not due at the time of decedent's death. Decedent was living with defendants. His belongings, if not in their personal possession, were at least on their premises. Their possession in evidence was after his death. The defendants had access to decedent's papers, and may readily have acquired possession of the note, without making payment. Defendants do not plead payment.
Moreover, plaintiff demanded of defendants the note or the money, and the tools. This was an assertion of right to the note hostile to defendants, and could have been understood in no other way. So far from meeting this assertion with claim of ownership on her part, defendant Leona said that she had destroyed the note; that she did not have the money; that she could not pay it. Her statement that she did not have the money or could not pay the note, under the circumstances, carries the inference that she was not denying the rightfulness of demand made upon her, or plaintiff's ownership. If the note had been paid or given to her, she would have said so, instead of explaining, in effect, that she was unable to pay because she did not have the money. She not only did not deny her obligation to pay, but in effect conceded it. The defendant John Martin was one of the signers of the note. It was for $14,000. He knew whether he had paid it or not, or whether it had been given to him or his wife or not. He met plaintiff's demand with the reply that he knew nothing about it, had nothing to do with it, and nothing *Page 305
to say about it; that it was his wife's business, and not his. It was his obligation to pay $14,000. He knew it. It was his business, — not merely his wife's business. Defendants' failure to meet plaintiff's demand and implied assertion of right with any claim that the right was theirs, amounted to acquiescence in plaintiff's claim and an admission that the note was not paid, was not theirs, and that they were liable on it. Geddes v.McElroy, 171 Iowa 633, 647. The evidence contains no suggestion of purpose or reason for making a gift. Corroborative evidence that their possession was not in their own right is found in their assuming, in the same transaction, a similar and insincere attitude with respect to the tools.
Mere possession of an instrument by the maker under circumstances laying his possession open to suspicion gives rise to no presumption of payment, nor does such presumption arise if possession may be satisfactorily accounted for upon any other reasonable theory than that of payment. If the maker has access to the papers of the holder, and may reasonably have acquired the instrument without payment, there is no presumption of payment. The obligor's possession of a negotiable instrument before due of itself creates no presumption of payment. These rules are peculiarly applicable to the unexplained possession by the obligor of paper held by one who has died. Crocker v. Thompson,44 Mass. 224; Grimes v. Hilliary, 150 Ill. 141 (36 N.E. 977);Mynes v. Mynes, 47 W. Va. 681 (35 S.E. 935); Clymer v. Groff, 220 Pa. St. 580 (69 A. 1119; 14 Ann. Cas. 256); Arnold v. Arnold,124 Ala. 550 (27 So. 465, 82 Am. St. 199); Erwin v. Shaffer Curtis, 9 Ohio St. 43 (72 Am. Dec. 613); 21 Ruling Case Law 127, 128; 8 Corpus Juris 1014. Possession after the death of the holder by one having access to his papers affords no evidence of a gift. Grey v. Grey, 47 N.Y. 552; Union Tr. Sav. Bank v.Tyler, 161 Mich. 561 (126 N.W. 713); Maxler v. Hawk, 233 Pa. St. 316 (82 A. 251, Ann. Cas. 1913B 559); 12 Ruling Case Law 970; 28 Corpus Juris 669. Under the facts of this case, there is no presumption whatever of payment or gift. — Reversed.
STEVENS, C.J., and FAVILLE, De GRAFF, and ALBERT, JJ., concur.
WAGNER, J., not participating. *Page 306 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430076/ | This cause is submitted upon a stipulated state of facts, from which it appears that the appellant is a resident and taxpayer of Sioux City, and that the latter is a municipal corporation, duly organized under the laws of this state, and that the individual appellees are officers of said city. It is stipulated that, for more than three years prior to the institution of this action, the said appellees have constructed public storm sewers within the streets of said city, without first passing any resolution of necessity therefor, or preparing and filing a plat or schedule of said improvements, or fixing a time for hearing or publishing notice of any hearing, or ordering such improvements by recorded vote of the council. It is further stipulated that the appellees have, during said time, by private contract, purchased sewer pipe and other material for the construction of public sewers, without there being any competitive bid or advertisement published therefor. It is also stipulated and agreed that none of the cost of sewer construction referred to in said petition has been certified to or assessed against abutting property owners. It is further stipulated that it is the purpose and intention of the appellees, unless restrained by order of court, to continue to purchase materials on open account for the construction and repair of storm sewers in cases where the cost thereof is not to be assessed against the abutting property, and to allow claims therefor. It is also stipulated that the appellees have allowed claims for the material so purchased, and have issued or caused to be issued warrants upon the sewer fund of the appellee city in payment of said materials and labor.
The case presents but one question for our consideration, and that is whether or not a city, under the laws of this state, can make improvements in the nature of construction and repairs of sewers and pay for the same out of the general sewer fund of the city, where there is no attempt to assess the cost of the same against abutting property owners, without passing a resolution of necessity, or publishing notice, and proceeding in all other respects as provided by Chapter 308 of the Code of 1927. The identical question appears to have been before us in First Nat.Bank v. City of Emmetsburg, 157 Iowa 555. In said case we said:
"At the threshold of the several propositions lies the question of the power of the city to enter into contracts of this kind. *Page 910
If it had the power to construct sewers and to contract therefor, irregularities in the exercise of such power will not in this case relieve the city from liability. Had the city such power? Section 695 of the Code [Code of 1927, Section 5738] makes cities and towns bodies corporate, and gives them general power to contract and be contracted with, and to sue and be sued, and to exercise the inherent and implied powers of such corporations. This is a general grant of power, and our attention has not been called to, nor have we been able to find, any statute with reference to the letting of contracts for public improvements to be paid for by special assessment of the cost thereof to property benefited, which in terms or by necessary implication limits the power conferred in the general grant prior to the enactment of the special assessment statute. Sections 791, 794, 796, 810, 817, and 819 of the Code [part of Code of 1927, Chapter 308] give cities the power to construct sewers and to assess the cost thereof upon the property benefited, or to pay such cost from a sewer district or from the general fund, as the city may elect. It is apparent, therefore, that cities are authorized by the statute itself to make contracts for the construction of sewers, where the cost thereof is to be paid from a general fund, and not from special assessments, and the contracts thus authorized must, we think, relate to the business powers of the city, as distinguished from its governmental powers."
In City of Des Moines v. Horrabin, 204 Iowa 683, we said:
"The city has authority to improve a street and pay the costs out of the general fund or the highway or poll-tax fund, and if it decided to do this, no competitive bids were necessary. FirstNat. Bank v. City of Emmetsburg, 157 Iowa 555; Humboldt County v.Incorporated Town of Dakota City, 197 Iowa 457. A municipal corporation has two classes of powers: One, legislative, public, and governmental; the other, proprietary, quasi private, or business. In the exercise of powers under the second class, and in all transactions arising thereunder, the municipality is governed by the same rules that apply to private individuals or corporations. First Nat. Bank v. City of Emmetsburg, supra."
There has been no departure from the rule recognized in theEmmetsburg case, to wit: that, where a city constructs a *Page 911
sewer, and no attempt is made to tax any portion of the cost of the same against abutting property owners, but the expense for said construction is paid by the city out of the general sewer fund of said city, the proceedings with regard to a resolution of necessity, notice and hearing, and the letting of contract on competitive bids, and other matters as provided by the statute which is now embodied in Chapter 308 of the Code of 1927, need not be followed.
As bearing on the rule, see Humboldt County v. IncorporatedTown of Dakota City, 197 Iowa 457; Lee v. City of Ames, 199 Iowa 1342.
The stipulated facts bring the case squarely within the rule announced in the Emmetsburg case, and no change is pointed out in the statute that in any way requires us to overrule said cause or depart from the rule therein announced.
The decree of the trial court is correct, and it is —Affirmed.
STEVENS, C.J., and EVANS, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430094/ | I. The indictment charges that the offense was committed in Ringgold County on or about February 1, 1925. On that date the prosecutrix was a few months past 13 years of age, and the defendant, 17 or 18.
According to the testimony of the prosecutrix, the act was committed during the evening, while she and defendant were taking an automobile ride. The defendant denied that he ever had sexual intercourse with prosecutrix. The evidence shows without conflict that, on the evening of September 26, 1924, defendant and prosecutrix and four others, two girls and one boy and one man, 25 years of age, went riding together, in a Ford automobile, in the country, near Mount Ayr. Prosecutrix and one of her female companions testified that sexual intercourse was had by each of the respective couples in the automobile on that occasion. This was denied by the defendant and one of his male companions. These acts of sexual intercourse were all had in the car, and in the presence of the several occupants. The girl who sat in the back seat on the lap of her companion testified that nothing improper occurred.
At the conclusion of the State's case, the county attorney was required to elect upon which act the State would rely for conviction. He elected to rely upon the alleged act of February 1, 1925. Prosecutrix gave birth to a child at the hospital at Iowa City, November 1, 1925. Many exceptions were preserved to the court's instructions and to the refusal of the court to give requested instructions.
It is also contended by appellant that there is an utter *Page 132
absence of testimony to corroborate the prosecutrix, and tending to connect him with the commission of the offense. The prosecutrix admitted that, after she discovered 1. RAPE: that she was pregnant, she had intercourse on corrobora- two occasions with another person. Evidence was tion: introduced, tending to show that the defendant sufficiency. tacitly admitted having had immoral relations with prosecutrix, and evidence of his departure from the state, for the purpose of escaping arrest and punishment. It is true that the defendant denied all of the testimony in any way tending to incriminate him, and sought to explain his absence from the state. While the explanation was a reasonable one, the question was one of fact for the jury, and not of law for the court to decide. The evidence fully justified the submission of the case to the jury, and the verdict returned is supported thereby.
II. Numerous instructions were requested by the defendant. Some of these instructions might well have been given, but, in our opinion, the propositions presented thereby were sufficiently covered by the instructions given. For example, Requested Instruction No. 1, which related to the weight and effect to be given the evidence of the good character of the defendant, was fully covered by Instruction No. 21 1/2, and Requested Instruction No. 13, which related to reasonable doubt, was covered by Instruction No. 6, to which reference will be later made, and Requested Instruction No. 6 was sufficiently covered by Instruction No. 12.
III. Instruction No. 4 of the court's charge defined the term 2. CRIMINAL "reasonable doubt." Complaint is made of this LAW: instruction because it failed to state that a instruc- reasonable doubt may as well arise from the tions: absence of evidence as from the evidence reasonable introduced. This court has several times doubt: referred to this subject. It is said in Corpus essential Juris that: elements.
"* * * as a general rule, an instruction that a reasonable doubt must be one suggested by, or arising out of, the evidence adduced is erroneous, as it excludes all reasonable doubts that may arise from the lack or want of evidence * * *." 16 Corpus Juris, Section 2411.
The foregoing text is supported by numerous cases from other jurisdictions. It is, of course, elementary that a reasonable doubt may arise from the absence of evidence; but thus *Page 133
far, this court has declined to reverse a conviction because of the omission from the instructions of any reference to the absence of evidence (State v. Ritchie, 196 Iowa 352; State v.Tonn, 195 Iowa 94; State v. Smith, 194 Iowa 639; State v. Flory,198 Iowa 75; State v. Patrick, 201 Iowa 368), unless, possibly, in State v. Smith, 192 Iowa 218, in which we said that the instruction could not be approved; but the reversal of that case was really upon other grounds.
Instructions on the subject of reasonable doubt should be so framed as to make it clear to the jury that a doubt may arise both from the absence of evidence and from the evidence introduced. A reversal must follow in this case upon other grounds, and we again call attention merely to the omission in the instruction complained of, and do not reverse on account thereof.
IV. The court, in Instruction No. 6, stated the punishment provided for rape, as follows:
"If any person carnally know and abuse any female child under the age of sixteen years, he shall be imprisoned in the penitentiary for life, or any term of years, not less than five; 3. CRIMINAL and the court may pronounce sentence for a LAW: lesser period than the maximum, the provisions instruc- of the indeterminate sentence law to the tions: contrary notwithstanding; and when a lesser than prejudicial the maximum sentence is pronounced, the prisoner recital of shall be subject to the jurisdiction of the punishment. board of parole."
The included offense of assault with intent to commit rape, of which the defendant was convicted, was submitted to the jury. The penalty for this offense, which is subject to the indeterminate sentence law, is for a term of years not 4. CRIMINAL exceeding twenty; but this was not stated to the LAW: jury. In a later paragraph of the instructions, instruc- the court clearly instructed the jury that the tions: punishment to be inflicted was a matter with instructions which they had no concern, and that it was their relative to duty to determine the guilt or innocence of the punishment. defendant and the degree of the crime charged. It is urged in defendant's behalf that the court committed error in stating to the jury the penalty as to rape, and particularly because of the failure to state the penalty provided for assault with intent to commit rape. This court has *Page 134
repeatedly said that it is improper for the court, in its instructions to the jury, to refer to or state the penalty that may be inflicted upon the accused. State v. Reid, 200 Iowa 892;State v. O'Meara, 190 Iowa 613; State v. Purcell, 195 Iowa 272. We have, however, always declined to reverse upon this ground alone. Ordinarily, it could not be said that prejudice would be likely to result from a statement to the jury of the punishment provided for the crime. Chapter 197, Acts of the Forty-first General Assembly (Section 12966, Code of 1924), gives the court a large discretion in determining the punishment for rape. It may be for life, or for any term of years not less than five; whereas the penalty for assault with intent to commit rape is for an indeterminate term of not to exceed 20 years. The punishment for rape is to be fixed by the court, without reference to the indeterminate sentence law; whereas the punishment for assault with intent to commit rape is within its provisions, and the court has no discretion in fixing the term of imprisonment. The act on the part of the prosecutrix was apparently voluntary, and no force was used. The crime of rape was, therefore, made out by the evidence of the State. Nevertheless, the jury were entitled, under the instructions, to find him guilty of the included offense. The conduct of all of the parties concerned, on the evening of September 26th, was shameless, and apparently without the slightest sense of decency. The prosecutrix admitted that she wrote the defendant a letter, inclosing her photograph, before she became acquainted with him. The prosecutrix and the defendant are young, and it may be that the jury sought to temper its verdict with mercy, assuming that a lighter penalty would necessarily be inflicted for the minor offense. The language of the instruction complained of went further than merely to state the penalty, and referred to the jurisdiction of the board of parole, in such matters, and its authority to do justice in the case. Its effect may have been to encourage a conviction, upon the theory that a moderate punishment might be imposed, or an early parole obtained. By far the better rule is for the court to always omit from its instructions any reference to the subject of punishment. That the jury may have been misled in this case by the instruction complained of, notwithstanding the later instruction, to the prejudice of the defendant, is not only possible, *Page 135
but so wholly probable that we cannot say that no prejudice resulted.
V. Complaint is also made of the failure of the court to submit assault, and assault and battery, to the jury. The indictment does not charge that the act was accomplished by force or against the will of the prosecutrix. It is only when the 5. RAPE: indictment so charges that assault, or assault included and battery, should be submitted as included offenses: offenses. State v. Ellington, 200 Iowa 636. The failure to cited case reviews our prior decisions on this charge: subject, making all necessary distinctions, and effect. no further reference to this subject is necessary.
Other instructions are complained of, but a careful consideration thereof satisfies us that no other ground for reversal is to be found in the record. We therefore deem it unnecessary to discuss in detail the remaining propositions relied upon by the defendant. For the reasons stated, the judgment of the court below must be, and it is, reversed. —Reversed.
EVANS, C.J., and FAVILLE, VERMILION, and ALBERT, JJ., concur.
De GRAFF, MORLING, and KINDIG, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430075/ | This case presents a question of law. The facts are not in dispute. The only claim of vantage asserted by plaintiff is based on the fact that a judgment in law on the second mortgage note was secured by him against one Ford, the 1. MORTGAGES: mortgagor, subsequently to the date of the foreclosure: decree and sale of the real-estate under the sale: first mortgage foreclosure, in which appellant unenforcible was made a party defendant, as the holder of the judgment. second mortgage on the real estate involved in said foreclosure action.
The controlling legal principle may be understood by a statement of the sequential facts, which are as follows: On March 1, 1920, the plaintiff, Stiles, the then owner of the involved Bremer County real estate, conveyed same to one J.W. Ford, who thereupon, to secure the purchase price to the vendor, Stiles, executed to him two mortgages on said land, — one for $10,000 and the other for $3,500; and by the terms of the latter mortgage it was made junior and inferior to the former. Through mesne assignments, the $10,000 mortgage eventually found ownership in a partnership called the Thompson Company. The mortgagor, Ford, defaulted in payment, and on March 21, 1922, the Thompson Company commenced foreclosure proceedings, in which Stiles was made a party defendant. No personal judgment was prayed against him. This foreclosure action was properly indexed by the clerk of the court, as provided by the lis pendens statute, Section 3543, 1913 Supplement, as amended by Chapter 324, Acts of the Thirty-seventh General Assembly. The appellant, Stiles, and the mortgagor, Ford, accepted service of the original notice, but entered no appearance in said foreclosure action.
On April 20, 1922, the district court in and for Bremer County, Iowa, entered a decree of foreclosure, wherein it provided "that the liens of the mortgages held by the defendants Harry E. Stiles [plaintiff-appellant herein] and J.L. Bailey and S.O. Bailey are junior and inferior to the mortgage hereby foreclosed." Said decree further provided "that, on and after the day of the sale under said special execution, the defendants and all persons claiming by, through, or under them or either of them are forever barred and foreclosed of all interest and equity *Page 1387
in and to said mortgaged premises, except such rights of redemption as are especially provided by law."
On May 27, 1922, the sheriff of Bremer County, Iowa, sold said real estate under special execution to one Murray, to whom certificate of sale issued, in conformity to law.
On September 29, 1922, the appellant, Stiles, commenced an action at law against the mortgagor, Ford, in the district court of Iowa in and for Black Hawk County, which was the county of the domicile of the mortgagor, to recover judgment on the $3,500 note. On November 2, 1922, judgment on said note was entered against Ford, which was transcripted to the district court of Bremer County. The appellant, Stiles, did not redeem or attempt to redeem from the sheriff's sale to Murray during the period reserved and defined by statute for junior lien holders.
On May 19, 1923, Ford, the mortgagor title holder and judgment-debtor, for a valuable consideration, conveyed by warranty deed the real estate in question to one Bishop, which deed on said date was duly recorded. On the date of this conveyance, the judgment at law secured by Stiles was of record, and unsatisfied, and the grantee, Bishop, had actual and constructive notice of that fact.
Thereafter, Bishop applied to the Security Trust Savings Bank of Cedar Falls, appellee herein, for a loan of $12,500, representing that that amount was needed, to make redemption from the sheriff's sale to Murray, and that he would secure the payment of said loan by a first mortgage on the real estate in question. He further represented to said bank, upon the advice of counsel, that neither the second mortgage owned by Stiles nor said judgment at law secured by Stiles constituted a lien on said real estate, for the reason that Stiles had failed to make redemption from said sheriff's sale within the period prescribed by statute. The loan was made, the mortgage was executed, and out of the proceeds of said loan Bishop used the sum of $12,036.60 in making redemption from the sheriff's sale. These are the undisputed facts, to be considered in making application of the law governing this case.
At the outset, certain premises may be accepted that are fundamental in the case at bar. The appellant, Stiles, was a party to the foreclosure action, and was bound by the terms of *Page 1388
the decree in each and every capacity in which he might relate himself to the subject-matter thereof. Henry v. Maack, 135 Iowa 84; Wells v. Ordway, 108 Iowa 86; Bevans v. Dewey, 82 Iowa 85. When Stiles obtained his judgment at law, Ford's title to the land involved herein was imperfect, and was subject to be divested if Ford failed to redeem from the sheriff's sale. The judgment gave Stiles no higher or better right with respect to the real estate than Ford himself had.
One who acquires an interest in land pendente lite is bound by 2. LIS PENDENS: the judgment and decree of court, as though made Purchase a party to said action. Cooney v. Coppock, 119 during Iowa 486; Jackson v. Centerville, M. A.R. Co.,
litigation: 64 Iowa 292; Blanchard v. Ware, 43 Iowa 530. effect.
Stiles, as a judgment-creditor, had the right to bid at the sale or to redeem therefrom. He exercised neither of these rights, and he should not now be permitted to take advantage of a redemption made by the debtor's grantee. When the grantee of a mortgagor redeems the land, he takes the property divested of all the liens of inferior or junior lien holders who were made parties in the foreclosure action, who were bound by the decree of foreclosure, and who failed to redeem, as provided by statute.Witham v. Blood, 124 Iowa 695; Cooper v. Maurer, 122 Iowa 321;Co-operative S. L. Assn. v. Kent, 108 Iowa 146; Wells v.Ordway, supra; Bevans v. Dewey, supra; Moody v. Funk, 82 Iowa 1. This is true even when redemption is made by the judgment-debtor who has conveyed his title, since the redemption inures to the benefit of his grantee. Witham v. Blood, supra.
Appellant's judgment was not a specific lien on any particular real estate of the judgment-debtor's, but a general lien upon all his real estate, subject to all prior liens, either legal or equitable. 2 Freeman on Judgments (5th Ed.), Section 915. The judgment conveys only a right to levy on the land, to the exclusion of other adverse interests subsequent to the judgment.Independent School Dist. v. Werner, 43 Iowa 643, 644; Hunter v.Citizens Sav. Tr. Co., 157 Iowa 168. The judgment lien does not attach to the land, but to the judgment-debtor's interest in it, and if that interest is subject to any infirmity or condition by reason of which it is eliminated or ceases to exist, the lien attaching thereto ceases with it. *Page 1389
As heretofore noted, the instant case arises out of a sale on a mortgage foreclosure and a subsequent redemption by the grantee of the judgment-debtor. The facts are controlled by Moody v.Funk, supra.
The evolution of the judicial interpretation of the principle involved may be traced by a study of the decisions of this court.Hays v. Thode, 18 Iowa 51; Clayton v. Ellis, 50 Iowa 590; Escherv. Simmons, 54 Iowa 269; Harms v. Palmer, 73 Iowa 446; Moody v.Funk, supra; Wells v. Ordway, supra; Co-operative S. L. Assn.v. Kent, supra; Cooper v. Maurer, supra; Witham v. Blood, supra.
Counsel for appellant rely upon the decision in People's Sav.Bank v. McCarthy, 119 Iowa 586, but this case is distinguishable on the facts from the case at bar. In the cited case the plaintiff-bank was the holder of a judgment against Aborns, the legal title holder of the land. Its judgment was junior to that of Marshall Field Co., on which there was a sheriff's sale on general execution. During the year of redemption, the Aborns sold to McCarthy, the defendant, who redeemed, the bank having failed to make redemption. The action was commenced by the bank, to have its judgment declared a lien on the real estate. This court, in decision, recognized the factual difference between that case andMoody v. Funk, supra, and cases of like import, for it is said (page 590):
"In the instant case, neither plaintiff nor its assignor were made parties to any other action, nor have their liens been affected by any decrees, and in these respects are distinguishable from the decisions last cited [Harms v. Palmer,Moody v. Funk, Co-operative S. L. Assn. v. Kent, Wells v.Ordway, etc.] * * * As plaintiff's liens were never divested by virtue of a decree of court, or the execution of a sheriff's deed, and are not barred by any statute, they may be enforced against the lots of defendants acquired subject thereto."
In Moody v. Funk, supra, a first mortgage was foreclosed, and the holder of the second mortgage was made a party defendant. The land was bid in by the first mortgagee for the amount of his judgment. After the expiration of the period for redemption by the junior lien holder, no redemption having been made by the junior mortgagee, the debtor sold the real estate to Moody, who did redeem. The action was instituted by Moody, to quiet *Page 1390
the title as against the holder of the junior mortgage. The only difference on the factual side between the Moody case and the instant case is that here the appellant, Stiles, the junior mortgagee, after the sale on special execution, placed in judgment his mortgage note, and transcripted it to the county where the real estate was situated. It was there held that the grantee of the execution debtor who acquires the interest of his grantor after the right of a junior lien holder is barred by a lapse of time may redeem without removing such bar, and thus perfect in himself title to the land sold.
Appellant Stiles in this case was required to keep his lien alive, and if he suffered that lien to be extinguished by his failure to make redemption, he cannot be heard to say that his mortgage is still a lien on the land, or that the land should be subjected to the payment of the note that the mortgage was given to secure. The appellant Stiles had the right to redeem from the sheriff's sale, and since he has not done so, a court of equity will not allow him to take the benefit of a redemption by one who is under neither a legal nor a moral obligation to pay his claim now in judgment against Ford, the mortgagor. This is the thought and the language of Moody v. Funk, supra. The appellant, Stiles, was a party to the foreclosure action, and was chargeable with notice of the same under the decree. He had the opportunity of redeeming from the sale, but neglected to improve it; and, by permitting a redemption to be made by the grantee of the debtor, he lost the right to enforce his judgment against the property so redeemed. Bevans v. Dewey, supra. See, also, Henry v. Maack,
supra.
A word in conclusion may be said with respect to the Baileys, defendants and appellees herein. It appears that Bishop, the grantee of J.W. Ford, legal title holder and mortgagor, on May 26, 1923, conveyed a one-half interest in said land to said appellees. The applicable principle heretofore stated must inure to these appellees. Bishop purchased Ford's interest in the land after more than nine months had expired from the time of the foreclosure sale, and thereafter redeemed from the special execution sale. Bishop was then the owner of the land, which was completely divested of the lien of appellant's judgment. When Bishop conveyed an undivided one-half *Page 1391
interest in said land to Baileys, appellees, the latter also took the land clear and free of any lien of said judgment.
For the reasons stated, the decree entered by the trial court is — Affirmed.
STEVENS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430077/ | Leaving the intervener's petition for discussion in a later portion of this opinion we first proceed to a consideration of the issues as between plaintiffs and defendants, by all of whom the following facts are conceded: that plaintiffs are the holders of a valid tax deed to the city lots involved, dated April 1, 1935, issued pursuant to a county treasurer's tax sale for general taxes; that at the time of all transactions involved in this case said lots have been within a locality zoned for commercial or business purposes by the zoning ordinances of said city; that said lots are a part of a subdivision designated as *Page 1353
Fair Acres, within the city of Des Moines, the subdivision containing 64 lots; that the person platting the subdivision has conveyed nearly all of the lots, including the two to which plaintiffs claim title under tax deed; that each deed of conveyance by the proprietor of the subdivision contained restrictive provisions, one being that no business or store building shall be placed or constructed on the premises prior to the year 1950; that on June 4, 1935, the defendant city issued to plaintiffs a written permit to erect a one-story frame building upon one of the lots in question to be used as a retail store; that afterwards a written notice, bearing date June 11, 1935, was given to plaintiffs by defendant city informing plaintiffs that by roll call No. 950 passed June 10, 1935, by the city council of defendant city, the building department had been ordered and directed to revoke the building permit issued June 4, and notifying plaintiffs that the permit was revoked and that plaintiffs were to immediately cease all building operations.
On July 10, 1935, plaintiffs brought this equity action now before us, the petition containing the foregoing matters, and praying that the building permit above mentioned be decreed to be valid and binding upon defendants, that plaintiffs be authorized to proceed thereunder with the construction of the building; that the resolution of the defendant city of June 10, 1935, be decreed null and of no force and effect; that defendants be enjoined from interference with the construction of said building in accordance with said permit, and that plaintiffs have general equitable relief. For answer defendants set out a provision in the above mentioned zoning ordinance which recites: "It is not intended by this ordinance to interfere with or abrogate or annul any easements, covenants or other agreements between parties."
The answer further alleged that the building permit which had been issued to plaintiffs would abrogate the covenants and agreements of private parties and the owners of said land, particularly the provision in the various conveyances made by the proprietor of the subdivision that "no business or store building shall be placed or constructed on said lot." Plaintiffs replied denying that said building permit abrogates the covenants and agreements of private parties or the owners of said land, and in support of such denial say that by virtue of their tax deed they have an absolute title unaffected by any restrictive covenants *Page 1354
contained in the chain of title of any previous owner. Thus the issues are narrowed down to a point where plaintiffs and defendants both concede in argument that the question on this appeal is, — Does a tax deed in Iowa operate to cut off a restrictive covenant such as a building restriction imposed by deed in the previous chain of title?
In Crum v. Cotting, 22 Iowa 411, in a general discussion of the character of title conveyed by a tax deed, reference is made to a statement in the text in Blackwell on Tax Titles, wherein the author expresses the view that when a tax is made a charge upon the land alone and no resort is contemplated against the owner or his personal estate, or where the proceeding is strictly in rem, the tax deed will have the effect to destroy all prior interests in the estate and vest the purchaser with a new and independent title. Following an extended discussion the opinion concludes that, by a fair construction of Iowa statutes as a whole, it is intended by them to vest the purchaser with a complete and perfect title to the land, and not with the right and interest only of the former owner, in whose name it was listed, and that there can be no well founded doubt that our revenue law belongs to the class referred to by Blackwell as above set out, to wit, that class in which the tax deed has the effect to destroy all prior interests in the estate, and vest the purchaser with a new and independent title, freed from all liens and encumbrances except so far as especially provided in relation to the school and university funds. While the writer of that opinion states that it was perhaps not necessary in that case to determine the character of the title acquired through a tax deed, nevertheless the opinion has been adopted and followed in the subsequent opinions of this court. In Lucas v. Purdy, 142 Iowa 359, 361,120 N.W. 1063, 1064, 24 L.R.A. (N.S.) 1294, 19 Ann. Cas. 974, it is said:
"All property is held subject to the payment of taxes which are imposed as an incident of sovereignty. City of Davenport v. Ry.,38 Iowa 633; Cooley, Const. Lim., 479. * * * In providing that `the right, title, interest and claim of the state and county' should pass under the deed, the design evidently was to effect a complete transfer of the fee. This was a necessary consequence of the foreclosure of a lien existing against all persons and the logical construction of these statutes. Such is the *Page 1355
purport of the decisions of this court declaring that the tax title is not derivative but original, is not limited to passing the title of him in whose name the land is taxed, but divests all interests in the land and vests in the grantee an independent and paramount title. * * * In Willcuts v. Rollins, 85 Iowa 247,52 N.W. 199, the court observed that: `A tax title is not derivative. If valid, it is a breaking up of all other titles and is antagonistic to all other claims to the land.' * * * In Crum v. Cotting, 22 Iowa 411, the subject is somewhat exhaustively considered, and it was said that the tax deed `operates to destroy all prior interest and vests the purchaser with a new and independent title.'"
In Iowa Sec. Co. v. Barrett, 210 Iowa 53, 230 N.W. 528, the question was again carefully considered and the same conclusion reached. In that case it was held that a tax sale and deed for general or ordinary taxes cut off the lien of unmatured special assessments which had attached prior to the tax sale.
To avoid the holdings above pointed out, defendants cite code section 7109, which provides that all property subject to taxation shall be assessed at its actual value and that in arriving at such actual value the assessor shall take into consideration its productive and earning capacity, if any, past, present and prospective, its market value, if any, and all other matters that affect the actual value of the property. Defendants say that in considering "all other matters that affect the actual value of the property" the assessor should take into account the depreciation in value of a servient tenement in case an easement or restrictive covenant is carved out of that tenement, and should take into account the increased value of a dominant tenement in case that tenement is the beneficiary of an easement or restrictive covenant carved from an adjoining tenement. Defendants assuming that such was the method of assessment that preceded the tax sale to plaintiffs, would conclude that plaintiffs' tax deed cannot convey a property against which there is a covenant running with the land, free and clear of that covenant, because the tax title conveys no more than that property contemplated in the assessment. We cannot concur in defendants' such conclusion because it is not compatible with our general tax system to assume that the assessor took into consideration any question of dominant or servient tenements that might have been revealed had he *Page 1356
searched the title records, nor do we think section 7109 indicates any legislative intent that the state be handicapped in the prompt collection of revenue by the burden of tracing out subdivided or qualified interests and be compelled to seek to hold the various owners responsible according to their respective interests. Quite the opposite is true. The land is assessed as land. The assessment is not against scattered and divided titles. The land alone is assessed. Lucas v. Purdy, 142 Iowa 359,120 N.W. 1063, 24 L.R.A. (N.S.) 1294, 19 Ann. Cas. 974. It might be added that nothing in the record indicates that in this case the assessor did attempt to take into consideration any questions of depreciation or appreciation of servient or dominant tenements. Nor does defendants' argument make at all clear the manner in which any distinction between dominant and servient tenements could have been made, in view of the fact that the lots stood in the same relative status, one to another.
Apparently the identical question involved in this case was before the court in In re Hunt and Bell, 34 Ont. L.R. 256, 24 D.L.R. 590. It was held that a covenant running with the title restricting erection of a building within a certain distance from the street was extinguished by a tax sale and deed. This followed from consideration of the provision of the Assessment Act that the taxes on any land are a special lien upon it having priority to every claim, privilege, lien or encumbrance of every person excepting the Crown. In Hill v. Williams, 104 Md. 595, 65 A. 413, an easement for private alley was held to have been extinguished by a tax sale and deed. In the case at bar there seems no room for any exception to the firmly established law of Iowa as to the character of a sale for general taxes. When these lots were assessed as so much land the state had a lien on all this real estate regardless of titles or interests that individuals may have had. The sale, a species of enforcement of this lien, conveyed all interests therein, no one being able to withhold any interest in said real estate from such lien and sale. The rights which other lot owners may have had under the restrictive covenants have nothing exceptional in character from any other interest subservient to the lien of the state. It follows inevitably that the tax deed extinguished any restrictive covenants that there were in the chain of title of previous owners.
The district court having found in accordance with our conclusion that the building restrictions were extinguished, and *Page 1357
therefore there were no valid grounds for revoking the permit, entered a decree that the defendants be enjoined from interference with the construction of said building in accordance with the building permit issued June 4, 1935, and finding that such building permit was valid and the attempted revocation null and void. We find nothing in the record that would lead us to disagree with this conclusion of the trial court, it being well established in the evidence that the plaintiffs paid the city the fee for the building permit, which fee is still retained by the city so far as the record shows, and in addition paid out and incurred different sums and amounts, partly before and partly after the issuance of the permit as necessary expenses incidental to the construction of the building. We think the situation with reference to the revocation of the permit is ruled adversely to defendants' contentions by the case of Rehmann v. Des Moines,200 Iowa 286, 204 N.W. 267, 40 A.L.R. 922.
Complaint is also made by defendants of the phraseology of the decree so far as it enjoins the city from interfering with the construction of said building. The decree enjoins defendants from interference in the construction of the building in accordancewith the building permit of June 4, 1935. We are unable to find therein infringement upon any of the future powers of legislation of defendant city council as claimed by defendants. We do not have the assistance of any suggestions by defendants of a better method of expression.
The foregoing has to do with the case as made and tried by plaintiffs and defendants. We now discuss the petition of intervention. It is alleged therein that the intervener is the owner of lots in Fair Acres and an interested party because the erection of a store building by plaintiffs would depreciate the value of intervener's property; that plaintiffs obtained their tax deed with full knowledge of the building restrictions; that the tax sale and tax deed were had for the purpose of destroying property of intervener and others, and to avoid the restrictions on said lots; that plaintiffs are not the real parties in interest; that the tax deed is invalid and the law with reference to issuance of tax deeds has not been complied with; that proper notice was not served on the title holders or parties in possession; that the tax assessment was not legal. Upon these allegations intervener prayed that the tax deed be held invalid, and that plaintiffs be enjoined from erecting any business building on the *Page 1358
lots. It would unduly encumber this opinion to recite at length the evidence upon these questions of fact but a review thereof has led to the conclusion that the district court correctly found that intervener had not established the facts on which he seeks relief. There appears to be no necessity to consider the further claim of plaintiffs that in no event could intervener question plaintiffs' title in view of section 7290, Code 1931, the title to the lots not having been in intervener at any time.
Finding no error in the decree of the district court the same is affirmed. — Affirmed.
DONEGAN, C.J., and PARSONS, HAMILTON, STIGER, KINTZINGER, and MITCHELL, JJ., concur.
ANDERSON and ALBERT, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430078/ | On February 23, 1939, plaintiff filed her petition for divorce averring that defendant had been guilty of such inhuman treatment as to endanger her life. Defendant filed a cross-petition grounded on adultery. On May 29, 1939, *Page 423
the cause was tried. The findings of the court were that the evidence did not support plaintiff's claims, but entitled defendant to a divorce upon the cross-petition. A decree was entered accordingly on June 3, 1939, from which plaintiff has appealed.
The propositions relied on for reversal are, first, that the record and proof sustained the charge made in plaintiff's petition justifying a divorce from defendant, and, second, that the record and proof did not sustain defendant's claim of adultery.
The parties intermarried on April 20, 1932. Aside from inconsequential matters neither makes complaint of the other's conduct during the first five years of this relationship. But in 1937 during the summer, defendant, because engaged in carpenter and cement work in Davenport, was compelled to be away from the home the parties were maintaining in Prairieburg. No one was living with them in the home except their child, then about 4 years old. In order that plaintiff and the child might not be alone and unprotected it was arranged that defendant's nephew, one Crowley, would live in the home during defendant's absence. The carrying out of this arrangement resulted in the arising of a mutual and intimate fondness between the man and the woman, Crowley and plaintiff, so environed. That is clearly evident from the record.
After the work in Davenport had ended and defendant was again in Prairieburg, Crowley returned to the home with frequency. The record shows that a number of such visits were during defendant's daytime absences while at work. On these occasions the persons at the home were plaintiff and the child. Witnesses, who happened to come to the home during some of these visits, state that the doors were locked. There were meetings elsewhere. There came a time, seemingly in the latter part of 1937 or early in 1938, when defendant demanded of Crowley and plaintiff that they cease meeting each other. But it availed nothing. The defiant attitude plaintiff displayed with respect to defendant's protests is not without significance. It appears in the record, and without much doubt, that on one occasion *Page 424
plaintiff's statement to her husband was that she would procure a divorce if he did anything, and at another time she replied that defendant could not work any bluff on her, and this despite plaintiff having been told, as the fact appears to have been, that her conduct was becoming a matter of notoriety and comment in the community, reflecting on her child and husband. After February 13, 1939, the parties lived apart, plaintiff taking rooms in a town a few miles distant. There plaintiff and Crowley continued associating, Crowley coming there in his automobile. One of the neighbors testified that Crowley's car was parked where plaintiff had her rooms when the witness went to bed on several different nights, and was parked at the same place when the witness arose in the morning. As an explanation plaintiff offered Crowley's testimony that the car merely happened to be so parked, and that he spent the nights elsewhere. Of this testimony there appears to be no corroboration. That clandestine meetings were frequent is a necessary finding from the record. Relating the testimony in detail would serve no purpose as there is no substantial dispute on that phase of the controversy. Plaintiff meets the showing with a denial of sexual relations on any of these occasions, she as well as Crowley testifying in support of the denial. And no witness offered by defendant claimed to have actual knowledge that there had been such relations. But there were a number of witnesses who testified they saw plaintiff and Crowley in each other's embrace, two of these happenings, according to the witnesses, having been upon the street at night. Another occasion was described as having been in the home of plaintiff and defendant, where plaintiff and Crowley withdrew from the presence of another couple who had come to the home with them, and repairing to another part of the house remained there for an hour or more. When the couple mentioned sought plaintiff and Crowley they were found with arms about each other. Another witness described certain intimacies upon a daybed that entailed the taking of markedly broad and libidinous liberties by both plaintiff and Crowley with the person of the other. *Page 425
These are by no means all the showings with respect to there having been an adulterous disposition on part of plaintiff as well as Crowley. Some portions of this testimony plaintiff and Crowley as witnesses deny, particularly the daybed incident. So far as the denials go they are of course to be given due consideration. But the record must be taken together, for the circumstances mutually interpret each other, and when combined may lead to a just conclusion. Taken separately, they may be without meaning. Inskeep v. Inskeep, 5 Iowa 204. Though we have viewed the record with the guardedness a controversy of this nature deserves, we are constrained to say that an adulterous disposition on the part of plaintiff as well as Crowley is an unavoidable finding of fact. Their refusal to conduct themselves in conformity with the conventions of society, following defendant's demands that they do so, affords in considerable measure an appraisal of their bent. For in that refusal is inherent an abandonment that eliminates reasonable probability that there was mere indiscreetness and innocent friendship, as counsel for plaintiff would have us view the record. This was not a case founded on an unsavory entrapment. Nor does the controversy depend upon a single happening where the identification of the party charged is in doubt, as in Matheny v. Matheny, 191 Iowa 337, 182 N.W. 375. On the contrary the circumstances and happenings were all of the accused parties' own devising. The opportunities for doing in the manner they were disposed were of their own contriving and they persisted in their enterprise. The district court found that the charge of adultery had been proven. We are convinced this conclusion is sufficiently supported by the whole record, after having given all possible weight to the denials and explanations the plaintiff has made. Defendant was entitled to a divorce.
The proposition that plaintiff should have been granted a divorce on the ground set out in her petition requires but passing notice. The defendant's conduct of which plaintiff complains was concurrent with her own affair with Crowley. But despite what defendant's conduct may have been, the record lacks the necessary showing that plaintiff's life was thereby *Page 426
endangered or even her health impaired. The decree of the trial court is affirmed. — Affirmed.
HAMILTON, C.J., and SAGER, HALE, MITCHELL, MILLER, OLIVER, and BLISS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430112/ | Plaintiff's allegations, so far as material, are, in substance, that plaintiff in 1922 became the owner of stock in the First National Bank of Perry, which was then the holder of bonds of the Union Mortgage Company. These bonds were secured by collateral deposited with the Central State Bank as trustee. Defendant was director and counsel for the Union Mortgage Company. Defendant, contrary to the agreement by which the collateral was deposited in trust, withdrew collateral from the trustee and used it to pay debts of the Union Mortgage Company upon which he was security. (The facts concerning the bonds of the Union Mortgage Company the deposit of collateral and the withdrawal of the collateral are set out in the opinion in Richardson v. Union Mortgage Company,210 Iowa 346, to which plaintiff's amended pleadings refer.) Plaintiff alleges that in consequence of such withdrawal and the re-resulting depreciation in value of the bonds of the Union Mortgage Company the capital stock of the bank became impaired, to restore which an assessment was levied upon the stock. Plaintiff alleges that he was unable to pay this assessment and lost his stock. Plaintiff sets out that the bank recovered from the trustees under the decision in Richardson v. Union Mortgage Company judgment for its loss on the bonds, and that the judgment *Page 407
has been paid, but alleges that the damage specially suffered by him had long since accrued and the payment in no way operated to compensate him for his special damage.
The bank, not its stockholders, owned the bonds of the Union Mortgage Company. The alleged wrong perpetrated by the defendant was the withdrawal of the collateral deposited and pledged as security for the payment of those bonds. The injury was to the owner of the superior beneficial interest in the collateral: that is, the owner of the bonds — the bank. The damage from the injury was the damage to the bank. There was but one wrong, one injury, one liability for the injury. The alleged injury was not, in the eyes of the law, an injury to plaintiff. The loss which he suffered from the injury (the loss of his bank stock resulting from an assessment which he was unable to pay) was remote and consequential. The cause of action for the injury was in the bank. When the cause of action accrued plaintiff was a stockholder. It was then the bank that was entitled to sue upon it. If the bank, or its officers, had refused to sue for the injury, the plaintiff on taking the necessary preliminary steps would have been entitled to sue, but his action would have been brought only for and in behalf of the corporation of which he was a stockholder and for the benefit of the corporation, though resultantly and ultimately for the benefit of all stockholders alike. The bank, however, has not only not refused to sue, but has sued, and has recovered. The cause of action for defendant's alleged wrong has been satisfied. Under well settled principles the plaintiff has, as stockholder, suffered no legal wrong and has no cause of action. Stinnett v. Paramount F.-L. Corporation (Tex.), 37 S.W.2d 145; Brodsky v. Frank, 173 N.E. 775,342 Ill. 110; Stephan v. Merchants Collateral Corporation, 256 N.Y. 418, 176 N.E. 824; Hirshberg v. Appel (Mass.), 164 N.E. 915; 14 C.J. 924 et seq.
The case is not one outside the purpose and reason of the separation of the legal entity of the corporation from that of the stockholders. It is not necessary to disregard the separate corporate entity in order to prevent fraud or imposition or to enforce a superior equity. The recognition of the corporate organization here will not defeat public convenience, result in wrong, fraud, or crime. No reason or purpose appears for disregarding the corporate organization. 14 C.J. 59 et seq.; *Page 408
Boatright v. Steinite Radio Corporation, 46 F.2d 385; Pierce v. National Bank, 13 F.2d 40; Hamilton Ridge Lbr. S. Corp. v. Wilson, 25 F.2d 592; Carozza v. Federal Finance C. Co. (Md.), 131 A. 332, 338. — Affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430117/ | One Herbster owned 168 shares of the capital stock of the Darrow Trust Savings Bank of New Hampton, Iowa. He died testate in August, 1917. By his will he bequeathed 68 shares of said capital stock to his widow, and 100 shares to his son, Wesley Herbster. He devised certain real estate to each of said parties. The will provided that the property left to the son should be turned over to testator's wife, to be held by her in trust for the said Wesley until he should arrive at the age of 28 years, when the trustee was to turn it over to him. The widow remarried, and she and her husband are plaintiffs and appellants in this action. On July 23, 1925, the Darrow Trust Savings Bank was closed, and the appellee was duly appointed receiver of said bank. One Kaster was the state examiner in charge of the said bank after it closed, and, as *Page 299
we understand the record, was acting under orders of the appellee as receiver in collecting and securing the assets of said bank. In September, 1925, an assessment of 100 per cent was levied upon all of the outstanding stock of said bank. Shortly thereafter, the note in suit was executed by the appellants, and delivered to said Kaster. The note was secured by certain collateral securities, a portion of which belonged to the appellant Matilda, and a portion to her son, Wesley. The note was also secured by mortgages upon the appellants' homestead and upon certain real estate belonging to Matilda, located in South Dakota. Enough has been collected by the appellee upon the said securities so pledged to pay the amount of the assessment of $6,800 levied against the stock owned by the appellant Matilda. After said note had been given, the appellants notified the appellee that they repudiated the same, and refused to pay any portion of said note except the said $6,800.
I. Appellants contend that the said note and mortgage were obtained from them by duress, and that because thereof, the same should be vacated, set aside, and canceled. The appellant Matilda is a woman 51 years of age, had been educated in 1. BILLS AND the public schools through the eighth grade, had NOTES: worked in her father's store as a clerk, and execution: after her husband's death, had served as a duress: director in said bank, and had attended meetings evidence. of said board of directors. On September 2d, she had suffered an injury from an automobile accident, that had required the attention of a physician, and on September 23d, at the time the note was given, was still suffering pain in connection with said accident. Kaster, the bank examiner, telephoned her to come to the bank for a conference with regard to the matter of said assessments against her stock and that of her son, and in response to said telephone call, Matilda and her husband went to the bank, where they remained for several hours, before the note and the assignment of securities were executed and delivered. At said time, Matilda had a safety deposit box in said bank, which contained about $25,000 worth of securities; and it is contended that the examiner refused to allow her to remove said box or the securities therein contained until the said note and mortgages had been executed and delivered. The attorney for the receiver was called into the conference, and there is evidence to the effect *Page 300
that he advised the appellants that, if they gave the note and securities, it must be of their free will. The evidence is in direct conflict as to much that was said and done during the transaction at the bank. It is unnecessary to relate it. The burden rested upon the appellants to establish that such duress was exerted as rendered the instruments void in the hands of the appellee. We think it must be held, under this record, that the appellants have failed to carry the burden which the law imposes upon them in this regard. Mere advice, argument, importunity, suggestion, or demand is not sufficient to constitute such duress as to vitiate an instrument duly executed by competent persons who are fully advised regarding the transaction in which they are engaged. The appellant Matilda was accompanied by her husband, who was present during all of the transactions. She had counsel living in the same city, and no obstacle was placed in the way of her obtaining independent advice. On the contrary, there is evidence tending to show that she was admonished that she should obtain such advice before executing the papers. The record does not present such a case as would justify us in reversing the action of the trial court in holding that the appellants had failed to establish their claim of duress and compulsion in the execution of said instrument. Regarding the law applicable to such a situation, see King v. Williams, 65 Iowa 167; Cantonwinev. Bosch Bros., 148 Iowa 496; Galusha v. Sherman, 105 Wis. 263
(81 N.W. 495); Layer v. Layer, 184 Mich. 663 (151 N.W. 759).
II. Appellants contend that the said note and mortgages were executed without consideration, as to the amount of said note which represents the assessment against the minor, Wesley. There is evidence tending to establish the fact that 2. BILLS AND the bank examiner was threatening to institute NOTES: suit to recover said assessment. The assessments considera- were due and payable on demand. By the execution tion agree- of said note, the appellant Matilda obtained an ment to pay extension of time on her own indebtedness for a another's period of six months. The extension of the time debt. of the payment of the indebtedness due from Matilda was such a consideration as would support her promise to pay the obligation of her son, Wesley. 12 Corpus Juris 324. The question as to whether or not Matilda, as trustee of the property of her minor son, Wesley, had *Page 301
power or authority to bind his property by the execution of mortgages, or the assignment of the same as collateral security for said indebtedness, is not before us. She is not bringing' this action as trustee for and in behalf of Wesley, or seeking to recover in this action any of his property, or protect any personal interest the said Wesley may have. She is seeking solely to set aside said note and assignment of securities as her personal obligation. We are not called upon to determine in this action the question of whether or not a minor may be held personally liable for an assessment on stock in an insolvent bank. The fact is that a claim was made that there was liability for said assessment on said stock which stood on the stock book of the bank in the name of the said Wesley. The appellant Matilda did not purport to execute said note as trustee of said Wesley, or as binding upon him or his property. The representative, of the superintendent of banking was threatening at the time to bring suit to enforce the assessment against the stock held in the name of the minor. The execution of the note avoided the bringing of any such suit. The appellant executed the note in her individual capacity, and the extension of the time of payment of her own obligation and the forbearance to sue on the claimed liability of the minor, Wesley, furnished such consideration as would support her promise to pay the assessment on the stock of her son, even though there was no legal liability for such assessment on the part of her son, it appearing that the claim for such liability was made in good faith. First Nat. Bank v.Browne, 199 Iowa 981, 984, and cases cited. Under well recognized rules of law, it must be held that there was consideration for the appellants' promise, as evidenced by the note in suit. There is no claim of any partial failure of consideration. As bearing on the question, see Blake v. Robinson, 129 Iowa 196; Cone v.Cone, 118 Iowa 458; Harris-Emery Co. v. Howerton, 154 Iowa 472. Neither was there any mutual mistake in regard to the subject-matter that would render the note void.
III. Appellants contend that they are entitled to a decree as prayed, because of an election of remedies by the appellee which 3. ELECTION OF bars liability upon said note. This claim arose REMEDIES: out of the fact that, after the note was given, non-incon- the appellants repudiated it, and thereafter the sistent receiver commenced an action in the district action. court *Page 302
against said Wesley, and made the appellant Matilda, as guardian of said Wesley, a party defendant in said action. It was later discovered that the said Matilda was not guardian of the said Wesley, but had been discharged as such, and was acting in his behalf solely as trustee, under the terms of the will of her former husband. When this was discovered, the action which had been commenced by the receiver against the said Wesley was dismissed without prejudice. In this connection it is to be observed that the said Wesley is not a party in any way to this action, either personally or by representation. The note involved in this case was signed personally by each of the appellants. An action on said note, if brought by the receiver, would not necessarily be inconsistent with an action against Wesley or his legal representative, to recover on the stock assessment against him. In Zimmerman v. Robinson Co., 128 Iowa 72, we said:
"It not infrequently happens that for the redress of a given wrong or the enforcement of a given right, the law affords two or more remedies. Where these remedies are so inconsistent that the pursuit of one necessarily involves or implies the negation of the other, the party who deliberately and with full knowledge of the facts invokes one of such remedies is said to have made his election, and cannot thereafter have the benefit of the other. To the proper application of this rule at least three things are essential: (1) There must be in fact two or more concurrent remedies between which the party has the right to elect; (2) the remedies thus open to him must be inconsistent; and (3) he must, by actually bringing his action, or by some other decisive act, with knowledge of the facts, indicate his choice between these inconsistent remedies. It follows necessarily from this rule that, if the party has in fact only one remedy, but, in the mistaken belief that he has another, attempts to enforce it, the doctrine of election is inapplicable; for no choice was ever open to him. Where either of two remedies are available, there may be a tactical advantage to be gained by pursuing one, rather than the other; but in a legal sense, no mistake is committed if either be chosen."
In Farmers Merch. Bank v. Wood Bros. Co., 143 Iowa 635, at 645, we said: *Page 303
"The act of a secured creditor in proceeding against his debtor to enforce payment of a just claim is not in any manner inconsistent with his pursuit of any proper remedy against a third person who wrongfully converts or destroys his security."
See, also, Home Sav. Bank v. Otterbach, 135 Iowa 157;Bossingham v. Syck, 118 Iowa 192; Courtney v. Courtney, 149 Iowa 645. In this case the parties to this action are not the same as would be the parties in an action brought to recover from Wesley, or from his trustee or legal representative. The obligations growing out of this note are not identical with the obligations that would arise from an assessment against Wesley. Under well established rules, we think it is clear that the bringing of said action was not such an election of remedies as renders the note in suit void or unenforcible.
IV. Appellants contend that, by reason of the matters and things herein set forth with regard to the bringing of the action against Wesley, the appellee has waived the right to enforce said note. As we have pointed out, the bringing of the action against Wesley and the dismissal thereof did not constitute an election of remedies, nor did it constitute a waiver on the part of the receiver of the right to enforce the note in suit against the makers thereof.
Upon a careful review of the entire record, we reach the conclusion that the appellants have failed to establish their contention that the note in question should be vacated and set aside. The decree of the trial court must, therefore, be, and it is, — Affirmed.
STEVENS, C.J., and EVANS, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430119/ | On April 4, 1938, the grand jury in the district court of Iowa in and for Mahaska county returned an indictment against the defendant charging him with the crime of false uttering of a bank check contrary to the provisions of section 13047, 1935 Code.
Section 13047 reads: "Any person who with fraudulent intent shall make, utter, draw, deliver, or give any check, draft, or written order upon any bank, person, or corporation and who secures money, credit, or thing of value therefor, and who knowingly shall not have an arrangement, understanding, or funds with such bank, person or corporation, sufficient to meet or pay the same, shall be guilty of a felony, if such check, draft orwritten order shall be for the sum of twenty dollars or more, and shall on conviction thereof be punished as in section 13045, andif such check, draft or written order be for less than twentydollars, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by fine not to exceed one hundred dollars, or by imprisonment in the county jail not to exceed thirty days." (Italics supplied.)
The defendant entered a plea of not guilty. At the close of the State's case the defendant filed the following motion for a directed verdict:
"1. That the evidence in this case shows that on the 27th day of December, 1937, the defendant, Charles Dillard, executed and delivered the check which is known as Exhibit `A', in the sum of $30.00, payable to Richmond Taxi Co., and that at the same time he owed an account to the Richmond Taxi Co., in the sum of $28.00, and that he received $2.00 in cash for said check, and that the account against the said Charles Dillard in the sum of $28.00 was to be paid.
"2. That the only thing of value which the said Charles Dillard received from the Richmond Taxi Co., or William Richmond was the sum of $2.00 in cash.
"3. That the gist of the offense of obtaining money by false pretenses, or by giving a bad check, is the amount of property *Page 917
or money which the defendant received from the prosecuting witness, or the party to whom the check was made payable, and the undisputed evidence in this case shows that the only amount which the defendant received was the sum of $2.00, and that the obtaining of said money would constitute a misdemeanor, and that the same is not an indictable offense, under the statute, and that the defendant could be guilty of no greater crime than a misdemeanor, and that this court has no jurisdiction to try the same, but that same should be prosecuted in a Justice of the Peace Court.
"4. That there is no showing that the defendant herein obtained anything except $2.00 of value for the reason he could not be prosecuted for the payment of the account, and that the only property or money of value that the defendant obtained, was the sum of $2.00.
"5. That upon the entire record in this case, if the case is submitted to the jury, and the jury should return a verdict of guilty, as charged in the indictment, that the defendant would have to be punished for the commission of a misdemeanor, and not of a felony.
"6. That if this case was submitted to the jury, and the jury should return a verdict of guilty, it would be the duty of the Court to set the same aside on motion, for the reason that the evidence shows that only a misdemeanor has been committed, and upon the entire record in this case, no judgment of guilty should be permitted to stand."
The trial court sustained the motion for a directed verdict and the jury returned a directed verdict for the defendant. Judgment was entered on the verdict and defendant discharged. The State appealed.
On December 27, 1937, on which date the defendant was indebted to the Richmond Taxi Company in the sum of $28 the defendant drew a check on the Iowa Trust and Savings Bank payable to the order of Richmond Taxi Company in the sum of $30 which he delivered to the company for which check the defendant received the sum of $2 in cash and the balance of the amount of the check in the sum of $28 was to pay the amount owed the payee. The defendant did not have an account with the drawee bank nor an arrangement or understanding with the *Page 918
bank for payment of the check. The payee presented the check to the bank for payment and payment was refused.
It thus appears that the thing of value the defendant received for the $30 check was the sum of $2.
Article one, section eleven of the Constitution of the State of Iowa provides that all offenses less than felony and in which the punishment does not exceed a fine of $100, or imprisonment for 30 days, shall be tried summarily before a Justice of the Peace, or other officer authorized by law, on information under oath, without indictment or the intervention of a grand jury, saving the defendant the right of appeal. Code section 13557 is declaratory of the jurisdiction of justices of the peace created by the constitution.
The construction placed on section 13047 by the defendant is, as disclosed by his motion for a directed verdict, if the money or thing of value secured by uttering the check is the sum of $20 or more, the crime is a felony and the district court would have jurisdiction of the offense, but, if the value of the thing received by the person who uttered the check is less than $20 the crime is a misdemeanor, not indictable, and triable only to a justice of the peace; that because the defendant obtained less than $20 for the $30 check the offense was a misdemeanor only and hence the district court was without jurisdiction, that is, the defendant contends that it is the amount of money or worth of the thing of value received for the check and not the amount of the check that determines the grade of the offense.
[1] We do not agree with the construction placed on Section 13047 by the defendant. The section states that any person who falsely utters a check shall be guilty of a felony if such check is for the sum of $20 or more and shall on conviction be punished as under section 13045. In clear, unequivocal language the statute makes the offense a felony if the check is for the sum of $20 or more and plainly reveals the intention of the Legislature to make the amount of the check and not the value of the thing received in exchange therefor determine whether the offender is guilty of a felony or misdemeanor. While it is necessary that he who utters a cheek must receive something of value in exchange for it, the fact that the thing received is disproportionate in value to the amount of the face of the check, and worth less than $20, does not make the offense a misdemeanor. *Page 919
The check being in the sum of $30, the defendant was guilty of a felony and the trial court erred in holding that the district court was without jurisdiction and in directing a verdict for the defendant.
The defendant relies on State v. Marshall, 202 Iowa 954,211 N.W. 252, and Conklin v. Hollowell, 203 Iowa 1374, 214 N.W. 717. Each of these cases involved a consideration of section 13047, 1924 Code, enacted by the 37th General Assembly, chapter 268, which section was substantially different from section 13047 as found in the subsequent codes. Section 13047, 1924 Code, provided that any person who uttered any check and who secured a thing of value therefor without an arrangement or funds with the bank shall be guilty of a misdemeanor, and the court correctly held that as the Legislature had declared an offense under said section a misdemeanor the district court had no jurisdiction of the offense.
The case of State v. Marshall, supra, also held that the Legislature by enacting section 13047, 1924 Cole, carved out of section 13045 a lesser offense and a prosecution for false uttering of a check must be brought under section 13047 and not under section 13045 which makes the obtaining of property by false pretenses a felony. After this decision, the offender, regardless of the amount of the falsely uttered check, would only be guilty of a misdemeanor under section 13047. The Marshall case was decided in December, 1926. The Forty-second General Assembly which convened in January, 1927, remedied the situation by repealing section 13047, 1924 Code, and enacting as a substitute therefor the present Code section 13047 which makes the grade of the crime depend on the size of the check, which, if for the sum of $20 or over, is a false pretense constituting a felony, as is a false pretense made within the purview of section 13045.
[2] The case must be reversed because of the erroneous ruling of the trial court on the motion for a directed verdict. This being a criminal case, the defendant is not affected by this reversal. — Reversed.
SAGER, C.J., and ANDERSON, DONEGAN, HAMILTON, KINTZINGER, and MILLER, JJ., concur. *Page 920 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430125/ | On November 15, 1923, the plaintiff was in the employ of the defendant, as the engineer in charge of its pumping plant. He had been engaged in such employment for the seven years preceding. On the morning of November 15th, he notified the 1. MASTER AND chairman of the waterworks committee that he SERVANT: would terminate his services that evening. Workmen's Pursuant to such notice, the committee Compensation immediately made arrangements with one Seibert, Act: to take the job thus to be vacated by the termination plaintiff. The plaintiff operated the engine and of pumps until 7:15 P.M., at which time he had the employment. tanks filled. At that hour, he left the plant for home. On the way home, he met Seibert, and advised him where he would find the key. Under plaintiff's contract of employment, he was furnished with a residence near the plant, and with a place to keep his cow and his portable garage. He had vacated the residence on November 15th, and had moved his family into another house down town. This latter was the residence to which he came, after leaving the plant at 7:15 P.M. There still remained upon his employer's premises his cow, his portable garage, and a car therein, and his tools, consisting of a sledge, a screwdriver, and three wrenches. He testified in this proceeding as follows:
"My injury occurred on the 16th day of November, 1923, and my employment with the city continued up until the 15th day of November, 1923. I quit out there the 15th day of November, 1923, about 7:15. I notified Mr. Whitehead in the forenoon of the 15th. He was a member of the waterworks committee of the city council. I had never notified anyone, prior to that time, that I would quit on the 15th. My pay was cut, and I wasn't notified until the day it was taking effect; so I never resigned or notified the city that I would resign my place until the forenoon of the 15th. And I then notified them that I would quit that evening."
Upon the foregoing testimony of the plaintiff himself, the defendant predicates its contention that the relation of employer and employee between plaintiff and defendant was fully terminated on the evening of November 15th. The accident under consideration occurred on the morning of November 16th. The plaintiff returned to the plant at eight o'clock that morning, solely for the purpose of getting his tools. He found Seibert *Page 1173
there, and found him in trouble with the machinery. He was unable to start one of the pumps. This pump had a defective valve, which required a peculiar manipulation in order to start it. This defect was explained by the plaintiff to Seibert. Seibert requested the assistance of the plaintiff to start the pump. He went into the pump house and into the pit where the pumps were located, for the purpose of rendering such assistance. While engaged in such attempt, he was accidentally caught in some gearing, and lost his left arm as a result. The tools which plaintiff left at the pump house on the evening of November 15th were his personal property, and the necessary tools which he used in the operation of the plant. He testified that he left them there on that evening so that they might be used in case of necessity. So far as appears, they were the only tools at the plant which were available for use at the time the accident occurred, on the morning of November 16th. The purpose of the plaintiff in going to the plant on the morning of November 16th was solely to get his tools and to make preparations for removing the rest of his property, and incidentally to milk his cow.
The trial court decided the case solely on the ground that a fact question was involved, and that the order of the industrial commissioner was conclusive on the court. If there is a disputed question of fact, the decision of the commissioner is binding on the court. The conclusions of law of the commissioner on undisputed facts are, however, proper questions for the determination of the court. Three questions appear to be involved: (1) Was the employee still within the scope of his employment, at the time of the injury, when he returned to get his tools? (2) Did an emergency arise at the time which called for assistance to the new engineer, and clothed him with sufficient authority to bind the city in employing the workman at that time? (3) Is there evidence of such a custom among engineers that the outgoing engineer shall assist the incoming one as made the workman an employee at the time?
I. Was appellee still an employee under his original employment?
At the time the injury occurred, Code Supplement of 1913 was in force, and Section 2477-m16, Paragraph b, is as follows:
"`Workman' is used synonymously with `employee,' and means any person who has entered into the employment of, or *Page 1174
works under contract of service, express or implied, or apprenticeship for an employer."
In Knudson v. Jackson, 191 Iowa 947, we considered this paragraph of the statute in considering the meaning of the word "employee," and in said case reviewed the authorities at length, and held that we cannot enlarge the provisions of the statute, and that an employee, within the meaning of this act, "in order to come under this statute, must have a contract of service, express or implied, with the employer who is sought to be charged with liability." The question at once, then, in the case is whether or not the appellee, at the time of the injury, to wit, on November 16th, had a contract of employment, express or implied, with the appellant. According to his own testimony, he had quit on the 15th of November. He had notified the waterworks committee of the city council, in the forenoon of that day, that he would quit, and he turned in his key. There is no claim that he was ever employed by the city council thereafter. He came to the place of his employment for a purely personal reason, namely, to secure his tools that were located on the premises. He did not come there to assist the new engineer or to do any work. At the request of the new employee, he attempted to assist him in the operation of the machinery on the place. This was purely voluntary on his part. There is no intimation in the record that any person authorized to engage employees for the city even so much as knew that the appellee was on the premises, and there is no suggestion that anyone in behalf of the appellant requested, or in any manner authorized, the appellee to assist the regular employee of the appellant who was then in charge of the work.
The appellee places great reliance upon the following quotation from 1 Honnold on Workmen's Compensation 373, where the rule is stated as follows:
"An employee is under the protection of the Compensation Act even after his discharge, providing he be injured upon the premises of the employer while remaining there for reasons connected with his former employment."
This quotation from Honnold is supported by a single case in the footnote, to wit, Goering v. Brooklyn Min. Co., 2 Cal. I.A.C. Dec. 124. In that case, an employee, a few minutes after being discharge, was cleaning up his work, preparing to leave *Page 1175
the premises. He was injured by an accident, and it was held that such accident occurred in the course of his employment, and that he was entitled to compensation. Neither the text nor the authority sustaining it is broad enough to support the appellee's contention in the instant case. It is obvious that a different situation is presented where, without the knowledge of the former employer, a discharged employee, the next day or later, after he has left the premises and terminated his contract of employment, re-enters the premises for purposes of his own, and voluntarily assists the new employee in performing his work.
Reliance is also placed upon the case of Molloy v. South WalesAnthracite Colliery Co., 4 B.W.C.C. 65, C.A. In that case, the workman was a colliery repairer. He was ordered to do certain work which he declined to do, and left off work. He returned later, and obtained from the manager leave to go down into the mine and bring up his tools; and while in the mine for said purpose, was injured by a falling stone. The lower court found that the manager, on dismissing Molloy, ordered him to fetch his tools, and that the accident arose out of and in the course of his employment. The record in the case shows that, upon oral submission in the appellate court, counsel for the employer merely asked "that the case should be sent back, in order that the judge may consider whether all the facts are before this court, or a ruling by this court that, if the evidence in fact was given substantially as the employers say it was, as in fact appears on the judge's notes, then the judge has misdirected himself in holding that the accident `arose out of and in the course of' the man's employment." They further stated:
"What my clients desire is that the facts may be stated in such a way that our real case may be before this court."
The court, considering the case orally, stated, "I am afraid we can do nothing for you." On motion, the appeal was dismissed. The case cannot be deemed an authority sustaining appellant's contention that the appellee in the instant case was the employee of the appellant at the time of the injury.
It is contended that this case is ruled by our holding inMitchell v. Consolidated Coal Co., 195 Iowa 415. In that case, the injured workman was a miner, and it appeared that he was discharged about November 10th. We noted that there was considerable confusion in the testimony, and that it was evident *Page 1176
that it was his intention to quit. It also appeared in that case that there was a prevailing custom in such employment, known to all parties, by which a miner who was quitting his job, as a condition of receiving pay for work done, was "required" to "square up" his room by "shooting off the corners" and "loading out" the coal which is down or which results from squaring up his room, and regularly until this is done and his work measured, his tools remain in the mine. It further appeared in said case that, when Mitchell was discharged, the foreman "told him to square up his place and take his tools out." It was while he was obeying these specific instructions that he was injured. His discharge was not accomplished until he had obeyed these definite orders given by his employer. No such situation is presented in the case at bar. The plaintiff herein had voluntarily quit. He had accomplished all the work he was required or expected to do under his employment. He had no orders whatever that required him to ever return to the premises. His duties had fully terminated, and he had sought other employment. The defendant employer, through its proper officers, had no notice even of any intention on his part to return to the premises; much less had it given him any directions, as in the Mitchell case, to do certain work before
his discharge would be effective. The situation was altogether different from that in the Mitchell case, where the employee was acting under the specific directions of the employer before his discharge became effective. It also appeared in the Mitchell case that, according to an established rule or custom, the foreman allowed a quitting workman a car with which to bring his tools to the surface. It appeared in that case that, at the time of the injury, the workman was employed in this manner. We held that, under the record, the injured man was not a trespasser in the mine, and that the relations of employer and employee were not dissolved. We held that the question involved at this point was one of fact, and that the finding appealed from would not be set aside except when it clearly appeared that it was without substantial support in the testimony. The case is not controlling, under the facts in the instant case. The matter of custom is referred to later.
II. If it be assumed that an emergency existed, and that the new engineer had implied authority to engage the appellee to assist him at the moment (matters which we do not determine), *Page 1177
in such event the case then must fall under the 2. MASTER AND plain provisions of the statute, as being a SERVANT: casual employment. Section 2477-m16, Code Workmen's Supplement, 1913, as amended by Chapter 270, Compensation Section 10, of the Acts of the Thirty-seventh Act: General Assembly, was in force at the time of employment this injury; and under said section as so in amended, in defining the word "workman," certain emergency. classes were excepted therefrom; and one provision of the statute is, "except a person whose employment is purely casual." We had occasion to consider the construction of the term "whose employment is purely casual," in Bedard v.Sweinhart, 186 Iowa 655. In that case, the claimant was employed to make repairs in shingling a house, and while he was engaged on that job, the employer requested him to fix a screen door and cellar window at another place. While doing this, he discovered that some cement was needed on the house that he was then shingling, and proposed that the employer get some cement and he would put it on. While engaged in making this repair, he received the injury complained of. We held that this was a casual employment, and denied recovery. The case was approved and followed in Herbig v. Walton Auto Co., 191 Iowa 394, where the authorities are reviewed at length. It would seem that, even if the new engineer had implied authority to engage the claimant to assist him, the employment was "purely casual," and came within the express provision of the statute which excludes recovery in such case.
III. The appellee claims that, at the time of his employment and service, there was a general custom in that locality between engineers and their employers that, upon the termination of the service of the employed engineer, it was his duty to impart reasonable instruction and extend reasonable aid to his successor in the operation of the plant. The industrial commissioner made no finding that there was such a rule and custom prevailing in that locality. His decision does not rest upon any proof of custom. In fact, he does not refer to the question in his award, so we have no decision whatever upon this question, and hence nothing to review. In any event, he could not have found that such was established under the record in this case. Furthermore, there is no contention that, if a custom existed, as claimed, it was known to the appellant, or that it was so general that appellant was bound to know of it. In the Mitchell case, *Page 1178
the discharged workman had certain duties to perform in direct connection with finishing or cleaning up his work, under specific orders. His employment and orders included this very work, and while engaged in it, he was injured. It was also shown to be the custom that he should do this work. Not so in the case at bar. The appellee had quit the employment the day before the injury. He had surrendered his key to the premises. He was not there to complete any unfinished work. He did not go there at all for the purpose of aiding the new engineer. He went there solely for his own private purpose, — to get his tools. While he was there, the new engineer asked him to assist him in starting the pump. This he tried to do, and was injured.
However deplorable the accident, the claimant cannot recover unless he comes within the class provided for by the statute. There is no disputed fact question in the case. Upon the facts as found by the industrial commissioner, the claimant was not within the coverage of the statute.
The judgment must be — Reversed.
STEVENS, De GRAFF, ALBERT, and MORLING, JJ., concur.
VERMILION, J., takes no part.
EVANS, C.J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430127/ | We have no argument for the appellee. The reason for such failure becomes rather apparent upon an examination of the record. The plaintiff is the holder of a life insurance policy in the defendant company. In addition to death benefits provided by said policy, there are contained therein certain other so-called "provisions as to total and permanent disability." The following quotation from the policy is a sufficient indication of the character of such provisions:
"Disability Before Age 60: Waiver of Premiums — Monthly Income to the Insured — If the Insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he (or she) is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his (or her) lifetime, and if such disability shall occur at any time after the payment of the first premium on this Policy, while this Policy is in full force and effect and the Insured is less than sixty years of age, and before any non-forfeiture provision shall become operative, the Company, upon receipt of due proof of such disability, will grant the benefits hereinafter specified, dating from the commencement of such disability, or if the proof submitted shall not be due proof of the permanency of such disability but shall be due proof that total disability as defined exists and has existed continuously during a period of not less than ninety consecutive days immediately preceding receipt of such proof,
such disability shall be presumed to be permanent and the Company will grant the said benefits dating from the end of *Page 1124 ninety days from the commencement of the period of totaldisability which has existed continuously to the date of such proof."
Our consideration of the case involves only a construction of the language above set forth. It will be noted that the foregoing provides for certain compensation to be paid to the policyholder in the event of total and permanent disability. Total disability is not compensable thereunder unless it be permanent. Permanent
disability is not compensable unless it be total. Partial disability, though permanent, or temporary disability, though total, is not compensable. In the event of disability, a waiting period of 90 days is provided. If at the expiration of that period due proof is made of total disability for a period of 90 consecutive days immediately preceding presentation of the proof, then a presumption of permanency will be conceded and acted upon by the defendant company, subject to the right of the company to call for additional proofs at a later time. Whenever in the future it shall be disclosed that such disability has ceased to be total or has ceased to be permanent, the liability of the company for further compensation is terminated. No controversy is presented over the facts. These rest wholly upon the testimony of the plaintiff and his physician. According to their testimony, the plaintiff was injured in an automobile accident on the 5th day of January, 1932. He was totally disabled thereby for the time being. He was able to resume his regular occupation on the first day of May, 1932. He claims to recover for the intervening time between January 5 and May. On the 29th of March, 1932, he made proof of these facts to the company. In July, 1932, he made second proofs to the same effect. Following these latter proofs, he brought his action for recovery. The plaintiff construes his policy as an accident policy and as entitling the policyholder to compensation for the time intervening between the original disability and the resumption of his occupation. He takes no account of the question of permanency of the disability nor any account of the termination of the disability as negativing permanency. The provisions of the policy which are vital to the plaintiff are free from ambiguity. In order to be understood, they need only to be read. Similar provisions have been repeatedly considered in virtually all our courts. There is no discord of interpretation thereof. Upon this record, the disability is conceded to have been not permanent. That fact became conceded by the plaintiff before the expiration of 90 days. That fact of itself was fatal to the claim of plaintiff. *Page 1125
The concession by the plaintiff that he is entitled to recover only for 119 days is equally a concession that he is not entitled to recover at all. This is not a case where the plaintiff established a total disability for 90 consecutive days and became thereby entitled to a tentative presumption of permanency of the disability. In such a case the policyholder might collect for a time under the presumption and might lose such right later by subsequent proofs. In this case the fact that the disability was not permanent had become obvious and conceded before the liability of the defendant had even accrued. Its accrual had become impossible before the expiration of 90 days. See Corsaut v. Equitable Life Assurance Association, 203 Iowa 741, 211 N.W. 222, 51 A.L.R. 1035; Hawkins v. John Hancock Mutual Life Insurance Company, 205 Iowa 760, 218 N.W. 313; Hurley v. Bankers Life Company, 198 Iowa 1129, 199 N.W. 343, 37 A.L.R. 146.
The judgment below is accordingly reversed.
CLAUSSEN, C.J., and ALBERT, KINDIG, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4065869/ | 05/13/2015
Cause No. 14-15-00058-CV
IN THE FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
________________________________________________________
HIGHMOUNT EXPLORATION & PRODUCTION, INC.,
AND DOMINION OKLAHOMA TEXAS EXPLORATION
& PRODUCTION, INC.
Appellants,
v.
HARRISON INTERESTS, LTD., DAN J. HARRISON, III,
AND BFH MINING, LTD.,
Appellee.
_________________________________________________________
On Appeal from Cause No. 2009-06060
In the 190th Judicial District Court of Harris County, Texas
The Honorable Patricia J. Kerrigan Presiding
APPELLANTS’ BRIEF
FARNSWORTH & vonBERG, LLP
T Brooke Farnsworth
brooke@fvllp.com
ORAL ARGUMENT State Bar No. 06828000
REQUESTED Bennett S. Bartlett
bennett@fvllp.com
State Bar No. 01842440
333 North Sam Houston Parkway, Suite 300
Houston, Texas 77060
(281) 931-8902 – telephone
(281) 931-6032 – facsimile
ATTORNEYS FOR APPELLANTS
IDENTITY OF PARTIES AND THEIR COUNSEL
The following is a complete list of the names and addresses of all parties to the
trial court's final judgment, or their successors in interest, and the names and
addresses of all trial and appellate counsel:
APPELLANTS: APPELLEES:
EnerVest Operating, LLC, Harrison Interests, Ltd.,
(successor in interest to HighMount Dan J. Harrison, III, and
Exploration & Production LLC), and BFH Mining, Ltd.
EnerVest Energy Institutional
Fund XIII-A, L.P., EnerVest Energy
Institutional Fund XIII-WIB, L.P., and
EnerVest Energy Institutional
Fund XIII-WIC, L.P. (successors to
HighMount Exploration & Production
Texas LLC).
COUNSEL: COUNSEL:
T Brooke Farnsworth Charles S. Kelley
State Bar No. 06828000 State Bar No. 11199580
Bennett S. Bartlett Quinncy N. McNeal
State Bar No. 01842440 State Bar No. 24074690
Farnsworth & vonBerg, LLP Mayer Brown LLP
333 North Sam Houston Parkway 700 Louisiana Street
Suite 300 Suite 3400
Houston, Texas 77060 Houston, Texas 77002
telephone: 281-931-8902 telephone: 713-238-3000
facsimile: 281-931-6032 facsimile: 713-238-4703
www.farnsworthvonberg.com www.mayerbrown.com
TRIAL JUDGE:
Patricia J. Kerrigan
190th Judicial District Court
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND THEIR COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT ON ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. STANDARD OF REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. KEY PROVISIONS OF THE ROYALTY AGREEMENT.. . . . . . . . . . . . . . . . . . . . . 7
A. The royalty calculation methodology in the agreement. . . . . . . . . . . . 7
B. The post-production cost-sharing methodology in the
agreement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III. THE TWO ISSUES CHALLENGED IN THIS APPEAL. . . . . . . . . . . . . . . . . . . . . . 13
A. Harrison's simplistic reading of the fuel gas provision is
contradicted by other specific provisions of the agreement, and by
an integrated reading of the agreement as a whole. . . . . . . . . . . . . . 13
ii
B. Because the majority of the natural gas from the Subject Interests
is compressed "downstream" from components of a "central
facility," HighMount's compression charges are permissible
"Marketing Costs" under the royalty agreement. . . . . . . . . . . . . . . . 20
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
iii
INDEX OF AUTHORITIES
Cases:
Alamo Nat'l Bank v. Hurd, 485 S.W.2d 335
(Tex. Civ. App.— San Antonio 1972, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . 1
Atlantic Richfield Co. v. Holbein,
672 S.W.2d 507 (Tex. App.—Dallas 1984, writ ref'd n.r.e.) .. . . . . . . . . . . 13
Bendigo v. City of Houston, 178 S.W.3d 112
(Tex. App.— Houston [1st Dist.] 2005, no pet.). . . . . . . . . . . . . . . . . . . . . . 6
Birnbaum v. SWEPI, LP,
48 S.W.3d 254 (Tex. App.—San Antonio 2001, pet. denied). . . . . . . . . . . 13
Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408
(Tex. App.— Houston [1st Dist.] 1998, no pet.). . . . . . . . . . . . . . . . . . . . . . 6
Comm'rs Ct. v. Agan, 940 S.W.2d 77 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . 6
Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132 (Tex. 1994). . . . . . . . . . . . . . . . . 19
Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118 (Tex. 1996). . . . . . 9, 10
MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Read v. Britain, 414 S.W.2d 483(Tex. Civ. App.— Amarillo),
aff'd, 422 S.W.2d 902 (Tex. 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Royal Indem. Co. v. Marshall, 388 S.W.2d 176 (Tex. 1965). . . . . . . . . . . . . . . . . 19
Santanna Natural Gas Corp. v. Hamon Operating Co.,
954 S.W.2d 885 (Tex. App.— Austin 1997, pet. denied). . . . . . . . . . . . . . 18
iv
Other Authorities:
Edward B. Poitevent, II, Post-Production Deductions from Royalty,
44 S. Tex. L. Rev. 709 (Summer 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ernest E. Smith and Jacqueline Lang Weaver,
Texas Law of Oil and Gas (2nd ed. 2014 LexisNexis). . . . . . . . . . . . . . . . . . 9
Patrick H. Martin and Bruce M. Kramer,
Williams & Meyers, Oil and Gas Law (LexisNexis 2014).. . . . . . . . . . . . . 10
Williams & Meyers, Manual of Oil & Gas Terms (14th ed. 2009). . . . . . . . . . . . 17
v
STATEMENT OF THE CASE
Nature of the Case: Appellee royalty interest owners brought suit alleging that
the appellants breached an oil and gas royalty agreement by
improperly deducting post-production costs from appellees'
royalty payments.
Trial Court: The 190th Judicial District Court of Harris County, Texas
The Honorable Patricia J. Kerrigan presiding.
Trial Disposition: Trial court granted summary judgment finding that
appellants (1) improperly deducted marketing charges from
appellees' royalty payments, and (2) failed to pay royalties
to appellees on natural gas used as fuel in compressors
necessary to transport natural gas to third party lines. The
final judgment awards specific damages.
STATEMENT ON ORAL ARGUMENT
How the parallel natural gas streams at issue in this appeal are gathered,
transported, treated, and processed, particularly in light of industry custom and
practice, bears heavily on the legal questions in this appeal. HighMount believes oral
argument will assist the court in understanding the facts underpinning the parties’
legal arguments.
vi
ISSUES PRESENTED FOR REVIEW
Issue No. 1: Payment of royalty on gas consumed as fuel.
The royalty agreement between HighMount as producer and Harrison as
royalty owner requires HighMount to pay royalties on the "gross proceeds" received
for gas remaining after processing. Did the trial court err in ordering HighMount to
pay royalty on gas used as fuel prior to processing when HighMount receives no
payment for natural gas used as fuel prior to processing?
Issue No. 2: Deduction of marketing costs.
The same agreement allows HighMount to charge Harrison 10 cents per MCF
of gas to recoup capital costs for equipment installed "downstream" from a defined
type of gas production facility. Did the trial court err in disallowing all of
HighMount's charges when only a small portion of the gas does not pass through
equipment installed downstream from such a facility?
vii
STATEMENT OF FACTS
Introduction
This appeal asks the court to construe an oil and gas royalty agreement.1 The
agreement was written in 1990 in conjunction with Harrison Interests' sale of mineral
interests to Meridian Oil Production Inc. R 9. As part of the consideration for the sale,
the appellees (collectively, "Harrison") reserved a 5% non-participating royalty
interest in conveyed properties and a 5% overriding royalty interest in conveyed
leases.2 R 9. The agreement defines the conveyed properties and leases together as
the "Subject Interests." R 19.
HighMount acquired Meridian's interest in 2007 from Dominion, also an
appellant. R 499. Based upon a review of audited royalty payment records, it appears
that HighMount was using the same accounting practices (at least up to the time
Harrison brought this suit) for royalty payments under the parties' agreement that both
Dominion and the earlier royalty payors had been using. R 324, 499-500.
1
A copy of the agreement is included as appendix B. Because the only copies of the
agreement in the record are degraded photocopies, we have retyped the relevant provisions of the
agreement and have included them in appendix B
2
While there are distinctions between nonparticipating royalties and overriding royalties,
those distinctions have no bearing on this dispute. See generally Alamo Nat'l Bank v. Hurd, 485
S.W.2d 335, 339 (Tex. Civ. App.— San Antonio 1972, writ ref'd n.r.e.) (discussing several Texas
Supreme Court decisions holding that an overriding royalty is royalty).
1
Shortly after HighMount's acquisition of the Subject Interests in 2007, Harrison
hired a valuation analyst named Alton R. Davis to audit HighMount's royalty
payments. R 320. The audit process continued over the next two and a half years (that
period included a litigation tolling agreement between the parties), and culminated
in an audit report in the summer of 2010. Id. This appeal arises from a summary
judgment against HighMount over two issues from the audit report that the parties
could not resolve. Appx A.
Gas Production from the Subject Interests
The issues in dispute concern, first, HighMount's use of gas produced from the
Subject Interests to power gas compressors and gathering equipment on the Subject
Interests before the gas is sold to a third party, and second, a marketing charge of 10¢
per thousand cubic feet ("MCF") of gas that HighMount charges Harrison for
preparing gas from the Subject Interests for market. A review of HighMount's
post-production activities will help put these two issues in context.
HighMount or its affiliate gathers gas from numerous wells on the Subject
Interests and then transports the gas through a field separator where liquids (oil and
water) are removed from the gas and sent to tanks. R 502-03. Approximately 95% of
the gas produced from the Subject Interests is then sent to a central facility referred
to as the Canyon Ranch DP-6 Station ("DP6"). Id. A diagram of wells and gathering
2
lines on the Subject Interests is attached as appendix C. See R 583. DP6 has been
highlighted for the court's convenience.
Two separate gas streams enter DP6, a "lean" gas stream and a "rich" gas
stream. R 503. A diagram of the equipment and transmission lines at DP6 is included
as appendix D. See R 584. The two separate intake lines have been highlighted in
different colors, and the both lines begin at the top of the page.
The lean gas comes into DP6 in an 8-inch pipeline and immediately goes
through two compressors. R 503. After compression it goes through separators, an
amine unit,3 and a heater, and is then delivered to a third party for transportation to
market. Id.
The rich gas comes into DP6 through a 20-inch pipeline, immediately goes
through a separator and meter, and then flows through two compressors prior to
delivery to a third party, DCP Midstream, LLP, for transportation to DCP's Sonora
Plant. R 503. At the Sonora Plant, it is further compressed and processed to extract
natural gas liquids such as ethane, propane, butane, and natural gasoline. Id. The
remaining gas that then emerges from the plant outlet or "tailgate" of the Sonora
plant, primarily methane, is referred to as "residue gas." The residue gas is delivered
3
Amine units are used to remove contaminants from a gas stream, most commonly hydrogen
sulfide (H2S) and carbon dioxide (CO2).
3
at the tailgate to DCP Midstream for transportation to Katy, Texas where it is sold.
Id.4 Thus, the rich gas—unlike the lean gas—is compressed by HighMount after it
undergoes other processing steps rather than before.
The crux of this appeal is whether or not HighMount is correctly paying
royalties under the various inter-related terms of the royalty agreement. To answer
that question, the Court will have to apply provisions of the royalty agreement to the
processing steps just discussed. We will quote sections of the agreement below as
they become relevant.
ARGUMENT SUMMARY
The first issue in this appeal invokes the well-established rule that courts must
read a contract as a whole to ascertain the drafters' intent. Based on a single sentence
in the royalty agreement, Harrison argues that HighMount must find some way to pay
royalties on the small portion of gas from the gas stream that is consumed as fuel in
gathering and compressing the rest of the gas stream for market. The trouble with that
claim is that it runs counter to everything else in the agreement. It contradicts the
instruction that the royalty obligation will only reach fuel gas for which HighMount
alone receives "proceeds." It is incongruent with the fact that both parties share the
4
The remaining 5% of the gas goes through a facility named “DP2,” but Harrison has never
complained about or taken issue with paying any charges associated with DP2.
4
burden of the compression and gathering costs if a third party compresses and gathers
the gas. And it ignores the fact that royalties are paid on residue gas, which is the
gas remaining after processing, meaning that the gas used as fuel for processing is
excluded from the royalty calculation. Accordingly, this Court must reverse the
summary judgment in Harrison's favor and render a decision holding that the royalty
agreement does not require HighMount's successor in interest to pay royalties on gas
used as fuel before the gas stream is processed downstream.
The second issue, unlike the first, requires a remand because there is an open
fact question. While it is unquestioned that gas enters DP6 in two streams, Harrison's
expert witness discussed only the path taken through DP6 by the lean gas—the much
smaller gas stream. He concluded that because the lean gas stream was compressed
before undergoing the processes associated with a "central facility" (heating,
separating, and metering), the compression did not occur "downstream" from a central
facility and was therefore not eligible for the marketing deduction in the royalty
agreement.
In contrast, the larger rich gas stream, which Harrison's expert did not discuss,
is compressed after it undergoes the processes associated with a "central facility."
Consequently, that stream does qualify for the 10¢ per MCF marketing fee charged
by HighMount. Determining the correct charges cannot be accomplished by this
5
Court, however, because the parties never undertook the necessary discovery to
delineate the damages for rich gas from those for lean gas. Therefore, the trial court's
damage calculation must be reversed and remanded for further findings.
ARGUMENT
I. STANDARD OF REVIEW.
Because the trial court disposed of this case on summary judgment, its decision
is to be reviewed de novo. Bendigo v. City of Houston, 178 S.W.3d 112, 113 (Tex.
App.— Houston [1st Dist.] 2005, no pet.). When, as here, the parties filed competing
summary judgment motions on the same issues, and the trial court granted one and
denied the other, the court is to review the summary judgment evidence presented by
both sides and if possible determine all questions presented. Comm'rs Ct. v. Agan,
940 S.W.2d 77, 81 (Tex. 1997); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408,
411-12 (Tex. App.— Houston [1st Dist.] 1998, no pet.). At the same time, because
HighMount was the losing party, this court must take all evidence favorable to
HighMount as true, indulge every reasonable inference in its favor, and resolve any
reasonable doubt in its favor as well. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.
1986).
6
II. KEY PROVISIONS OF THE ROYALTY AGREEMENT.
A. The royalty calculation methodology in the agreement.
This appeal challenges two trial court rulings on the proper calculation of
Harrison's royalties. Understanding the royalty payment method established by the
royalty agreement is critical to understanding how the court erred in its rulings.
Paragraph 4 of the agreement contains the royalty payment provisions and is
divided into five subparagraphs. Subparagraph (a) provides that royalty payments are
to be measured not by the volume of gas produced but on the gross proceeds from gas
sold:
(a) As to gas produced or to be produced from the Subject
Interests under a Short Term Sale, the royalties shall be Owners' royalty
share of the gross proceeds for the first sale or disposition of the gas
from the Subject Interests, . . . . [Appx B ¶ 4 (emphasis supplied)].5
Subparagraph (c) provides that when produced gas contains liquid
hydrocarbons that can be separated from the gas stream and sold profitably, royalties
are owed on both the separated liquids and the residue gas, again, based upon on
gross proceeds:
(c) If the gas produced from any well situated on the Subject
Interests shall contain in suspension condensate, gasoline or other
natural gas liquid hydrocarbons that economically can be separated from
5
Subparagraph (b) is not relevant to this appeal because it only applies to long term sales
arrangements and there are no such arrangements.
7
the gas by the installation by Producer of traps, separators or other
mechanical devices, then Producer shall install such devices on the
surface of the Property, and Owners shall receive royalty on the
condensate, gasoline or other natural gas liquids so recovered in
accordance with the terms of paragraph 3 [regarding royalties on oil],
together with royalty on the residue gas in accordance with the terms of
paragraphs 4(a) and 4(b) of this Royalty Agreement. [Appx B ¶ 4
(emphasis supplied)].
When produced gas, including previously separated gas, is processed6 for the
purpose of removing not only liquid hydrocarbons but other elements of value such
as sulfur, helium, and carbon dioxide, subparagraph 4(d) allows HighMount to
deduct processing costs from the royalty on the separated elements, while royalty on
residue gas is again measured on gross proceeds:
(d) If gas or casinghead gas or separated gas resulting from
field separation produced from the Subject Interests is processed at any
location by or for the account of Producer, or by or for the account of
any affiliate of Producer, for the recovery and sale or other disposition
for value of liquid hydrocarbons, helium, carbon dioxide, sulfur, or any
other elements of the gas steam, then in lieu of royalties on gas provided
in paragraphs 4(a) and 4(b), the royalties shall be Owners' royalty share
of the gross proceeds less Owners' royalty share allocable portion of the
reasonable, direct costs . . . of processing such gas in the plant for the
recovery of such liquid hydrocarbons, helium, carbon dioxide, sulfur
and other elements, and the royalties on the residue gas resulting from
such processing operation attributable to gas produced from the Subject
6
The royalty agreement defines "treating" to refer to the removal of contaminants from the
gas stream, explicitly stating that the term shall not refer to "processing" gas to remove valuable
liquid hydrocarbons for later sale. See Appx B ¶ 2 ("treating").
8
Interests shall be in an amount and determined as provided in paragraphs
4(a) and 4(b) above;7 . . . . [Appx B ¶ 4 (emphasis supplied)].
Because all of the gas that enters DP6 is separated to remove valuable liquids,
and the rich gas is also later processed at the Sonora plant (R 500), subparagraphs
4(c) and 4(d) are the provisions applicable to this case. And both calculate royalty
as a proportion of the "gross proceeds" received for "residue gas."
B. The post-production cost-sharing methodology in the
agreement.
Royalty calculation disputes like the one presented here are common in Texas
jurisprudence.8 In the case of natural gas royalties in particular, disputes arise
because gas producers and royalty owners share rights to the same undivided gas
stream, yet only the producer controls how the gas is marketed and sold. And while
the established rule burdens the producer alone with the cost of bringing the gas to
the surface, royalty owners bear their proportionate share of the post-production costs
7
Notably, the final sentence of paragraph 4(d) protects the owner by insisting that its
combined royalties for the residue gas plus the separated and sold liquid hydrocarbons shall never
be less than the royalty that would have been paid if the liquids stayed in the gas stream and royalty
was paid on the unprocessed gas. Thus, Harrison suffers no loss if HighMount’s use of fuel to
process the gas does not result in an increased royalty. Appx B ¶ 4.
8
See generally Edward B. Poitevent, II, Post-Production Deductions from Royalty, 44 S.
Tex. L. Rev. 709, 713 (Summer 2004).
9
incurred between the mouth of the well and the eventual point of sale absent an
agreement to the contrary.9
Post-production costs are incurred because natural gas is almost never ready
for sale as it leaves the wellhead. By the time natural gas is sold, it has been treated
to remove constituent elements, compressed, and transported to the point of sale.
Each of these procedures has an associated cost. While parties are free to divide the
cost of those operations as they wish, the traditional approach divides the cost
proportionally between the parties based upon the parties' ownership percentages.10
The disputes in this appeal arise from a detailed agreement which bears all the
earmarks of sophisticated industry players who recognized that their gas would need
to undergo various post-production procedures before being transported to a
downstream point of sale. Before we turn to the two specific issues in this appeal, it
is important to look at the agreement as a whole to understand the overall cost-sharing
scheme that they applied to post-production costs.
9
See Ernest E. Smith and Jacqueline Lang Weaver, Texas Law of Oil and Gas, §4.6[C] (2nd
ed. 2014 LexisNexis) (The royalty “must bear its proportionate share of costs incurred subsequent
to production.”) citing Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118 (Tex. 1996).
10
See generally Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas
Law, § 645 (LexisNexis 2014) (costs incurred subsequent to production are to be borne on a pro rata
basis between operating and nonoperating interests). Royalty is usually subject to post-production
costs, including taxes, treatment costs to render it marketable, and transportation costs. See also
Heritage Resources v. Nationsbank, 939 S.W.2d at 122.
10
Following customary practice, the parties decided that the royalty owner would
bear its fair share of those costs. The agreement's "General Terms" allow the producer
to deduct marketing costs from the owner's royalty up to a maximum of 10¢ per MCF:
(b) All royalties shall be determined and delivered or paid to
Owners after deducting therefrom the following costs:
(i) as to gas produced from the Subject Interests,
Owners' royalty share of Producer's monthly Marketing Costs for
such gas; however, for purposes of this paragraph 7(b), Producer's
monthly Marketing Costs (whether actually incurred by Producer
or an affiliate of Producer or charged to the Producer by a third
party) shall not exceed ten (10) cents per MCF . . . [Appx B ¶
7.(b)(i)].
"Marketing Costs" includes post-production processes necessary to make the gas
marketable, and the parties burdened the royalty owner with its proportional share of
those costs up to a 10¢ per MCF maximum.
The agreement also allows the producer to deduct post-production costs
associated with extracting liquid hydrocarbons from the owner's royalty. Paragraph
4(d) of the agreement, which we quoted above, addresses the royalty to be paid on
both the extracted elements of the gas stream and the residue gas. The royalty on the
extracted elements is subject to a deduction for "[o]wners' royalty share allocable
portion of the reasonable, direct costs . . . of processing such gas in the plant for the
11
recovery of such liquid hydrocarbons, helium, carbon dioxide, sulfur and other
elements, . . . ." [Appx B ¶ 4(d)]. Again, the parties proportionately share those costs.
Transportation costs are yet another expense that may be deducted from the
royalty payments under the agreement. As we discuss in more detail in section III of
this brief, the parties chose to measure the owner's royalty percentage not by the
market value of the gas sold, but by the "gross proceeds" received for the gas. The
definition of "gross proceeds" instructs that third-party transmission fees are
deductible from royalty payments:
In the event Producer transports, or causes to be transported, gas
production from the Subject Interests on a gas transmission line to a
market or sale "gross proceeds" for such gas shall be determined after
deducting any fees or charges incurred by Producer from the owner of
the gas transmission line for such delivery or transportation to such
market or sale; [Id. ¶ 2 ("gross proceeds")].
Thus the agreement allows deduction of Marketing Costs, certain processing
costs, and transportation costs from the owner's royalty payments. These
post-production deductions share a common feature: they each benefit the parties
jointly. Compression makes gas marketable for both parties' benefit. Extracted liquid
hydrocarbons are sold for both parties' credit. Transportation takes gas in which both
parties have an interest to a location for sale. The agreement, in other words, has a
12
basic approach to post-production procedures: where the benefits are shared, the costs
are shared.
This cost-sharing arrangement can also be seen in the alternative marketing
arrangement the agreement permits (but that Harrison never opted to take advantage
of). The agreement allows the owner to take its gas in kind for short-term sales.11 If
Harrison did so, it would bear the costs of compressing and treating its own gas and
transporting that gas to market. Thus when, as here, the producer takes those steps for
the owner, it does so for both parties' benefit, and the parties share the agreed-upon
post-production costs proportionately.
III. THE TWO ISSUES CHALLENGED IN THIS APPEAL.
A. Harrison's simplistic reading of the fuel gas provision is
contradicted by other specific provisions of the agreement,
and by an integrated reading of the agreement as a whole.
The first issue in this appeal is whether or not Harrison should be paid royalties
on gas used as fuel to operate HighMount's compressors and gathering equipment in
the field. Compression and gathering are necessary steps in preparing the gas for
market, and HighMount's compressors and gathering equipment obviously require an
11
The relevant language in paragraph 7(g) of the agreement begins:
In the event that Owners' royalty share of gas is not committed to a Long Term Sale in accordance
with the provisions of this Agreement, then at any time and from time-to-time Owners make elect
to take Owners' royalty share of gas production in kind and use or market same for their own account
. . ..
13
energy source. Following industry custom, HighMount uses gas from the wells it
operates to run its compressors and gathering equipment.12
There is no question that the gas consumed as fuel improves the value of the
remaining gas by making it available for subsequent sale. And because the parties
have proportionate interests, the reduction in the gas quantity reduces the parties'
interests proportionately. Therefore, given the royalty agreement's cost-sharing
approach to post-production procedures, it follows that the parties would jointly
shoulder the loss of gas consumed for their mutual benefit.
Harrison nevertheless complains that it should be paid royalty on the gas used
as fuel. Its argument rests upon a selective reading of the single sentence that
constitutes paragraph 4(e) of the agreement:
(e) Owners shall receive their royalty share of the gross proceeds
for gas used or utilized on or off the Subject interests, such as gas used
for fuel.
Harrison's deceptively simple conclusion from this sentence is that HighMount must
find some way to pay Harrison for gas consumed in compression and gathering.
12
It is common industry practice to use gas as fuel to run treatment equipment on the lease
premises. See, e.g., Atlantic Richfield Co. v. Holbein, 672 S.W.2d 507, 516 (Tex. App.—Dallas
1984, writ ref'd n.r.e.) (“uncontroverted testimony was that it is an industry-wide practice to deduct
the allocated volume for fuel gas before computing the settlement owed to royalty owners);
Birnbaum v. SWEPI, LP, 48 S.W.3d 254, 255 (Tex. App.—San Antonio 2001, pet. denied) (trial
court's summary judgment finding that no royalties were due on gas used as plant fuel and
compressor fuel affirmed).
14
When this sentence is put in the context of the rest of the agreement, however, it
becomes clear that the drafters of the royalty agreement never intended for royalties
to be paid on fuel gas used in compression and gathering and there are several reasons
for this conclusion.
To begin with the most obvious, HighMount did not receive any "proceeds"
from the gas used to run the compressor or the gathering lines. We acknowledge that
the agreement defines the term "gross proceeds" quite broadly in an effort to reach
the different kinds of commercial arrangements a producer might make to sell the
produced gas:
"gross proceeds" shall mean the entire economic benefit and all
consideration in whatever form received by or accruing to Producer or
an affiliate of Producer, including but not limited to sales proceeds or
proceeds or benefits of an exchange, prepayments for future production,
reimbursements for severance taxes or for other taxes or costs,
settlements or payments for the release or amendment of a sales contract
or arrangement, and take-or-pay payments or settlements and the like,
and any insurance proceeds from lost or destroyed oil and gas, . . . .
[Appx B ¶ 2].
But even under that broad definition, HighMount's use of gas in compressing and
gathering does not qualify as the sort of "proceeds" that the parties intended to reach.
The sort of consideration that they did intend to reach can be discerned from
the subsequent sentences of the definition. Each example of the type of economic
benefit that the parties envisioned as "gross proceeds" is one in which the
15
producer—and the producer alone—would receive an economic benefit in a quid pro
quo exchange with another party other than the royalty owner: transactions such as
a prepayment for future production, a recovery under a take-or-pay arrangement, a
payment for the release of a contract, a payment of insurance proceeds for lost or
damaged gas, or the benefit of an exchange of some sort.
Unlike all of those examples, HighMount's use of gas for fuel does not arise
from any sort of exchange, sale, or other payment. HighMount receives nothing in the
way of proceeds or other direct consideration from any other party when it uses gas
for fuel. Instead, the gas consumed as fuel to compress and gather the rest of the gas
stream is a post-production "cost" to HighMount and Harrison alike rather than a
"proceed" of any sale or exchange.
Furthermore, the economic benefit that does flow from the use of gas as fuel
does not accrue exclusively "to Producer" as required by the definition of gross
proceeds. Appx B ¶ 2. Both parties obtain the benefit of the gas reaching a market as
a result of compression and gathering. If HighMount paid royalty on that gas,
Harrison would get a windfall, a double dip of sorts, because both parties would be
paid for gas sold at market, but only Harrison would also be paid for the gas
consumed in making the remaining gas marketable. This uneven treatment is at odds
with both the specific language of the agreement and the drafters' well-expressed
16
intent that the jointly-benefitting parties share in the post-production costs required
to obtain those benefits.
A further problem with Harrison's reading becomes apparent when one is
confronted with the difficulty of putting a value on gas used as fuel. There are no
proceeds received for the gas from which one could calculate Harrison's royalty. Nor
is there any sort of exchange or trade that one could look to as a relative value. The
sale price many miles downstream is not directly helpful because the gas has a very
different value at that location, having been augmented by compression, processing,
and transportation.
Royalty could be calculated based on the downstream value by "backing out"
the specific charges for treatment and transportation (as is typically done for so-called
"market value" leases). But under the parties’ agreement here there are no such
charges to back out. Even Harrison's own expert never identified a value for the gas
used to fuel the compressors, simply using the sales price at Katy, Texas. R 440,
757. That price is not comparable, however, because the gas that is sold in Katy has
traveled several hundred miles and has been compressed more than once along the
route. In short, there is simply no metric for measuring the "proceeds" value of gas
burned up in the process of compressing, treating, and thereby enhancing the value
of the rest of the gas that is then sold at a distant location.
17
Finally, and most significantly, the parties' decision to assess royalties on
"residue gas" shows that they never intended for royalties to be paid on gas consumed
in the treatment and processing steps. While "residue gas" is not defined in the royalty
agreement, it has a well-defined meaning in the industry. Residue gas means “[g]as
remaining after processing in a separator or other plant which removes liquid
hydrocarbons contained in the gas when produced.”13 By definition, then, any
volume of gas that enters a separator or plant is reduced by the time it comes out of
the separator or the tailgate of the plant.
This reduction in volume is the key to understanding the parties' agreement on
gas used as fuel. The parties' decision to base royalty payments on gross proceeds
received for "residue gas" is a designation of the volume of gas on which royalties
would be due: namely, the volume of gas leaving a separator or processing plant.
Because the parties had a sophisticated understanding of oil and gas operations, they
knew that the volume of gas would be reduced between the mouth of the well and the
exit, or "tailgate," of a processing plant due to the loss of the liquid hydrocarbons
13
Williams & Meyers, Manual of Oil & Gas Terms, 835 (14th ed. 2009). Accord Amerada
Hess Corp. v. Conrad, 410 N.W.2d 124, 131 (N.D. 1987) (citing 8 Williams and Meyers, Oil and
Gas Law, Manual of Terms, at p. 528 (1984)); Read v. Britain, 414 S.W.2d 483, 487 (Tex. Civ.
App.— Amarillo), aff'd, 422 S.W.2d 902 (Tex. 1967).
18
removed and sold, the loss of gas used to run compressors and gathering equipment,
and other shrinkage.14
The parties could have very well specified that royalties would be paid on gross
volumes. They chose instead to use gross proceeds, and to tie the calculation of
proceeds to the sale or other disposition of the volume of gas leaving a tailgate or
separator outlet after processing. By choosing that measurement method, the parties
agreed that no royalty is due on any natural gas consumed or used as fuel in any
operation prior to that point. Consequently, the parties never intended for royalties
to be paid on gas consumed in the preliminary steps required to make the gas
marketable.
Harrison will contend that our reading makes the language requiring royalty
payments on fuel gas meaningless. That is not at all the case. As one example, the
provision would apply to a lessor's use of gas. It is not unusual for lessors to ask to
use gas produced from their land as fuel for heating their homes, running equipment,
etc. In exchange, the lessor might accept a lower royalty or grant an easement. The
14
See generally Santanna Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 889
n. 8 (Tex. App.— Austin 1997, pet. denied) ("Gas accounting is difficult because gas volumes and
energy content fluctuate from day to day and a certain amount of volume shrinkage in the pipeline
and plant is normal.").
19
value of the lesser royalty, or the value of the easement, would be the measure of the
royalty owed by HighMount for fuel gas under paragraph 4(e).
The choice between the parties' competing explanations of the fuel gas
provision is stark. Harrison's reading, which focuses solely on a single sentence in the
agreement divorced from context, and which ignores the definition of the word
"proceeds" in that sentence, runs contrary to the proper task of interpretation. Courts
must give effect to the expressed intent of the parties' agreement as a whole, rather
than interpret one provision in isolation.15 “Courts must be particularly wary of
isolating from its surroundings or considering apart from other provisions a single
phrase, sentence, or section of a contract.”16
By contrast, HighMount's reading of the fuel gas sentence squares with the
agreement as a whole: it comports with the overall intent of the parties to
proportionately share post-production costs; it gives meaning to the term "proceeds"
in the fuel gas sentence; and it finds support in the parties' decision to base "gross
proceeds" on "residue gas" remaining after separation, treatment, and other gas loss.
15
See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 180 (Tex. 1965); Forbau v. Aetna Life
Ins. Co., 876 S.W.2d 132, 135 (Tex. 1994).
16
Forbau, 876 S.W.2d at 133.
20
Accordingly, the court must reverse the trial court's ruling in Harrison's favor
and render a decision that the parties' royalty agreement does not require royalty
payments on gas used as compressor and gathering fuel.
B. Because the majority of the natural gas from the Subject
Interests is compressed "downstream" from components of a
"central facility," HighMount's compression charges are
permissible "Marketing Costs" under the royalty agreement.
The trial court’s other ruling held that HighMount was not allowed to deduct
gas compression charges from Harrison's royalty payments. HighMount deducts those
charges pursuant to two interrelated provisions of the agreement. The first provision
is found in the "General Terms" section and allows HighMount to deduct up to 10¢
per MCF for "Owners' royalty share of Producer's monthly Marketing Costs." Appx
B ¶ 7. The second provision is the definition of "Marketing Costs," which reads in
relevant part:
"Marketing Costs" shall mean:
(i) the reasonable, capital costs of property actually installed
by Producer or an affiliate of Producer after the Effective Time, which
property:
* * *
(b) is required to be installed downstream from a central
facility in order to deliver gas produced from the Subject Interests
to a gas transmission line or otherwise to a market; and
21
(c) is part of a facility to transport gas produced from the
Subject Interests from a central facility to a gas transmission line
or is part of a facility compressing or treating such gas as required
for deliver to such a gas transmission line; and [Appx B
(emphasis supplied)].
The Marketing Costs deductions HighMount takes are consistent with the
parties' agreement. There is no question that compressing the gas mutually benefits
the parties by making the gas marketable. It is equally clear that the compressors
were, in the language of the agreement, "required to be installed . . . in order to
deliver gas produced from the Subject Interests to a gas transmission line." Appx B.
But based upon the physical location of some of the compressors vis-a-vis other gas
treating equipment, Harrison found a sort of "gotcha" argument that appears to have
swayed the trial court.
Harrison's argument rests upon the language in the Marketing Costs definition
that requires a compressing facility to be "installed downstream from a central
facility." R 686, 749. While the trial court did not explain its ruling, Harrison's
primary argument17 for rejecting compression charges was that the compressors were
not physically located "downstream" from a "central facility," as the latter term was
17
Harrison's motion concluded with an accusation that HighMount failed to prove it built
the compressor facilities in accordance with the Marketing Costs definition. R 555. If Harrison, as
the movant, wanted to shift the burden of proof to HighMount, it needed to follow the procedure to
file a no-evidence summary judgment motion, which it did not do.
22
defined in the agreement. Therefore, in Harrison's view, compression costs could not
be deducted as Marketing Costs. To the extent the judgment below rests on this
argument, it is error because the record reflects, at the very least, a genuine
unresolved fact question, and at the most, a set of facts inconsistent with the trial
court's ruling.
A "central facility," from which compressors must be downstream, is defined
in the royalty agreement as follows:
"central facility" shall mean the final set of heaters, separators,
meters and tanks that are operated as a unit and into which production
from more than one oil or gas well on the Subject Interests is gathered
for final treating and measurement prior to delivery to a gas transmission
line owned or operated by a principal purchaser of gas in the Permian
Basin. [Appx B ¶ 2].
With this definition as the touchstone, the evidence submitted to the trial court to
explain the location of the compressors at issue consisted solely of a diagram of DP6,
and brief statements in two expert reports. But even this limited information
demonstrated that the rich gas did qualify for the Marketing Costs deduction even
under Harrison's argument.
The opinion from Harrison's expert, Don Rockwell, is the starting point
because it makes HighMount's case. R 560. Rockwell looked at the diagram of DP6
and apparently missed the fact that there are two different gas inlets. Without
23
distinguishing which gas stream he was addressing, Rockwell explained that the gas
is compressed at DP6 for delivery to a high pressure gas line. Based on that fact he
opined that because the gas underwent additional treatment after leaving the
compressors, the compressors were not downstream from a central facility:
4. Once the gas leaves the compressors, it then goes through
other vessels on the facility, such as a filter separator, an eight-inch
discharge meter, an amine contactor, a heat exchanger, a recovery
separator, and a dehydration tower, before it flows to sale. Thus,
downstream from these compressors are a series [sic] heaters, separators,
meters, tanks and other vessels, where the gas is further treated and
eventually sent to market. From my understanding of the Royalty
Agreement, none of these compressors are downstream from a central
facility, as that term is defined. [R 561].
The upshot of his analysis is telling. Rockwell concludes that because the gas
flows through other treatment devices after being compressed, it can't be downstream
of a central facility. By that reasoning, if the compressors are the last stop for the gas
after going through other treatment devices but before it flows on to a third-party
pipeline, the compressors are downstream from a central facility.
HighMount's expert, Allen Cummings, recognizing that there are two streams
of gas flowing into DP6, reached just that conclusion. Observing that the definition
of a "central facility" does not include any reference to compressors or compression,
he pointed out that the compressors at DP6, by definition, cannot be part of a central
facility. R 753-54. He concluded, therefore, that because the compressors of the rich
24
gas, unlike the lean gas, are located "downstream" from the other facility components
that operate as a unit, the compression charges for rich gas satisfy the Marketing
Costs definition in the royalty agreement. Id.
Cummings's conclusion is confirmed by the flow chart put into evidence by
Harrison's expert, Don Rockwell. See R 772, 775. The print on the chart is so small
that it is difficult to follow the path of the gas as it flows through the facility. To aid
the Court's understanding of the schematic, HighMount highlighted the 20-inch line
through which the rich gas flows, and the 8-inch line through which the lean gas
flows, in different colors to make it easier to follow the path followed by the gas, and
added colors for the other processing equipment on DP6 as well. See R 752, Appx D.
As one can see from the diagram, the compressors for the rich gas are downstream
from any other equipment, and are the last processing step for that gas prior to
delivery to a gas transmission line.
Accordingly, by Harrison's own argument, the rich gas is eligible for the 10¢
per MCF charge for Marketing Costs. Because the trial court's judgment makes no
distinction between the funds that HighMount owes to Harrison on lean gas versus
rich gas, the trial court's summary judgment must be reversed and the case
remanded for further factual findings on the quantity of gas qualifying for the
Marketing Costs deduction.
25
CONCLUSION
The drafters of the royalty agreement went to considerable effort to narrowly
circumscribe the post-production costs that the parties would share. In deciding which
costs would qualify, the drafter's litmus test was mutual benefit: where the treating
or processing undertaken would improve the gas for the benefit of both parties, the
cost was to be shared. Nevertheless, on the basis of a single sentence in the
agreement, the trial court concluded that the parties did not intend to share fuel gas.
The trial court's misreading of that sentence ignores the meaning of the term "gross
proceeds," misses the import of paying royalties on "residue gas," and stands at odds
with the ethos of the agreement as a whole.
As for the question of marketing costs, Harrison's own expert’s position on the
concept of "downstream" compression demonstrates that HighMount is allowed to
deduct costs on the rich gas stream flowing through DP6.
PRAYER
For the reasons presented, HighMount asks the Court to (1) reverse the trial
court's summary judgment, (2) render a decision that HighMount has no obligation
to pay royalties on gas it uses for compression and gathering fuel, (3) hold that
HighMount is entitled to charge up to 10¢ per MCF for Marketing Costs for rich gas,
26
and (4) remand the case to the trial court for further findings on the amount of rich
gas subject to that marketing charge.
Respectfully submitted,
FARNSWORTH & vonBERG, LLP
By: /S/ T Brooke Farnsworth
T Brooke Farnsworth
State Bar No. 06828000
Bennett S. Bartlett
State Bar No. 01842440
333 North Sam Houston Parkway
Suite 300
Houston, Texas 77060
Telephone No. (281) 931-8902
Facsimile No. (281) 931-6032
ATTORNEYS FOR APPELLANTS
27
CERTIFICATE OF COMPLIANCE
The forgoing brief was generated by computer-based word-processing
software, and I certify that the total number of words counted by that software,
excluding those parts of the brief to be excluded under Rule 9.4(i), totals: 6,419.
/s/ Bennett S. Bartlett
Bennett S. Bartlett
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
served via e-service to the parties listed below on May 13, 2015.
Charles S. Kelley
ckelley@mayerbrown.com
Quinncy N. McNeal
qmcneal@mayerbrown.com
MAYER BROWN LLP
700 Louisiana Street, Suite 3400
Houston, Texas 77002
Facsimile: (713) 238-4703
ATTORNEY S FOR APPELLEES
/s/ Bennett S. Bartlett
Bennett S. Bartlett
28
APPENDIX A
fa.5- 12/2/2014 616 02 PM
ChllS Daniel • Otstncl Clerl< Hams County
Envelope No 3354569
By CAROL WILLtAMS
l.J(/\ Filed 12/2/2014 6 16 02 PM
CAUSE NO. 2009-06060 ( b (p\
213
HARRISON INTERESTS, LTD., DAN J. § IN ml!! DISTRJCt cot RT OF
HARRISON Ill, AND BFH MINING §
LTD., §
§
Plaintiffs. §
§ HARRIS COUNTY, TEXAS
vs. §
§
§
HIGRMOUNT EXPLORATION & §
PRODUCTION, INC. AND DOMINION § 190rn JUDICIAL DISTRICT
OKLAHOMA TEXAS EXPLORATION & §
PRODUCTION. INC., §
§
Defendanu. §
§
FINAL JUDGMENT
THE COURT, having considered the parties' pleadings. including the cross-motions for
summary judgment, the summary judgment evidence attached thereto, the responses to the
summary judgment motions, and the arguments of counsel for Plaintiffs Harrison Interests, Ltd.,
Dan I. Harrison, TU and BFH Mining. Ltd. ("Plaintiffs") and Defendants HighMount Exploration
& Production LLC ("HighMount") and Dominion Oklahoma Texas Exploration & Production,
Inc. (collectively, the "Defendants.,). is of the opinion and has ruled that Defendants have
breached that certain Royalty Agreement, dated May 22 1 1990, the subject of tbis litigation, by
withholding payment of royalties for gas production used for fuel on those properties located in
Annexes I and 2 of the Royalty Agreement in Sutton and Edwards Counties, Texas (the "Subject
Interests'') and by assessing improper marketing costs on the gas volwnes produced on the
Subject Interests, a.s described in Plaintiffs' motions for summary judgment and more fully
below. IT IS FURTHER,
RECORDER'S MEMORANDU.M
This Instrument Is ol poor quehty
at the time of Imaging
843
ORDERED that, pursuant to the Court's signed orders ofJune 4, 2014 granting summary
judgment in favor of Plaintiffs as to Plaintiffs' Motion for Summary Judgment for Royalties on
Gas Used for Fuel and as to Plaintiffs' Motion for Summary Judgment for Reimbursement of
Marketing Costs, Defendants are required (i) to pay royalties to Plaintiffs on all production used
as fuel on the properties to which the Royalty Agreement relates. and (ii) to remove any
marketing deduction as none is entitled lo be applied in light of the operations as they exist as of
the date of this judgment; it is FURTHER
ORDERED that Plaintiffs shall recover from Defendants all principals sums owed based
on improper royalty withholdings and inappropriate marketing deductions made on royalty
payments that were made (or should have been made) on or before November 30, 2014
(including a missed royalty payment in its entirety for the production month of August 2014
which is not the subject of this suit and may have been missed accidentally), in addition to
prejudgment interest (as provided for under the parties' contract) calculated at the Prime Rate (as
announced by Texas Commerce Bank-Houston, N.A.) plus two percent (2%) from January l,
2004 onward; it is FURTHER
ORDERED that, because Plaintiffs have incWTed the attorneys fees and coW1 costs in
filing the action to enforce its right of payment, they shall additionally recover these reasonable
and necessary attorneys fees and costs arising out of the prosecution of this matter, as provided
under Texas Civil Remedies and Practice Code § 38.001 (8) for actions in breach of contract. and
the parties have announced their stipulation that, through the date of entry of this judgment only,
the amount of such fees and costs that shall be payable by Defendants to Plaintiffs are $325,000,
plus costs in an amount ofSl 1,200.00; it is THEREFORE,
2
844
ORDERED. ADJUDGED and DECREED that Plaintiff Harrison shall recover from
Defendants, either jointly or severally, the sum of $218,637.16 in principal damages for
reimbursement of improper marketing cost deductions; the sum of $68,063 .90 in principal
damages for reimbursement of royalties on fuel gas use; and the sum of $100,697.03 in pre-
judgment interest for payments that should have been made on or before November 30, 2014
under the royalty agreement between the parties, together with daily interest accruing on this
combined amount at the rate of $55.72 per diem each day thereafter until entry of this judgment.
Accordingly, Plaintiff Harrison shall recover the total of $387,398.09 from Defendants. either
jointly or severalJy. in principal damages and interest, plus the additional accrued pre-judgment
interest; it is FURTHER
ORDERED, ADJUDGED and DECREED that Plaintiffs Dan J. Harrison, 111 and BFH
Mining, Ltd., ~ shall recover from Defendants. either jointly or severally, the sum of
$6,641 .27 in principal damages for reimbwsement of improper marketing cost deductions; the
sum of $2,202.07 in principal damages for reimbursement of royalties on fuel gas use; and the
sum of $3,023.94 in pre-judgment interest for payments that should have been made on or before
November 30, 2014 wider the royalty agreement between the parties, together with daily interest
accruing on this combined amount at the rate of $1.71 per diem each day thereafter until entry of
this judgment. Accordingly, Plaintiffs Dan J. Harrison, III and BFH Mining, Ltd. shall each
recover the total of $11,867.28 from Defendants. either jointly or sevcraUy, in principal damages
and interest. plus the additional pre-judgment interest; it is FURTHER
ORDERED, ADJUDGED and DECREED that Plaintiff Harrison shall recover from
Defendants, either jointly or severally, the amount of $325,000 in reasonable and necessary
attorneys' fees and Sll.200 for disbursements for those fees and expenses incurred up through
3
845
November 30, 20141 and that, in the event of any further legal work necessitated by post-
judgment motions or practice, together with any legal work in successfully defending this
judgment on appeal 1 Plaintiffs will be pernlitted to recover their reasonable attorneys' fees and
expenses on further application in any additional amowus to be detemiined in the future by this
Court and all defenses to such additional amounts may be urged at such time; it is FURTHER
ORDERED. ADJUDGED and DECREED that Defendants shall pay post-judgment
compOlmd interest on the outstanding amounts due under the judgment pursuant to Tex.as
Finance Code § 304.002 from and after the date of entry of this judgment until such amounts are
paid in full, and such post-judgment interest shall accrue on all amounts required to be paid
hereunder and be payable at a rate of the Prime Rate (as aMounced by Texas Commerce Bank-
Houston, N.A.) plus two percent (2%) compounded annually from the date of entty of the
judgment until the amounts required hereunder are satisfied; and it is FURTHER
ORDERED! ADJUDGED and DECREED that Defendants shall bear all costs of court.
All writs and processes for the enforcement and collection of this judgment may issue as
necessary. The parties agree and acknowledge that Harrison has not been paid the sum of
$31,988.41 in principal for the missing royalty check for August 2014 production, which
HighMount will remit along with the December payment.
AU other relief sought and not expressly granted herein is DENIED.
SIGNED this I.it... day of December 2014.
~~
4
846
AGREED AS TO FORM
AND STIPUU TED AS TO FEES AND EXPENSES (through Nov. 30, 2014):
By:ls/ Chnrle.5 S. Kelle11
Charles S. Kelley
MA YER BROWN LLP
700 Louisiana St., Suite 3400
Houston, Texas, 77002
Tel. 713-238-3000
Fax. 713-238-4634 .
ATTORNEY FOR PLAINTIFFS
HARRISON INTERESTS, LTD., DAN
J, HARRISON, III AND BFH
MINING, LTD.
By: /.VT. Brooke F'arn.\-wm•/h
T. Brooke Farnsworth
Farnworth &. vonBerg
333 North Som Houston Pkwy
Suite 300
Houston. Texas 77060
Tel. 281-931-8902
Fax. 281-931-6032
AITORNEY FOR DEFENDANTS
.HIGHMOUNT EXPLORATION A
PRODUCTION LLC AND
DOMINION OKLAHOMA TEXAS
EXPLORATION & PRODUCTION,
INC.
s
847
APPENDIX B
R0¥AJ.'l'Y 1.GBE£MEHT
This Royalty Agreement is made and entered into to be
eff ect:.iva all of th9 Effective Time stated below, by and between
!L\R?!SON INTERESTS, LTD., a Texas limited partnership, DAN J.
HARitransmission lin• own•d or operated by a principal
purchaser of gae in th• Per11\ian aa11n.
"GQVernment.ol Rggul41:J,~mo" shall mean all laws,
ordinances , statutes, code•, rules, regYlations, orders and
decree• of the United Stat•• of All\erica, the State of
Te xas, the Texa1 Railroad Commission, tdwards County,
Sutton county, or any other political eubdivision in which
th• Subject Int•r••t• are located, and any other political
subdivision, aqency or intt~entality exerci1in9
jurisdiction over Owners, Producer or the Subject Interests.
"grou proceeds• shall mean the entire economic
benefit and all consideration in what•ver form rec•ived by
or accruinq to Producer or an affiliate ot Produ~er,
including but not limited to 1ale1 proceeds or proceed• or
ben1tie1 of an exchang• 1 prapayment• for future production,
r11Jnbur•e~nt1 tor severance taxe1 or for other tax.a or
co1t•, ssttlemant• or piryment1 for th• release or iunendment
at a s•l•• oontr&ot or arran9ement, and take-or-pay
p1yinent• or settl•~ent1 and the like, and any 1naura~•
proce1d1 fro• lost or de•troyed oil and ga•, provided that
•gro•• proceed•" shall not includ• any tee or charqe for
services (c:i:an•portation, compr•••ion, trwatin9 and th•
like) rtlatln9 to 9ae produced from th• Subject Int•r••t•
after such gu leave• the Subject Intere1t1. In th• event
Producer tran1port• , or cause• to be transported, gaa
production from the Subject Intere•t• on a qas tranamia1ion
lin• to a market o:i:- !tale •qro11 proceeds• f or such qa1
shell be determined after deduc..:inq any t•••
or charges
incurred by Producer from the owner of the ga• trana111111aion
line for such dalivary or transportation to such market or
sale; such !eea or charge• shall be for traneportation of
ga• atter it leavee facilit1e• to which Market1n9 Costs, if
any, relate and shall exclude fee• or charges of Mark•tinq
Costa.
•Long Taoa Sale• shall mean any contract, agreement,
arrangement or exchange concerninq dispo11t1on of
production fro~ the Subject Intersata for a term greater
than twelv~ (12) months.
"tlarkel:ing Cosu• shall munz
(i) the reasonable, capital coat• of property
actually installed by Producer or an affiliate of
Producer after the gffectiv• Tim•, which propertyz
(a) is depreciable for purpo••• cf th•
Internal Revenus Code of 1986 1 o• a~anded, and
(b) is required to be installed downstream
from a central facili ty in order to deliver qu
produced from the Subject Intereet.s to a gas
t ransmission line or otheJ;Wise to a market1 and
(c) is part of a facility to transport gas
produced from the Subject Interests from a
central facility to a gas transmission lln• or is
part of a facility compressing or treating such
gas as required for delivery to such a qas
transmission line; and
(ii) char9es made by a third party that is not an
affiliate of Producer directly attributable to
property actually installed after the Effective Time,
which property 1
2
.-.
(a, is installed downstream from a central
facility in order to transport ga• produced trom
tha Subject Interest• to a ga• transm1ss1on line
or otherwise to a market1 and
(b) is part of a facility required to
transport ga1 produced from the Subject Interests
from a central facility to a gas transmission
line, or is part of a facility compressing or
treating such gaa as required for delivery to
such a gas transmission line.
As to property actually installed by Producer or an
affiliate ot Producer, Marketing Costs shall be calculated
aa a monthly charge on a par MC~ ba•is for the facilit1e•
to which the Marketing coats relat•, with such Marketing
Coats amortized on a straight-line basis tor the expected
life of such facilities and based on the entire da•iqn
capacity thrcu~hput of the facilities. Karketin; Costs
charqad to Producer by a third party shall be th• rate
actually charqed to Producer.
~ m••n• one thousand (1,000) cubic feet of gas,
with •cubic feet ot qa1• meaninq the llJJIOUnt of qas
contained in A cub.l.c foot of apace and at a base pre•sure
of fourteen and sixty-five one-hundredth• (14.65) pounds
per square inch absolute and at a base t•~perature of sixty
degrees Fahrenholt.
"mineral subatance;s• shall mean all mineral subn.ances
or riqhts o ther than oil and qas, even if such substances
occur so near the surface of the ground that they can or
m~st be mined, produced or exploited by stripping away or
otherwise destroying or substantially dl1turbing the
surface of the qround, but excluding brick and cement clay,
ground wat.er, subsuxfoce 11atar or water rights, top soil,
!oam and ordi nary clay. By way of illustration, but not in
limitation, such mineral subst.ances or riqhts that are
"mineral r1qhte• for purpo•ea of thl• Royalty Agreement.
shall 1ncluda sulphur, salt, coal, lignite, tar sands,
heavy oil, tar, kero9en, uranium, vanadium, thori11111 and
other f i s~onable substancee, all precious and bas• metals,
gaothermal energy (including haatsd water and steam,
entrained methane, hydroetatic preseur• and thermal
energy), bauxite, iron ore, sand, gravel, rock, shell,
caliche, lilllestona and any other mineral substance or right
including near surf ace subatances used al road buildinq and
road construction materials.
, •oil and aH" shall mean any or all of t.he followinq1
oil, liquid hydrocarbons, gas, and their reepective
c onstit~ent products, and any other subst1111Ces produced i n
conjunction wi th oil and gas, or either of them; .::.stU..:
shall mean oil, other l i quid hydrocarbons and their
respective constituent pr od11cts, and any other aubstance
producQd i n conjunction with oil; ~ shall mean qas and
Lts constituent producta and any other substance produced
in conjunction with gas.
•oil or gas well " shall mean a vertical borehole with
a wellhead, regardless of the number of horizontal
drainholo9 that may be drilled or that exist connected to
such vertical borohole, drilled and maintained for the
purpose of producing 011 and gas.
•quality • of oil and gas, mineral substances or
subsurface r l qhts shall mean pby5ical characteristics of
oil and gas, such as qrade, qravity, BTU content and the
like, or physlcal characteristics of the mineral substances
l
or subsurface rlqhts, and Goverl\lllental Regulations
applicable to the oil and gas, mineral subs~ancas or
subsurface rights, but not contractual terms.
"Short Tgrm Sale" shall mean any contract, agreement,
arrisnqement or exchange concerninq disposition ot gas from
the Property tor a term of twelve {12) months or les1,
provided that each renewal, extension or rollover of such
an agreement for a new term of twelve (12} months or less
shall be considered as a new ''Short Term Sale".
"spot gas" shall mean gas sold under a Short Term Sale.
"Sp9t Gas Price• as to gas for a calend.u month shall
maim the arithmetical average of the t ...o highest index or
average prices (or the two highest prices, if there aro no
index or average price&) for the month atated ln availdble
publication• thdt collectively etate monthly price• for
spot qa.1 of~ered by at least five (5} principal purchasers
of gas in the Perinian Baein for gae to be re1old or
redelivared outside tho Per111ian Sa•in. Sellers and
Purchaser agree that as of the effective Time the
publication• used for thia purpose shall be •Inside
F.£.lt.C. 1 11 Ga• Market Report.• 4tld the monthly survey
distributed by Natural Gaa Clearinqhoqse, Houston, Texas,
but other such publications shall be utilized or
substituted at such time as "Inside P.E.ILC, '• Gaa Market
Report" and such survey by Natural Gaa Clearinghouse cease
to atate monthly prices for spot gas offered by at least
five (S) principal purch..ssers at 91111 in the Permian Basin
for gas to be resold or redelivered outside the Permian
Basin, provided t hat i f there are no such publications or
surveys of spot qa.s prices for ga~ produced from and
delivered f.ro111 the Permian B4sin that are serviceable for
t.he purpose contempla.ted herein, then "Spot Gas Pric•"
ehall be the 4.rithtnetical averaqe of t.he two highest prices
then beinq paid in the Pemi4n Ba.sin on such date or dates,
for spot gas in arms- length sales between nonatfiliated
parties, such prices to be appropriately adjusted ior any
difterenceu in qiJality.
"subrect Interests" sh!lll mean the Property and the
Leeses.
••subsurface rights • shall mean the eight r.o store,
allow or permit atora9• ot, in subsurface a..reas or
formations of the Property, oil and qas or mineral
substances that are not native to the Property, or wa1n:us,
product• or ony other substance, and . riqht• to use or
exploitation of caves or caverns in or under the P~perty,
whether any or all of such rights are part of the surface
estate or part of the mineral estate.
"taxes• shall mean severance taxes, ad valore~ taxes
and like t.sxes imposed by Gover!\11\ental Requlations.
"trea'tinq ·• shall mean proces'il.i.nq of gas for the
removal of contaminants such as water or hydroqen sulfide,
and not proces1inq for the recovery for sale of
constituents of the gas such as carbon dioxide, helium,
hydrocarbon liquids and sulfur.
3. Q..U,. Royalties on oil shall be O~ners · royalty shdre
of the oil produced or sold from the Subieso.lo or disposition of the oil from the Subject Interasts or use
of utili:o.tion of such oil on or off the Subject: InterGsta, but:
such purchases by Producer shall bw subject to termination at
the discretion of Owners by providing written notice to Producer
on or before the fifteenth day of the month prior to the month
Ln which Owners qesire to terminate purchases by Producer.
4. (UU..
(a) As to gas produced or to be produced from the
Subject Interests under ~ Short Term Sale, the royalties
&hall be owners· royaley 11hare of the gross proceeds for
the first sale or dispooition of the gas from the Subject
Interests, provided that such royalties never- shall be
lees than Owners• royalty share of the aqgreg&t• sum
derived by multiplying the Spot Caa Pr1ca of such qas for
the month or months covered by the Short Term Sale by the
reapective volumes of qas sold in such month or months
under tha Short Term Sale.
(b) tn the event Producer intends to make qaa
produced or to bo produced trom the Subject Int:ereet:s
subject to a Lonq Term Sale, Producer shall notify Owners
in writing of such intent prior to entering into such Lonq
Tar• S.slo and provide 011nera with complete information
reqardinq the buyer, price and other tarml and conditions
of the propoead Long Te:rill Sale. Producer shall give Owners
further written notice at such time as Producer proposes to
execute the instrument docwaentinq the Lonq Term Sale,
which notice shall include a complete, legible copy of such
i nstrU111ant:. !Nnera a hall have tifteen ( 15) business days
after receipt: of Producer·s notice containing a copy of the
instrument proposed for docU111antin9 th• Lonq Term Sale in
which to elect either to ratify same and co111111it Owners•
royalty ahare of gas to the Long Term Sale or to reject
same and take 011n•r• · royalty shar• of gas in kind,
provided that as to all gas sold under a Lonq Term Sale to
an af fl1 i ate of Producer, in addition to all other ~iqhts
granted herein, 011ners shall have the riqht to receive
their royalty share of such gae baaed on th• greater of (l)
the qroH procead11 for disposition of the gas from the·
Sgbje~t Interests or (ii) the Spot Gas Price of the gas so
sold mult!plied by tha respective volwnea of gas sold each
month under the Lonq Term Sale, provided that if at any
time or from ti~• to time there does not exist a Spot Gas
P.r ica tor qas disposed !rolft tha Subject Interests, then tha
royalties shal l be the market value of such gas as
established by reference to arms-l•ngth sales of gas in the
Permian B~•in between nonaffiliat•d part.le•, appropr~tely
adjueted for any differences in quality. I f Owner• e.lact
to ratify the Lonq Term Sale, Producer sha.11 us• all
roa11onanle efforts to havo ownors nal'llW term9 of paragraphs 4(4l and 4(bJ of this Royalty
Agreement.
(~) If gaa or casinghead gas or separated gas
re.sulting frClDI field sepa.raticin produced frcim the Subject:
Interests i9 processed at any location by or for the
account of P·r oducer, or by or for the account• of any
aff!lia.t-a of Producer, for the recovery and sale or other
disposition for value of liquid hydrocarbons, helium,
caxbon dioxide, sulfur, or any other elements of the gas
stream, then in lieu of royalties on gas provided in
paragraphs 4(a) and 4 (b) 1 t he royaltiee shall be owners•
royalty share of the groa1 proceeds less Ovnera• royalty
!!hare allocable portion of th• reasonable, direct costs
(excluding amortization and dapreeiation on pipeline and
plant investment and direct overhead associated theravith)
of procassi.ng :!Inch ga11 in ths plant for tha recovery of
such liquid hydrccarbosu, helium, carbon dioxide, sultur
and other element•, and th• royalties on th• residue gas
resulting from such proc•1•ing operation attributable to
qa1 produced from the Subject Interests shall be in an
a.mount and determined as provided in paragraph• 4(a) and
4(b) above; provided, however, that in th• event liquid
hydrocarbon•, helium, carbon dioxide, sulfur or any other
elements of the ga• streaJ11 are recovered and sold separate
from th• ba1ic 9as stream as contemplated in this
paragraph, the total royalties paid to Owners on such
production (after deduction of the above costs) never shall
be lesa than would have been paid to owners if the liquid
hydrocarl:lOns, haliWll, carbon dioxide, sulfur, or any other
elements of the gas stream had remained in, and been sold
as, part of the basic gas stream.
(e) Owners shall receive their royalty share ot the
gross proceeds for gas used or utilized on or off the
Subject Interests, such as gas used for fuel.
5. Subpurfoce Riahts. On subsurface rights in the
Property, the royaltia• shall be O'rlners' royalty share of the
market value for use or utilitation of such riqhtl as
established from time to tima by the greater of (i) arms-length
sales or leas~e of such rights in the Perinian Basin between
nonaffiliated parties appropriately adjusted for any differences
in quality, or (ii} gross proceeds.
~. Mineral Substances. On mineral substances in tha
Property, the royaltie• shall be owner•' royalty share of the
market value of mineral sub1tancas sold from the Property or
used or utilized off the Property for any purpos•, such ~alue to
be establi~hed from time to time by the greater of (i)
anis-len9th salee or leases of such substances in tha Permian
Basin between nonaffiliated parties appropriately adjusted for
any differences in quality, or {ii) gross proceeds.
7. ~eneral Terms. The following general terms shall
apply to tha royalties covered by this Royalty Agreements
(a) Producer will use its best efforts to obtain a
market for and sell oil and gas and mineral substances
produced from the Subject Interests 4t the maximUJll rate
possible given prudent op•rating !ltandards . eroducer also
will use its best efforts to qualify a ll oil and gas and
other mineral sub.s tances or rights produced or sold from
the Sub j ect Interests for the maximum legal sales price
under Governmental Regulations, if applicable.
(b) All royalties shall be determined and delivered
or paid to owners after deducting therefrom the following
costs:
6
(i) as to gas produced from the Subje~t
Interests, Owner s • roy.slty !!hare of Producar's monthly
ttarketinq Costs for such gas1 however, !or purposes of
thJ.a par.s9raph 7 ( bJ, Producer's monthly Marketing
Costs (whether actually incurred by Producer or an
affiliate of Producer or cha·r qad to the Producer by a
third party) shall not exceed ten (10) cants per MCF
and sh.sll be charqed only as to gas production put
t.hrough the !a.cil l cy for wl\J.ch the Harlcetinq Cosi:s are
successors, agents or as!iqns, of royaitie! that are
paat du~ shall not act as a waiver or e9toppel of its
right to receive or recover interest due thereon under
the provisions hereof. No tender or payment to Owners
of a sum less than the total amount due to owners
shall be dee'med a fu.ll settlement, whether by accord
or satisfaction or otherwise, notwithstanding a check
in tender of payment may contain language of
settlement or accord printed or otherwise inserted
thereon unless made and received in accordance with a
separate written agreement executed by Owners and
Producer.
(d) Producer shall maintain complata and accurate
book.a and records re9ardin9 the production, sale, use,
utilizatlon or laaae of oil and 9as or mineral substances
frorA tha Subject lnteras·ts and subaurfaee rights in the
Property, and a• to Producer ' s Hark•tinq Cost•. Upon
reasonable notice to . Prodl&Cer, Ownar• 1hall have th• right
to examine and copy, at O!fn•r•' oxpen1e, all book1,
racord1, documents, statement•, purchase agreements, sale
agreements, operating agreements and any other inst:i:umants
or records of Producer or an aff iliat• of Producer relatin9
to production volume•, qro•• proc . .d• of oil and qas or
mineral sub•tancea fro~ or in the Subject Int•r•ats, and as
to Producer's Marketin9 Costs. Suen ex41l'tination shall be
conducted at the offices of Producer during no:rmal busin•••
hours. Owners, or its agents or representatives, shall
have the further right, at owners• sole risk and expense,
to qo upon the Subject Intereats, one• each calendar year,
to inspect the Subject Interests for reconciliation of
owners' review of Producer's book• and records, and
verification of the existence and extent of facilities
related to Producer's Marketing Costa provided that owners
shall not have accese to the rig floor and Owners shall not
interfere with Producer's operations. Prior to Owners
qoinq upon the Subject Interests, Owners ghall give
Producer notice of their desire to go upon the 5ubjact
Interests and Producer shall arrange a mutually agreeable
time for inspection that is within thirty (30) days after
Producer's receipt of said notice. Owners• notice shall
include ~ description of those items it wishes to inspect.
Each inspection by owners shall be limited in d~ration to
. no lonqer than one (1) worlt day. Within a reasonable ·time
not to exceed ninety ( 90) d.ay• after receivinq 11. written
request from Owners, Producer also shall supply to owners
complat:e and accurate c:oi;iie• of al.l agreamttnts respacting
the sale or us• of oil and go.a, mineral substance• and
subsurface right•.
( e) The terms and provisions of this Royalty
A (9) In the event that Owners· royalty share of gas 1s
not committed to a Long Term Sale in accordance with the
provisions of this Agreement, than at any time and from
tim••to-tim• Owners may elect to take Owner•' royalty share
of ga• production in kind and use or market sa.m• for their
own account or to elect to deem royalty percentage of gas
as not being produced, to the end that Qlolnera • share of
production is stored and covered under the Bal4ncinq
Provisions provided below . Owne~!I shall make such election
bI providing wd.tten not.lee to Producer prior to the
£ tteenth day of the mont.h preceding the month in which
Owners intend to take q1u1 in kind or t:o store g,•u1;
likewise, Owners may terminllte the.ir: election to take gas
in kind or to store 948 by providing written notice to
Pi:oducar prior t:o the fifteenth day of th• inonth precodinq
th• month in which Owner• cea~• to tak• 9a• in kind or
store qae. In the event Owners elect to take its royalty
in kind, i t shall have the turther right to u~• any of
Producer's production, gathering and t:reatinq facilitie•
and thar11by incur only the exp•n11• of Any separat• 111aterin9
device nacaa•ary for Owner•' separate marketing
operation•. The Bab.n cinq Provi1ion• provided belo11 shall
be in effect in the event Ownar• ever elect to 1tore 9a•
under the provisions of thi1 paragraph, or in the event
Owner11 ever produce a greater share of production than
their royalty percentage due to their taking production in
kind. Any possible aala• by a party of the othor party ' s
share of production shall be only for such reasonable
periods of time as are consistent with the roinimWll need• of
the industry undor tho particular circum1tance•, but in no
event for a period. in excoss of one (11 year, and at all
timG• shall be subject to revocation at "i l by the other
party. In the av•nt Owners elect to take production in
kind, Producer shall transport, or use reasonable efforts
to clluee to be transported, Owners• royalty share of
production to a mutually agreeable point on Producer's or
affil iate of Producer's, gatherin9 ayste~, for redelivery
co Owners or Owners• agent, provided that Producer shall
not be r equired to enter into new agxaements '!'ith third
part.Les or to construct nav faoilitiaa to transport or
cause transportation of owners' production. In the event
Producer: ol: an affiliat.e of Producer so transports or
causes to be transported gas for Owners, Owners shall pay
the Karkatinq Costs for such transportation, if any, for
use of facilities installed by Producer or an affUiate of
Producer after the J?ffective Time, but not to exceed a
charge of ten ( 10) cants per MCP for the CJ••
transported. In the event Producer cau1oa a third party to
so
so trlln•port gas for Owners under an a9reement then
existinq bet:ween Producez: and thlld J?&rtY, Owner• shall pay
the fee charqed to Producer by the third party,as t o the
volume of Owners· gae eo traneportod. If Owne-1:11 cause a
third party to transport owners' gas, owner1 shall be
re•poneible for the fee charged by such third party.
8. Boloncinq Provisions,
(a) Notvithstandinq anything to the contrary in this
Royalty Aqreement, Lf in accordance vith the provisions
hereof, either party hereto takes and disposes o f less than
its percentaqe share of production dur i ng any calendar
month, than the volume not taken by such party may be taken
by the other party.
(b) These Balancing Provisions shall apply separately
to each cateqory established by Governmental Regulation for
the purpose of re9ulatin9 or deregulating the price of
production, i nc ludin9 but not li~itad to cateqories
estl.lblished by the Natural Gas Policy Act of 1918 and
9
raqulatione or orders o! tne federal Enorqy Regulatory
Coll\llliss1on or any $Uccessor or similar agency or
CommUll ion. rn the event a cateqory is revised, the
cateqory as revised shall be con•idered a nev and separate
category.
(C) The term "Cumu lative Underproduction• maans tho
amount by which the cumulative volume of production taken
by a paxty within a par~icular category J.s less than tho
cumulac.J.ve volume such party wa1 entitled to take within
9uch category according to its percentage i nterest/ the
tar111 "Cumulative Overproduction " means the amount by wl'lich
tile cumulativs volume of production taken by a party within
a category exceeds the cumulative volu111• that suoh party
was entitled to take within such category accordinq to its
percentage interest; tha term ·onderproducar" means a party
credited w.1.th Cumula1;lva underproduction; t.he term
·ov•rproducer• means a p11rty charqed with Cumulative
overproduction; and the torm "Make-Up Product.I.on• mean11 the
volume taic.an by a party to make up Cwnulative
Underproduction pursuant to Paragraph (&) below.
(d) On or before nim1ty (90) day• after the end of
each calendar month of production, Producer •hall furnish
to owners a written statement showing for each category (i)
tho total volu11• of production taken by eac:b party during
such month and (ii ) the Cumulativ• Overproduc:tion or
Cwnulative Underproduction, if any, ot each party a1 of the
end of that month.
(e) By giving written notice to Producer at least 15
d.?1ya before i:he baginnln9 of a calendiir month, a parey
$hall be entitled to take during that month, in addition to
it• full percentage interest share of produceJ.on, a volume
of Maka-Up Produotion e.q ulll to it• cumulative
Unde't'production, provided that to accol1111lodata such mak.. •up
the other party shall never be required to take less i;han
7St of its ~rcentaqe interest share of production durinq
the month, and provided that the right to take Make-Up
Produc:1;ion shall be subordlnate to th• right of Producer to
take i ts full percentaqe interest share of production from
t ime to tiJU• to satisfy the d•livara.bility test
requirements of any sales contract applicable to production
from the Pxoperty. Make·UP Production volumes shall be
applied aqainat Cuinulative Underproduction and Cumulative
overproduction on a first-1n~t1rst-out ba•is.
(f) If the parties have not achieved 11 volumetric
balance in production in all categories upon a perinanent
ceasai:ion of all production from th• Property, Producer
shall furniah to Ovner• 11 statement showing the final
Cumulative Overproduction and Cumulative Underproduction of
each party by category, and the month and year in which it
accrued. Within 120 days after receipt of Producer's
statement, each OVerproducer shall furnish to the
Undecproducar a statement showing th& value of its
Cumulative overproduction for each category, based on the
price the Overproduoer actually received fox the production
i n a sala durinq tne month(s) in which the Cumulative
overproduction accrued, lesa all payments made by the
OverptQducer pursuant to Paragraph (h) below. For
production sold by Producer, value for thia purpose shall
be based on the provi11ions of tha foregoinq royalty
reservationr for owners, value for this purpose shall be
based on the price actually received by Owners. Baaed upon
the statements furnished by Ove.rproducers, the net amount
owed by or to each party for all cateqories combined shall
be calculated by Owners and furnished to Producer in a
final cash ba.lancinq statement.
10
(g) Within 120 day• after receipt of Producer's tlnal
cash balancing stateme nt, the ovarproducer shall pay the
Underprodue4r in accordance with the statement and ~ithout
i nterest. To the extent any value used to calculate a cash
ssttlement hereunder is subject to refund by the
Overproducer pur9uant to Goverl\Jllental Requlation, the
Underproducer shall, prior to payment thereot, agree i n
writing to indemn.Uy the OVe:r:producer 11911.inst the
Underproducer ' a proportionate part of any refund (including
interest) which the Ovel;l)roducer shall be required to
mako . Any party may challenge any volumes or values or
amounts epecif i ed in any of th• statement• furnished under
Para9ra~h (f) above, in th• Sil.Ille nia.nner and subject to the
slllll• limitations as an invoice from a.n operator may b•
challanqed under a AAl?L Hod•l Form Operatin9 Aqraament or
the COPAS accouncing procedure thereto, using th• latest
printed forms of same at the tilll• ot th• challanqa, lofithout
alteration; it no auch printed fo:rra• ex.i•t at the tima of
chAllenge, than the mo•t similar document• than in qanaral
usa in tha oil and gae induat:ry shill be used.
(h) Each party taking production shall pay or cause
to be paid all production And oxa is• tax••, if any, on 9aa
taken and sold tor its account under th.Li B4lano1ng
Provi•ion. Horaovar, such party shall pay or oauea to be
paid all royaltia•, overrid1nc;r royaltia• and other payments
on production it is obligated by lav, by leas~ or by
contract to pay. Eaoh party hereto aqrea• to lndamnify and
hold harmlea1 tha Other partie• hereto against all claims,
loas1H or U.a.bilitia.s arising out of its failure to fulfill
such obligations.
9. Miscellaneous.
(a) All eKhibits or annexes hereto are incorporated
herein and by this reference made a part hereof.
(bl There shall be no reoordation of thia Royalty
Aqreement or ony mell\Orandum thereof,
(c) Anr notice, co111111unication, request, reply
advise (co'l actively, "Notice") provided or permitted by
or
this Royalty Aqraement to be 1!16da or accepted by either
party mu•t ba in writing. Notice may, unlaa1 oth•rwi11a
provided harain, be qiven or served by deposit.l.nq the Sllllle
in th• Un.it.ad State• mail, poatage paid, registered or
certified, and addr••••d to the party to be notified, with
return receipt requeated1 by delivering th• oOJQa to such
party, or. an agent of such party1 or by sending a po•t•pAid
telagrOlll, when appropriate, addra111ed to the party to ba
notified. Notice deposited in the mail in the manner
hereinabove de•eribed shall be effective upon such
deposit. Notice qivan in .uiy other manneJ:" shall b•
effective only if and when received by the party to ba
notified between the hours of 8100 A.M. and 4r00 P.M. of
any busines1 d4y lofith delivery made after such hours ~o be
deemed received the following business day . For the
purposes of notice, the addresses of the parties shall,
until changed as hereinafter provided, be as followes
Owners: Harrison I nteres ts, Ltd.
Te~aa Co111111erca Bank Building
707 Travis, Suite 1900
Houston, Texas 77002•3299
Attention1 Ed l Producer: For Notices as to all Marketing
Elections:
Meridian Oil Production Inc.
2919 Allen Parkway
Houston, Texae 77019'
Attention:
Director, Gae Supply and
Transportation and Exchange
For All Other Noticeai
Meridian Oil Production Inc.
2919 Allen Parkway
Houston, Texas 77019
Attention1 Vice President, Land
partiea hereto shall have the right from tima to
Th~
t111141 to their radpactive addreaae• 1 and each shall
chan~•
hav• r.1.qht to spacJ.fy 1u1 its address any other addre••
the
within the United State• ot America by at leaat f iva (S)
day• written notice to the otn•r party.
(d) This Royalty Aqreement, together with the Deed•
and Aaaiqrunents, contain the entire aqreement ot the
parties hereto, with reqard to the Nonpa~icipatinq
Royalties and the override• Ln th• Subject Interests and
there are no other agreements, oral or written, other than
the Deeds and the AsUqnments. This Royalty Agi-ee111ent can
ba 4111ended only by writt~n agreement signed by the parties
hereto, and by reference made a part hereof.
(e) If any ter~, provision, or c ovenant relating to
Owners' royalty or reatrict1ona imposed hereby is held by a
court of competent jurisdiction to ba invalid, void, or
unenforceable, the reservation of royalty interests
contained in the conveyaneeis ot even d.a te herewith and the
other tarJQa, provisions and covenant.a of this Royalty
Aqreemant shall not be affected thereby and th• remainder
of th11 terms, proviaiona, covenants and restriction• herein
contained shall remain in full force and affect and in no
way shall be affected, llnpa.l.red, or invalidated.
(t) For a period of twelve months after the Effective
Ti~e, both parties agree to use qood faith efforts to keep
the material ta.r:ins and provision• of this Royalty Agreement
confidential and not to disclose same to a third party, _.
e.xcept as may be required or compelled by Govarmnantal
Regul.ations or by order of a court of co11patent
jur.l.sdiot.l.on, provided that th• parties shall not be
required to keep confident.I.al information that already ls
public knowledge or chat any porson by reasonable means
could discover in the public domain. Th• terms of this
paro9raph 9( f) shall no.r. const1tute a condition precedent
and the breach of the terms of this paragraph 9(f) shall
not result in the right to alter, terminate or walve the
terms of this Royal ty Agree ment.
rN WITNESS WliER.EOF 1 this Royalty Agre·e ment haa been duly
executed in multiple counterparts (each of which ls to be deemed
an oriq ina~ for all purposes) by the parties hereto on the date
appearing oppo:s·it;a each pllrt:y • s s lgm1.tu:re. :
~ ~ f
...: ., .
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.
12
Dated this 22nd day of May, 1990 1 but effective for all
purpoaea aa of 8100 a.m., Central oayli9ht Savings Time, on May
22, 1990, which is the "Effective Time."
Aa ;~~4~7lb
IL\RRISON INTERESTS, LTD,
By1
Dan J, ~rrison !II
~ Pax_s..nai:
.,,~"'" ,,,.~, " ' ANNEXJ
10 Roya!tV Agreement
fan.J
J}EscrumoN OF LANQ
Di:atn Ranch:
The following land located in Edwards County, Texas:
Abstract Certificate Survey Original
liWlllw .lillmbu ~ .Q.cau1"
1219 833 15 HE&. wr Ry Co.
2115 833 16 HE&. wr Ry Co.
1220 834 17 HE.ft WfRyCo.
3549 834 18 HE&wrRyCo.
3550 622 204 CCSD & RGN'G Ry Co.
777 623 205 CCSD &: RGNO Ry Co.
LESS AND EXCEPT 13.53 ac:res out of Swvey IS; 11.89 acre.s out of Survey 16 and S.96
acres out of Survey 18 previously conveyed for highway purposea by deeds of record in
Volume ''N", Pago 480. aad Volume "N", Page ~. Deed Records oC Edward& County,
Teu.s.
Being the same land described ln that ccnain deed from Edna Wheat Beam. a.s grantor, 10
0. J. Harrison, as grantee, dated December 31, 194S, of record in Volume 3S, Page 437,
Deed Records of Edwards County, Texas.
Ilaod Ba.oi:b:
The following land located in Edwards and Sutton Counties, Texas:
Abst. SuIV. Cert. Original
lilL lio-- &._ .lll.W Graotce .Qlwuy
19 I 1369 C·ll Pc~Brown Sutton & Edwards
i2 2 68 C·ll J. s. Clift Sutton /Ji. Edwards
528 3 908 C·ll Jno. V. Sloan Sulton
541 4 177 C·Ll Josephine TiDlDlon.s Sutton
507 s 166 C·ll ThomasOtls Sutton
818 l 568 CCSD & RGNO Ry Co. Sutton & Edwards
3026 2 568 C·ll CCSD & RONG Ry Co. Sutton & Edwards
1 7 13U W.A.Atldns Sutton & Edwards
490 6 562 C·ll R. MattbC\W Sutton
26 139 590 CCSD & RONG Ry Co. Sutton
27 217 629 CCSD & RONG Ry Co. Sutton
1128 8 534 C·ll Rhoda Pruitt Sutton & Edwards
1645 9 1567 C·ll Mn. E. J. ~son Sutton
1129 228 634 CCSD & R . NG Ry Co. Sutton
1130 138 589 CCSD ck RONG Ry Co. Sutton
1712 218 629 CCSD ck RONG Ry CO. Sutton & Edwards
Being tbe same land desc:ribed in that certain deed from Mr$. Edith Bond ct al, as ~rantor~
to D. J. Harrieon dated Novomber 30, 194\,of record In Volume 41, Page 399 oft e Dee
Records of Sutton County, Tc!tas. and in . olume 35, Pase 150 of the Deed Records of
Edwards County, Teitas.
A1u1elt Ranch:
The following land, consisting of three blocks located in Edwards and Sutton Counties,
Texas:
EIBSI BLOCK
Abstract Survey Certificate Original
liwnW NwnW 1illm.lw .Qw1lu
846 3 4/783 GC &. SF Ry Co.
847 s 4/784 OC&SFRyCo.
852 13 4/788 GC&SFRbCo.
1596 111 516 CCSD &t. R NG Ry Co.
779 211 626 CCSD & RONG Ry Co.
·-·
Abstract Suzvey Certificate Original.
~ ~ 1:iwnl2Gc ~
780 213 627 CCSD & RGNG Ry Co.
70.S pan s 2064 Mrs. R. G. A.le.xaOOcr
29.30 210 625 CCSO & RGNO Ry Co.
3067 220 630 CCSD &. RONG Ry Co.
2601 212 626 CCSD & RONG Ry Co.
1903 4 4/783 GC &. SF Ry Co.
2039 12 4/787 GC&SFRyCo.
2038 14 4/788 GC&SFROCo.
2040 110 S1S CCSD &; R NG Ry Co.
All of said surveys being i.n Edwards County, Texas. The R. G. Alexander Survey No. s
described above is being limited 10 the trut covered by deed from Frank Cloudt. Sr.. 10
A~ Moos dated Dc~cmber 29, 1917, o( record In Voh.une 19, Page 633, Dc¢d Record.\
of a.rds County, Teras.
Sl!OOW2 ULQCK
Abstract Survey Certificate Bloelc Original
~ Hl&mtict Nwntw Nwnhu .o.taD1u
1316 92 566 CCSD & RONO Ry Co.
37 . 93 561 CCSD & RONG Ry Co•
1036 82 561 CCSD & RGNO Ry Co.
.. 62 103 572 CCSD & RGNO Ry Co.
1317 104 572 CCSD A RONO Ry Co.
38 Nl/2 83 562 CCSD & RONG Ry Co.
697 83 0/632 14 TWNORyCo.
1038 106 0/643 14 TWNGRyCo.
709 107 0/644 14 TWNGJ(Co.
1037 12 180 c HE& Ry Co.
386 13 181 c HE & WT Ry Co.
All of suci. surveys being In Sutton County, Te:1as.
nnRJl J;U.OCK.
Abst. Swv. Cert. Original
Na- .tUL... lil>- Oar.DI!:~ ~
2050 90 56S CCSO & RGN'O Ry Co. Edwards
36 &: 825 91 566 CCSD & RON'O Ry Co. Sunon & Edw1rds
3S 105 573 CCSD & RONO Ry Co. Sutton
1714&2032 106 573 CCSD & RGNG Ry Co. Sunoo 4' Edwards
1595 107 574 CCSD & RONG Ry Co. Edwards
2506 112 576 CCSD de RONO Ry Co. Edwards
33 & 828 113 571 CCSD & RONO Ry Co. S1.1ttoll &. Edwards
1180 114 577 CCSD & RONO Ry Co, Sutton
34 115 578 CCSD & RONG Ry Co. Sutton
1185 126 583 CCSD & RGNG Ry Co. Sutton
31 127 584 CCSD & RONO Ry Co. Sutton
32 207 624 CCSO & RONG Ry C.O. Sutton
ms &2049 208 624 CCSD & RONG Ry Co. Sutton &: Edwards
178 209 625 CCSD & RONG Ry CO. Edwards
2673
2602 El 2
wy.2 214
214
61:7
61:1
CCSD & RONG Ry CO.
CCSD &. RONG Ry Co.
Edwards
Edwards
28 Ir, 781 21S 628 CCSD ct RONG Ry Co. Sutton & Edward5
1179 216 628 CCSD & RGNO Ry Co. Sutton
782 219 630 CCSO &: RONG Ry Co. Edwards
Bein~ tbe lan4s covered by that ce1taia deed from Oscar Appelt et ~ as gr_an1or, 10 Dall. 1.
Hamson. dated Se~tcmber 17, 194S of record in Vohune 42, page 360 of the Deed Records
of Sutton Couniy, Texas, and in Volume JS, Page 4l9, Deed Records of Edwards County,
Texas, as reswveyed.
Said lands being subject to that cenain Boundary Agreement by and between O. J.
Harrison and W. L Miers dated January 24, 1956, of record in Volume 40, Page 369, Deed
Records of Edwards Couoty, Tcxa.s.
i"
3
j
1
J
l
l
NI of Sucve~ 8l(A-63) and 116 (A-1647), originally granted lo the CCSD &. RONG Ry.
Co., located in Sutton ounty, Teus.
jl/1U1lo/lloAI
l:N!IZJ: :z
(To RoJ•ltJ A()'re. .ent•
OESCRIP1ION or t,EAses
1. Oil, qas and ~ineral le••• dated Novelllll•r 5, 1971, recorded in
Voluae z-17, paqe 256 ot the Hiso•ll&neoua Records or Edward•
County, Texas, froa W.L. Miers and vite, Martha Miera, aa
le•aor, to R.c. Roberta, a• la••••• coverinq survey 4 (A-
1250), cert. Ho. 4, Menu·d County Sobool L4nd, Oriqinal
Grantee, SAVB and EXCEPl' 320 acre• committed to the Nortl\
Aln•rican Royal tiG·S, Ino. No. :i Miera '"'" Well and 320 acres
committed to th• North .a.i.erican Royaltiea, Inc. tlo. l 1t4•
Well, containing a total of 4 1 428.4 acree, more or les•,
sW>ject: to the tallowing r•l•a••• as to sl.lrfac• ar••• and
subaur!ace depths:
a. Partial r•l•H• Of oil, gaa and ainaral l•••• dated April
1, 1980, racordad in Volwoe .z-29, page 762 or th•
Hiscellaneoua Deed Record• of E.dward• County, Toxa•1 and
b. Partial r•l•••• ot oil, qaa and mineral leas• dated
February 24, 1982, recorded in Volume Z-32, pag• 864 of
th• Miscellaneous D•ed Record• of Edwards County, Texas.
2. Oil, gas and 1dneral lease dated November 18, 1971, recorded
in Volume 92, paq• 156 ot th• Deed R•corda ot Sutton County,
Texas, trom Larmon L. cox and wit•, Paarl cox, aa le.saor, to
R.C. Roberts, as les•e•, only i.naofar as such lea•• covers the
Northeast Quarter (NB/4) ot Section 70 (A-1039), ccso ' 'RGNG
Railway co. survey, and the Soutllweat (SW/4) ot Section 70 (A-
1672), ccso" RGNG Railvay co. survey, botll in Sutton County,
Texa•.
l. Oil, qas and mineral lease dated June 16, 1971, recorded in
VolU111e 90, paqe 23!! of the Deed Record• ot Sutton county,
Te1Ca11, from L.L. HoCandle••• et al, a• le••or, to North
.!Uaer:ican aoyaltiea, Inc., aa le•see, only inaofar ae such
lease covera the southeast Quarter (SE/t) ot Section 83 (A-
38), Cartiticat• 562, ccso and RGNG Railway co. oriqinal
Grantee, Sutton County, Texa•.
4. oil, 9a• and 111ineral lease dated June 20, 1972, recorded in
Volume 96, paqe 494 ot the O••d Recorda ot Sutton county,
Texa• fro• Harold c. Stuart and wit•, Joan Skelly Stuart, a•
lesaor, to North Alll•rican Royal ti••• Inc., a• les•-· only
insofar as such lease covers the south•a•t Quarter (SE/4) of
section Bl (A-l8), ccso and RGNG Railway co. survey, Sutton
county, Texas.
5. Oil, qas and mineral lease dated July 7, 1972, recorded in
Volume 96, paqe 497 ot tbo Deed Record• of Sutton county,
Texas, from Xirby Petroleum Co., as lessor, to North American
Royalties, Ina., as les•ee, only insofar as aucll lea•• covers
the Southeast Quarter (SE/4) ot Section BJ (A-38), CCSD and
RGNG Railway co. survey, Sutton county, Texas: and
6. Oil, qas and mineral lease dated July 19, 1972, recorded in
Volume 96, paqe 297 of the Oeed Records ot Sutton County ,
Texas trom Historical Preservation, Inc., as lessor, to HNG
oil Company, as lessee, only insofar as such lea- covers the
southeaat Quarter (Sl!:/41 Section 83 (A-38), ccso and RGNG
Railway co. SUJ."Vey, Sutton county, Taxa:11.
The interest in tile Uve (5) leaaea listed above as item
nu'IDbers 2 throuqh 6, inclusive, is limited to depths from tne
surface down to so !~et below the base of th• · canyon Sand
Formation.
]
tl
l
~
1. Oil, qas and ~inaral lea9• dated June 1, 1972, recorded in
Vol um• 96, paq• 62 o! the Oeod Reco~d• or Sutton County,
Texas, rrom Harvey ~. Heller and Kartey A. Heller, Jr., as
lessor:, to Dan J. Harrison, Jr., aa le••••· coverinq Section
83, (A-697) , Certit'icat• Ho. 0/6J2, Block 14, TWNG Ry. Co.
survey, sutton County, Texa•.
Sl357(2)
ANNW[3
(to Royalty /\gre~ent)
A. All insO"l1111ents described below are dated May 22, 1990.
B. The grancee or assignee in each insaument is Meridian Oil Production Inc.
C. References below to volume and page recording dara IU'e to w Deed Rei:ord.s
of Sucron County, Texas, and to the Deed Records or MiscellaneoU$ Deed
Records of Edward County, Texas, as indicated below.
O. "M/A" means not applicable.
Recording Pata
Edwards Sutton
Gmntor!Assimo[ ~ f&!mlx
1. SpeciaJ Wa.tTanty Harrison lnterests, Ltd., Vol: Z-47 Vol: 244
Deed (Minerals) Dan J. Harrison Ul and Page: -MS Page; 48
Bruce P. Harrison. Misc. Deed
R.ecords
2. Special Wammty Dan J. Harrison m Vol: Bl Vol: 244
Deed (Surface) Page: 791 Page: 37
Deed Recordll
3. Special Warnuny Bruce F. Harrison Vol: Bl Vol: 244
Deed (Surface) Page: 785 Pase: 26
Misc. Deed
Records
4. Special Wanamy Dan J. Harrison Ill Vol: N/A Vol! 243
Deed (State Tract) Page: N/A Page: 389
5. Special Warranty Bruce F. Harrison Vol: N/A Vol: 243
Deed (State Tract) Page: N/A Page: 396
6. Assignmmr Harrison Interests, Ltd., Vol: Z-47 Vol: 244
Dan J .. Harrison !U and Page: 430 Page: 12
Bruce F. Hamson Misc. Deed
Records
7. Quitclaim Deed Harrison Interests, Ltd., Vol: N/A Vol: 244
Dan J , Harrison Ill and Page: N/A Page: B
Bruce F. Harrison
Signed for Identifkation Purpo$es:
ME~ OlL PRODUcnON INC. HARRISON INTERESTS, LTD.
ar-.hhE. ~ . ,.
Title: ~A • "· t:->_
,(~di..,~,,-
'"Name:
Title:
ux J. naqison
General Partner
H.~t1,.1
,
ROYALTY AGREEMENT
2. Definitions.
“central facility” shall mean the final set of heaters, separators, meters and tanks that
are operated as a unit and into which production from more than one oil or gas well on the
Subject Interests is gathered for final treating and measurement prior to delivery to a gas
transmission line owned or operated by a principal purchaser of gas in the Permian Basin..
“gross proceeds” shall mean the entire economic benefit and all consideration in
whatever form received by or accruing to Producer or an affiliate of Producer, including but
not limited to sales proceeds or proceeds or benefits of an exchange, prepayments for future
production, reimbursements for severance taxes or for other taxes or costs, settlements or
payments for the release or amendment of a sales contract or arrangement, and take-or-pay
payments or settlements and the like, and any insurance proceeds from lost or destroyed oil
and gas, provided that “gross proceeds” shall not include any fee or charge for services
(transportation, compression, treating and the like) relating to gas produced from the Subject
Interests after such gas leaves the Subject Interests. In the event Producer transports, or
causes to be transported, gas production from the Subject Interests on a gas transmission line
to a market or sale “gross proceeds” for such gas shall be determined after deducting any fees
or charges incurred by Producer from the owner of the gas transmission line for such delivery
or transportation to such market or sale; such fees or charges shall be for transportation of
gas after it leaves facilities to which Marketing Costs, if any, relate and shall exclude fees or
charges of Marketing Costs.
“Marketing Costs” shall mean:
(i) the reasonable, capital costs of property actually installed by Producer
or an affiliate of Producer after the Effective Time, which property:
(a) is depreciable for purposes of the Internal Revenue Code of
1986, as amended; and
(b) is required to be installed downstream from a central facility
in order to deliver gas produced from the Subject Interests to a gas
transmission line or otherwise to a market; and
(c) is part of a facility to transport gas produced from the Subject
Interests from a central facility to a gas transmission line or is part of a
facility compressing or treating such gas as required for delivery to such a gas
transmission line; and
(ii) charges made by a third party that is not an affiliate of Producer
directly attributable to property actually installed after the Effective Time, which
property:
(a) is installed downstream from a central facility in order to
transport gas produced from the Subject Interests to a gas transmission line
or otherwise to a market; and
(b) is part of a facility required to transport gas produced from the
Subject Interests from a central facility to a gas transmission line, or is part
of a facility compressing or treating such gas as required for delivery to such
a gas transmission line.
As to property actually installed by Producer or an affiliate of Producer, Marketing Costs
shall be calculated as a monthly charge on a per MCF basis for the facilities to which the
Marketing Costs relate, with such Marketing Costs amortized on a straight-line basis for the
expected life of such facilities and based on the entire design capacity throughput of the
facilities. Marketing Costs charged to Producer by a third party shall be the rate actually
charged to Producer.
4. Gas.
(a) As to gas produced or to be produced from the Subject Interests under a Short
Term Sale, the royalties shall be Owners’ royalty share of the gross proceeds for the first sale
or disposition of the gas from the Subject Interests, provided that such royalties never shall
be less than Owners’ royalty share of the aggregate sum derived by multiplying the Spot Gas
Price of such gas for the month or months covered by the Short Term Sale by the respective
volumes of gas sold in such month or months under the Short Term Sale.
(b) In the event Producer intends to make gas produced or to be produced from
the Subject Interests subject to a Long Term Sale, ...
(c) If the gas produced from any well situated on the Subject Interests shall
contain in suspension condensate, gasoline or other natural gas liquid hydrocarbons that
economically can be separated from the gas by the installation by Producer of traps,
separators or other mechanical devices, then Producer shall install such devices on the
surface of the Property, and Owners shall receive royalty on the condensate, gasoline or other
natural gas liquids so recovered in accordance with the terms of paragraph 3 of this Royalty
Agreement, together with royalty on the residue gas in accordance with the terms of
paragraphs 4(a) and 4(b) of this Royalty Agreement.
(d) If gas or casinghead gas or separated gas resulting from field separation
produced from the Subject Interests is processed at any location by or for the account of
Producer, or by or for the account of any affiliate of Producer, for the recovery and sale or
other disposition for value of liquid hydrocarbons, helium, carbon dioxide, sulfur, or any
other elements of the gas steam, then in lieu of royalties on gas provided in paragraphs 4(a)
and 4(b), the royalties shall be Owners’ royalty share of the gross proceeds less Owners’
royalty share allocable portion of the reasonable, direct costs (excluding amortization and
depreciation on pipeline and plant investment and direct overhead associated therewith) of
processing such gas in the plant for the recovery of such liquid hydrocarbons, helium, carbon
dioxide, sulfur and other elements, and the royalties on the residue gas resulting from such
processing operation attributable to gas produced from the Subject Interests shall be in an
amount and determined as provided in paragraphs 4(a) and 4(b) above; provided, however,
that in the event liquid hydrocarbons, helium, carbon dioxide, sulfur or any other elements
of the gas stream are recovered and sold separate from the basic gas stream as contemplated
in this paragraph, the total royalties paid to Owners on such production (after deduction of
the above costs) never shall be less than would have been paid to Owners if the liquid
hydrocarbons, helium, carbon dioxide, sulfur, or any other elements of the gas stream had
remained in, and been sold as, part of the basic gas stream.
(e) Owners shall receive their royalty share of the gross proceeds for gas used or
utilized on or off the Subject Interests, such as gas used for fuel.
7. General Terms. The following general terms shall apply to the royalties covered
by this Royalty Agreement.
(a)...
(b) All royalties shall be determined and delivered or paid to Owners after
deducting therefrom the following costs:
(i) as to gas produced from the Subject Interests, Owners’ royalty share
of Producer’s monthly Marketing Costs for such gas; however, for purposes of this
paragraph 7(b), Producer’s monthly Marketing Costs (whether actually incurred by
Producer or an affiliate of Producer or charged to the Producer by a third party) shall
not exceed ten (10) cents per MCF and shall be charged only as to gas production put
through the facility for which the Marketing Costs are charged; and
(ii) taxes applicable to Owners’ royalty share of production.
Owners’ royalties shall bear no other costs or expenses of any kind:
(g) In the event that Owners’ royalty share of gas is not committed to a Long
Terms Sale in accordance with the provisions of this Agreement, then at any time and from
time-to-time Owners may elect to take Owners’ royalty share of gas production in kind and
use or market same for their own account or to elect to deem royalty percentage of gas as not
being produced, to the end that Owners’ share of production is stored and covered under the
Balancing Provisions provided below.
APPENDIX C
I
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So11nr,< F-1e1d
583
APPENDIX D
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v
( ----
~---- | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430079/ | John Hamilton, late of Boone county, Iowa, was the owner of 120 acres of land located in said county, upon which he and his wife, Rebecca Ann, and an unmarried adult son, L.J. Hamilton, resided at the time of John's death in 1914. There were two other children, Mrs. Carlson and Mrs. Moss, plaintiffs and appellees herein. After the father's death, the children had a mutual understanding, in which the mother acquiesced, whereby the son, who during his entire lifetime had resided on this one farm, should have the farm at an agreed price of $160 per acre, and the two girls should have their share in money, the mother to have the use, rents, and profits from the 40 acres constituting the homestead as long as she lived, and the payment of the girls' share in the purchase price of the homestead 40 was to be deferred until after the mother's death. The testimony of the parties in reference to this matter as to the homestead 40 is not in entire accord, but we think the entire record bears out the above statement. Accordingly, the mother and daughters conveyed the 80 other than the homestead to the son, and he in turn paid each of the girls in cash her one-third in the purchase price of the 80. At the same time the children all joined in conveying the fee-simple title to the homestead 40 to the mother.
On April 20, 1915, the mother deeded the homestead 40 to the son, in consideration of $1.00 and love and affection; the deed containing the following proviso:
"Subject to the payment to my daughter, Effie Della Hamilton Carlson and to my daughter, Pearl Maud Hamilton Moss, each, the sum of $2,133.33 on or before 5 years after my decease. Said sums to draw 5% per annum int. from my death, payable annually. Reserving to myself the use, occupancy and control of said premises during my natural life."
This deed was delivered to the son, and for a time kept in a box referred to as the "son's box" but to which the mother had access. A few years later, with the mother's knowledge and consent, the son placed the deed of record. The son continued to reside upon this place, paying the mother rent for the 40.
It clearly appears from the record that this deed was understood *Page 531
and intended to be just as its terms express at the time it was executed, and no question was raised about it until the financial depression began to squeeze the value out of this land. The son's own testimony shows this. He said: "The way we prepared it, it was all right at the time. It was about four or five years back, I should say, when my mother and I decided it wasn't right." Likewise the mother testified: "Mr. Snell drew up the deed and asked me if it was all right at that time, and I said yes." The evidence shows the farm as a whole was at the time worth the purchase price paid by the son of $160 per acre. The son was a willing purchaser. He was 46 years of age and says: "I had always wanted the farm." All through the period of inflated or boom prices, when this land was worth double what the son paid for it, there was not a murmur of discontent from any one about this deal, not even from the girls, although at that time it would appear that the son had made a large profit on his investment. In 1934 the mother, who was 87 years of age, said she "thought" it was not fair to the son, and she asked the girls to make things right. The girls in substance said they did not complain when the land went to $400 per acre and the brother ought to stand by his bargain, and they refused to do anything about it. Thereupon the son and his wife deeded the 40 back to the mother, and the mother in turn on the same day, to wit, August 6, 1934, deeded it back to the son, reducing the cash payment to each of the girls from $2,133.33 to $800, this deed reciting that the $800 provision was in lieu of the $2,133.33, and that the former deed was canceled and annulled.
[1] On the 7th of November, 1934, this action was commenced to cancel and set aside these last two deeds and for injunctive relief against disturbance of alleged vested rights in the plaintiffs by virtue of the former deed executed April 20, 1915, and for general equitable relief. The trial court found, and rightly so, that the deed executed by the mother to the son on April 20, 1915 created a valid charge in favor of the plaintiffs against the land therein described, in the sum of $2,133.33 each, payable on or before five years after the death of the mother, and that the latter deeds should be canceled and set aside. This was not a testamentary disposition of this 40 acres to take effect only at the death of the mother, coupled with a burden upon the donee which he was at liberty to accept or reject after the death of the mother. This was an out and out conveyance of the title *Page 532
in præsenti to the son, made in accordance with a previous plan and understanding between all the parties that the son was to have the farm at a fixed price, the girls to have theirs in cash on the same basis as to value. This deed was accepted and retained by the son for 19 years, and was beyond the power of the mother to recall as against the son, and was therefore binding upon the son to carry out the burden cast upon him in favor of his sisters, and was a charge upon the land. Schrader v. Schrader, 158 Iowa 85, 139 N.W. 160; In re Estate of Phearman,211 Iowa 1137, 232 N.W. 826, 82 A.L.R. 674. Not that the mother was under legal obligations to make the conveyance in the way and manner arranged by the children, but the fact that there had been this understanding and that this deed was in accordance with such plan has a vital bearing on what the mother intended and as to how the son understood it to be when he accepted the deed.
[2] The mother, in executing this last deed to the son, attempted to treat the former deed as testamentary, saying that she "believed" that she had a right to do this, and by executing this second deed to the son reduce the amount which she had previously given to the daughters as she would and could do by way of codicil to a will. The record clearly shows, and one cannot read the same without coming to the conclusion, that this was an afterthought on the part of the son and the aged mother to change a completed transaction which had turned out to be burdensome to the son into one more favorable to the son. It should be noticed that the mother's interests are in no way affected by the execution of the latter deed. Much stress is laid upon the alleged fact that the girls were not consulted and had no knowledge of the provisions in their behalf contained in this first deed. We do not believe the record will bear out this contention. However, it seems to be the rule quite generally expressed by the courts that a conveyance of this character made upon the condition that the grantee shall pay a specified sum of money to a third person, the acceptance of the conveyance by the grantee which includes such a clause creates a covenant on the part of the grantee to discharge the obligation imposed, and creates the relation of trustee and cestui que trust between the grantee and the persons for whose benefit the payment is to be made, without any act or assent on the part of the beneficiary.
Koch v. Streuter, 232 Ill. 594, 83 N.E. 1072, at page 1075. In *Page 533
the case of Rodgers v. Reinking, 205 Iowa 1311, at page 1319,217 N.W. 441, 444, we find this language: "It was unnecessary that George [the donee] assent to the contract, or that he have knowledge of its existence."
We are abidingly satisfied that the trial court reached the correct conclusion, and that the case should be, and is, affirmed. — Affirmed.
DONEGAN, C.J., and ALBERT, KINTZINGER, ANDERSON, RICHARDS, PARSONS, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430080/ | One Junger obtained a judgment in the Monona County district court against the appellee, Wertz. Execution was issued on this judgment, and levy was made on the 19th day of November, 1923, on certain property not involved herein. On December 14th following, certain other personal property was *Page 306
levied upon, under the same execution. At the time of the making of this levy, the officer called upon Wertz to select his exemptions, and he selected a certain team of horses from among several head of horses then in his possession, and a wagon and harness, as his exempt property. The property not thus selected as exempt was on that date levied upon by the deputy sheriff.
On the 15th of December, by virtue of the same execution, the officer levied on the Ford automobile which is the subject of this controversy. On the 18th of December, notice was served upon appellant, demanding the release of said automobile, claiming the same as exempt from execution. It was not released, and on the 11th of January, 1924, this action was commenced against the officer, to recover damages for levying the execution on exempt property. On the trial, the jury found for appellee, and assessed the value of the car at $175, and also allowed $325 for the use of the car.
Appellant insists that it was error for the court to submit to the jury the question of the value of the use of the car. Appellee responds by saying that such is the 1. EXECUTION: rule announced in the cases of this character, levy: and cites Cook v. Hamilton, 67 Iowa 394; Hartley
wrongful State Bank v. McCorkell, 91 Iowa 660. He seems, levy: however, to have overlooked the fact that both damages. of these cases were overruled in Becker Degen v.Staab, 114 Iowa 319, and Powers v. Benson, 120 Iowa 428, where the rule is announced that, in cases of this character, where the plaintiff takes a money judgment, he is limited to the value of the car plus 6 per cent interest, and is not entitled to anything for the loss of the use of the car.
As noted above, there were three levies made under the one execution. It is undisputed in the record that, at the time of the making of the second levy, appellee, at the request of the officer, selected a team, wagon, and harness as 2. EXECUTIONS: his exempt property, and on the next day, under property the same execution, the sheriff levied on the exempt: automobile. Assuming that the record shows facts estoppel. from which it could be held that, under proper circumstances, the automobile was a vehicle, within the meaning of the exemption statute, the appellant pleaded and proved that, at the time the levy was made, the appellee had been called upon, the day before, to select his exemptions, and he selected the team, wagon, and harness. *Page 307
Having so done, appellee cannot play fast and loose with the officer by attempting to switch exemptions, as attempted in this case. No authority is cited by either party on this proposition, and there is little to be found. However, the case of Rivet v.Murrell Plant. Mfg. Co., 121 La. 201 (126 Am. St. 320), lays down the rule that, having made a selection in the same proceeding, one is by such selection estopped from subsequently claiming other and different property from that which was selected. We said in Parker v. Haley, 60 Iowa 325, that, when a debtor makes his selection, it is the duty of the officer to respect said selection. That is exactly what the officer did in this case. It does not lie now in the mouth of the debtor to claim that this automobile was exempt, under these circumstances. Appellant having pleaded this defense of estoppel and proven it on the trial, the motion to direct a verdict in favor of appellant, filed at the close of all the testimony, should have been sustained.
The errors pointed out necessitate a reversal of the case. —Reversed.
De GRAFF, C.J., and EVANS and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430081/ | The action is in equity, to foreclose a real estate mortgage securing three notes aggregating $4,950. The notes are renewals of a note originally given by the appellants for stock in the American Bankers' Securities Company. The 1. BILLS AND original note was given in 1919, and on NOTES: September 28, 1920, was renewed by a note validity: secured by mortgage. There appears to have been renewal with another renewal; but, be that as it may, on knowledge of April 1, 1923, the notes and mortgage in suit fraud. were executed in renewal of the then outstanding note and mortgage. The original note was taken by the appellee bank as collateral security for a loan to the American Bankers' Securities Company, and all the renewals have been so held.
The defense presented was that the original note and the stock subscription for which it was given were procured by fraud; that the renewals were given before the fraud was discovered; and that the appellee was not a holder in due course. The bank claimed to be a holder in due course, and that, by renewing the note with knowledge of the fraud, appellants waived *Page 795
any defense based upon fraud in the inception of the original note.
The appellant C.B. Heizer was a stockholder in the American Bankers' Securities Company, prior to the giving of the original note, and was a member of the board of directors of that company in 1920. This situation is relied on by appellee as showing that, when appellants thereafter renewed the notes, they did so with knowledge, or the means of knowledge, of the claimed fraud.
The representations which the evidence tended to show were made to induce appellants to purchase the stock, so far as they were shown to be false, were concerning matters of which C.B. Heizer, while serving as a director of the corporation, had the fullest opportunity to learn the truth. Many of them related to matters which it was his duty as a director to know. Not only would the most ordinary diligence on his part have disclosed the truth, but a proper performance of his duty as a director would have sufficiently revealed the facts as to the organization and operations of the company to have put him upon inquiry. We think it clear that he must be held to have waived the defense of fraud when he knew, or by the exercise of ordinary diligence could have discovered, the truth in respect to the representations made to him, and thereafter repeatedly renewed his obligation. Farmers Merch. Sav. Bank v. Jones, 196 Iowa 1071; Grimes Sav. Bank v.McHarg, 197 Iowa 1393; Sullivan v. Gaul, 198 Iowa 630; Anthon St.Bank v. Bernard, 198 Iowa 1345; National Bank of Decorah v.Robison, 199 Iowa 1044; State Sav. Bank v. Deal, 200 Iowa 490.
The waiver is conclusive of appellants' liability on the note, 2. BILLS AND whether the bank was a holder in due course or NOTES: not. National Bank of Decorah v. Robison, supra. holdership We therefore have no occasion to determine that in due question. The decree is right, and it is — course: Affirmed.
when issue immaterial.
FAVILLE, C.J., and EVANS and De GRAFF, JJ., concur. *Page 796 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430083/ | Respective counsel for the contending parties unite in the statement that the case of Davidson v. Henry L. Doherty Co.,214 Iowa 739, 241 N.W. 700, is determinative of the case at bar unless it be overruled herein. The cited case was an action by Davidson against the same defendant herein, and was predicated upon a cause of action identical in its issues with that herein. The arguments of counsel in both cases are substantially identical. The material facts were stipulated in each case. That the defendant was never personally within the state of Iowa is conceded by the plaintiff. It is likewise conceded that the defendant personally established his office in Iowa and caused his name to be placed upon the office door and caused all business to be transacted in his name and not otherwise. The question raised is whether it is legally possible by force of any statute of Iowa, for the courts of Iowa to acquire personal jurisdiction of a nonresident who is doing business within the state of Iowa, if such nonresident has never in fact brought his person within the borders of the state. The argument of appellant herein is the fair equivalent of a petition for rehearing in the Davidson case. The legal questions now raised herein were all presented in the Davidson case, and were very fully considered therein. Decision was attained by a divided court. The majority opinion necessarily prevailed. The reasons pro and con for the respective opinions are fully stated therein. That the questions thus considered are debatable and close may be readily conceded. They have been so regarded by the judiciary of the country for many years. The ultimate question has been often approached, but never quite decided. A citation of the Davidson case as a precedent is an all-sufficient argument for the decision of this case. The only door of argument open to the appellant is to seek the overruling of the opinion in the Davidson case. The fact that the decision was close and doubtful *Page 531
is urged by the appellant as a reason for its overruling. Such reason is not adequate. We were under the same duty of original decision whether the case were close and doubtful or otherwise. There are strong practical reasons why we should not be swift or willing to overrule a decision which has been arrived at after full consideration and without inadvertence or misunderstanding. As a precedent it has become a practical verity; and no less such because it is doubtful, or deemed so. It became at once a beacon to trial judges and a rule for the decision of other cases. To treat a question thus settled as still open is to convert the beacon into a will-o'-the-wisp and to destroy, quite, the force and effect of the law of precedent as a guide to the rights of litigants. And this is no less true even though the decision shall have been rendered by a divided court. Divided opinion in arriving at a decision is not uncommon or inappropriate. Butafter decision the court ceases to be divided thereon and becomes unanimously obedient to the precedent. If the judicial rule were otherwise it would subject all precedents to a re-discussion and reconsideration with every change in the personnel of the court. Such a course would be quite intolerable. Since the decision of the Davidson case, there has been a substantial change of personnel in this court. If we were called upon to realign our membership in the reconsideration of previous cases supposedly doubtful, it would necessarily result in putting the stamp of uncertainty upon every precedent. If a majority of us were disposed to overrule the Davidson case, and should vote accordingly, we would, or might, still be a divided court and be still confronted with as many reasons for a later realignment to the contrary, as confront us now. Precedents are the stepping stones of the law in its goings. Once placed, they should not be lightly displaced. Such, broadly, is the reason why an appellate court consents to the overruling of a prior decision only in a very exceptional case. It will be soon enough to overrule this precedent, if and when superior authority so rules.
Obedient thereto, the judgment appealed from is accordingly affirmed. — Affirmed.
CLAUSSEN, C.J., and STEVENS, ALBERT, ANDERSON, KINTZINGER, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430086/ | The board of supervisors of Appanoose County, in making the levy of taxes for 1926, included, with others, and made levy of, an emergency fund of 8.34 mills, and appellants paid this under protest. Two actions are involved herein: one by the Chicago, Rock Island Pacific Railway Company, and the other by the Chicago, Burlington Quincy Railway Company. They were consolidated in the lower court, for the purpose of trial, and also in this court. They were commenced to compel repayment of the taxes paid under protest, and involved both the question of statutory construction and the constitutionality of the act. The statutes involved are a part of Chapter 24 of the Code of 1924, and are designated in Section 368 as the "Local Budget Law." This law, as originally passed, was Chapter 4 of the Acts of the Extra Session of the Fortieth General Assembly, which provides for the office of budget director, his appointment, qualifications, term of office, removal, suspension, filling vacancy, salary, and employees, and designates his powers and duties to carry out and enforce all provisions of this act, to conduct hearings, adopt rules governing appeals, hearings, etc., and to compel production of evidence upon examinations or hearings. This is the substance of the matters covered in Chapter 1 of the act. Chapter 2 provides that all state departments shall make a detailed statement of the receipts of the department; second, an estimate of the needs of the department for the ensuing biennial period; and third, any other information that the director may require. Chapter 3 authorizes the director to make examination and settlement between the state and all state officers and the departments. Chapter 3-A provides for an appeal board in certain cases. Chapter 4 governs public contracts and bonds. Chapter 5 provides for a local budget, and is designated as the "Local Budget Law." By Section 60, of this chapter, municipalities include all counties, cities, towns, townships, school districts, road districts, drainage districts, and all other public bodies or corporations that have power to levy a tax or certify a tax or sum of money to be collected by taxation; and they are placed under the control of the budget director.
Section 61 prohibits all of these various bodies from certifying or levying any tax until the following estimates have been made and filed: *Page 853
"1. The amount of income thereof for the several funds from sources other than taxation.
"2. The amount proposed to be raised by taxation.
"3. The amount proposed to be expended in each and every fund and for each and every general purpose during the fiscal year next ensuing.
"4. A comparison of such amounts so proposed to be expended with the amounts expended for like purposes for the two preceding years."
Section 64 provides as follows:
"Each municipality may include in the estimate herein required an estimate for emergency or other expenditure which amount cannot reasonably be foreseen at the time the estimates are made, and such emergency fund shall be used for no other purpose."
The budget director is given power to approve the transfer of money from one fund of a municipality to another, but it is further provided that it shall not be necessary to return the emergency fund when it is once transferred. The title to this act is as follows:
"An act creating the office of director of the budget, defining his powers, prescribing his duties, and providing for a state budget and examination of the accounts of the departments of the state and review of public contracts and bond issues in certain cases, and for local budgets, and prescribing the methods for the appointment of the director of the budget and members of an appeal board in certain cases, defining their powers and duties and making an appropriation therefor, also amending, revising and codifying Section 94 of the Compiled Code of Iowa, relating to certain duties of the governor," and certain other sections of the Code, with which we are not interested at the present time.
It is further provided that, when these estimates have been made, as provided in this law, and approved by the budget director, they shall be certified to the levying board, and by such board levied as a tax on all assessable property.
Several questions are raised as to the construction and *Page 854
validity of this act; but, as we view it, the disposition of one of these questions will be decisive of this lawsuit.
It is urged that certain provisions of this act are unconstitutional, and with this contention we agree.
It will be noticed from the foregoing general summary of the law that, among other things, it is provided that an emergency fund is to be created. This is a new, distinct, and definite fund, heretofore unknown under the statutes of this state. It is also provided that the proper bodies may make and file an estimate of the amount of money wanted from this fund, and when this estimate is approved by the budget director, it is certified (in the instant case to the county auditor), and is levied by the board of supervisors upon all of the assessable property within the county. The same method is marked out for all municipalities other than the county. Aside from this provision of the act, there is no provision in the statutes authorizing the levy of the tax for an "emergency fund." The defendants, appellees herein, insist that this statute does authorize and warrant the levying of such a tax for the purpose of creating an emergency fund. We take the defendants at their word, and go forward in the discussion of this question on the theory that this statute does warrant the levying of a tax for an emergency fund.
Strange as it may seem, this is the first time the legislature of Iowa has ever seen fit to authorize any legal body to levy a tax without limiting the same. Under this provision of the statute, the right of the estimating body to fix this levy is unlimited and unbounded. We do not now stop to consider the question of what emergency is intended to be covered and paid from this fund, other than to suggest that the use of the word in this setting in the act is anticipatory of something to happen in the future. It was not intended to levy this fund to be used to liquidate existing indebtedness. The statute itself is inconsistent, in that it provides that, when such fund has been created, it shall be used for no other purpose, and later in the act, it provides that it may be transferred to other funds, and not returned.
The real question, however, is whether or not, by reason of this provision as to the creation of an emergency fund and the other provision authorizing the municipality to cause a tax to be levied on the assessable property within the municipality for this emergency fund, this statute is a violation of the provisions *Page 855
of Article III, Section 29, of the Constitution of the state of Iowa, reading as follows:
"Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."
We answer this question in the affirmative. There is nothing whatever said in the title to this act about the creation of a new fund, known as the "emergency fund," nor is there anything said in such title that would indicate that authority was being conferred by the legislature upon a municipality to warrant the levy of such a tax.
In discussing this constitutional question, Judge Cooley stated the reasons for such provisions as follows:
"It may therefore be assumed as settled that the purpose of these provisions was: First, to prevent hodge-podge or `log-rolling' legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire." 1 Cooley's Constitutional Limitations (8th Ed.) 295, 296.
One of the mischiefs to be prevented is the enactment of laws under false and delusive titles, whereby measures might procure support of legislators who are deceived as to the character of the law, and also to prevent the conjunction in one act of two or more subjects having no legal connection, for the purpose of the passage of a law which alone might not command legislative sanction, without the strength of a popular measure in the same act. It is to prevent such tricks in legislation that the Constitution forbids the passage of any law unless the subject be expressed in the title, and in a like manner, inhibits the embodying in the same act of two or more subjects having no legal connection; and when it is clear that this provision of the *Page 856
Constitution has been disregarded, we must not hesitate to proclaim the supremacy of the Constitution.
We have held, in accord with many other states, that one of the tests of this question is whether or not the matter about which complaint is made, is incongruous with the general subject-matter specified in the title. See State v. Gibson, 189 Iowa 1212; ClearLake Co-op. L.S.S. Assn. v. Weir, 200 Iowa 1293; Cook v. MarshallCounty, 119 Iowa 384, and other cases cited therein. But that is not the only test. As suggested in the above quotation from Judge Cooley, the question is, Is there anything in the title of the bill that would suggest or even give intimation that it provided for a new fund, and also conferred power upon the municipalities to levy a tax to create such fund? We think not. Anyone reading the title to this act would never suspect that, buried therein, were provisions for the creation of a new fund and the conferring of power upon the municipalities to levy a tax therefor.
In the case of Des Moines Nat. Bank v. Fairweather, 191 Iowa 1240, in a discussion of the question of the validity of the title to an act, we said:
"Under the Constitution (Section 29, Article 3), if the subject-matter of an act be not expressed in the title, the act is void as to such subject. When it is considered that a legislative body has thrust upon its consideration during a brief session hundreds of proposed bills, and that the labor cast upon a member, in order to enable an intelligent understanding of proposed acts, is a stupendous one, and is necessarily performed with some degree of imperfection, we can readily see how important this constitutional requirement is to intelligent legislation. If the title of a bill fairly discloses the general nature and objective of a proposed act, the attention of the legislator is thereby challenged. Public attention is also challenged thereby. If the title withholds such disclosure, or by indirection conceals it, such a course can operate only in aid of stealthy legislation. As to the title of this act, it contained nothing which fairly tended to challenge the attention of a legislator or the public to its nature or scope, or to the stupendous consequences of its operation. It is almost incredible that the consequences appearing in this case could have been contemplated by the legislature. When it is considered that there are in existence United States securities to *Page 857
the amount of more than two thousand millions of dollars, and that these may be bought in the market any day by any bank and may be sold again upon the same market, either early or late, the possibilities are astounding."
As applied to the facts in the case before us, the amount assessed was 8.34 mills, which far exceeds any levy heretofore allowed by the legislature to any municipal body in taxing property; and it may be that, in many instances where counties have attempted to avail themselves of this statute, the levy of tax made by them was much in excess of that made by the county in the case at bar.
Appellees rely largely on the case of Fevold v. Board ofSupervisors, 202 Iowa 1019, where the act under consideration in the first place was an amendatory act to existing legislation, and also provided additional methods for the eradication of bovine tuberculosis, and to promote the health and welfare of the citizens of the state. That case was ruled on the doctrine ofCook v. Marshall County, 119 Iowa 384, where it was held that:
"`It is admissible to include in a statute means which are reasonably adapted to secure the objects indicated by the title.'" Further, it is said: "Everything connected with the main purpose and reasonably adapted to secure the objects indicated by the title may be embraced in the act, without violating the constitutional inhibition."
This shows that the Fevold case has no application to the situation before us. It was not reasonable or necessary, to secure the object indicated in the title to the present act, that a new fund should be created, or that power should be conferred upon a municipality to levy a tax to create such fund. More than this, the title to the act in the Fevold case would put one upon inquiry, not only as to the method and means of the eradication, but as to the fact that expense would be necessary to accomplish the purpose of the act, and that a fund would be needed therefor.
In the case of State v. Manhattan Oil Co., 199 Iowa 1213, the title to the act read:
"An act providing for the supervision and regulation of persons either natural or artificial engaged in the transportation *Page 858
of persons or property for hire over the public highways of the state by motor vehicles, and conferring certain jurisdiction over such persons and such vehicles upon the board of railroad commissioners of the state; also providing for the enforcement of this act and for the punishment of violation thereof."
We there held that, because the act provided for a levy of a tax for the maintenance and upkeep of the public highway, which was not expressed in the title, such title was fatally defective.
In the case of Wrought Iron Bridge Co. v. Town of Attica,119 N.Y. 204 (23 N.E. 542), quoting from the previous decision in Inre Application of the Mayor, 99 N.Y. 569 (2 N.E. 642), it is said:
"`Where one reading a proposed bill, with the title in his mind, comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislators are misled and thrown off their guard, it is our duty to declare the condemnation of the fundamental law.'"
In Maule Coal Co. v. Partenheimer, 155 Ind. 100 (55 N.E. 751), in discussing this question, under a constitutional provision identical with that of our state, the court said:
"To express the subject of a statute in the title, in compliance with the requirement of the Constitution, no particular form or terms are exacted, nor is it essential that such subject be expressed with precision. The title will sufficiently conform to the command of the Constitution if it be so framed and worded as fairly to apprise the legislators and the public in general of the subject-matter of the legislation, so as reasonably to lead to an inquiry into the body of the bill. The constitutional requirement may be interpreted to mean that the act and its title must correspond, not literally, but substantially; and such correspondence is to be determined in view of the subject-matter to which the legislation relates."
In 1 Lewis' Sutherland Statutory Construction (2d Ed.) 201, the rule is thus stated:
"It is required not only that an act shall contain but one subject, but that that subject be expressed in the title. The title, thus made a part of each act, must agree with it by *Page 859
expressing its subject; the title will fix bounds to the purview, for it cannot exceed the title-subject, nor be contrary to it. An act will not be so construed as to extend its operation beyond the purpose expressed in the title. It is not enough that the act embraces but a single subject or object, and that all its parts are germane; the title must express that subject, and comprehensively enough to include all the provisions in the body of the act. The unity and compass of the subject must, therefore, always be considered with reference to both title and purview. The unity must be sought, too, in the ultimate end which the act proposes to accomplish, rather than in the details leading to that end."
It is apparent from these authorities that incongruity is not the only test for the determination of this question. As suggested by the New York court, if one had in mind the title to the act under consideration in the case at bar, he certainly would be surprised when he read in the body of the act that there was a provision for the creation of a new fund and the conferring of power upon municipalities to levy a tax to create such fund. Nothing of that kind is indicated in the title to this act; hence we conclude that, in so far as the act provides for an emergency fund, and confers power to levy the same, these provisions, not being specified in the title, are in violation of the constitutional inhibition, and therefore void. This, of course, is limited to the part of the act which makes these provisions, and does not in any way affect the remainder of the act. —Reversed.
De GRAFF, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033580/ | IN THE COURT OF APPEALS OF IOWA
No. 15-1883
Filed September 14, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CODY MICHAEL BERTRAM,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Butler County, Peter B. Newell,
District Associate Judge.
Cody Bertram appeals following his plea of guilty to second-degree theft.
AFFIRMED.
Harry L. Haywood III of Haywood Law Office, Eldora, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
2
DANILSON, Chief Judge.
Cody Bertram appeals following his guilty plea to theft in the second
degree, in violation of Iowa Code section 714.2(2) (2015). He contends the
district court abused its discretion in failing to allow him to withdraw his plea upon
claims of improper or late disclosure of “key evidence” by the State. He argues
he found out the identity of the informant who provided information supporting the
warrant shortly before entering his plea. Finding no abuse of discretion, we
affirm.
On March 16, 2015, a Waterloo resident reported the theft of a trailer and
two snowmobiles from his home. On April 26, deputies executed a search
warrant at the home of Charles Schrage and found one of the stolen
snowmobiles. Schrage reported that Bertram had shown him a bill of sale for the
blue snowmobile. Zachary Kastner, who was also present at the search,
reported that Bertram had shown him a photo of a red snowmobile and that
Bertram had traded the snowmobile to Rodney Robinson for a car. Police
recovered the red snowmobile and trailer from Robinson, who confirmed Bertram
had traded them for Robinson’s Pontiac Bonneville in mid-March.
On June 17, 2015, Bertram was charged with second-degree theft.
Bertram entered a written guilty plea on August 26, 2015.
On October 6, 2015, Bertram filed a motion in arrest of judgment,
challenging the guilty plea on the grounds that it was entered without informed
consent and in violation of his constitutional rights. He also requested a
suppression hearing to challenge the search warrant, claiming it lacked probable
cause. The district court denied the motion and entered judgment and sentence.
3
On appeal, Bertram contends that had he and his attorney known the
identity of the informant providing the basis of the original warrant “sufficiently in
advance of the plea hearing to discuss the matter, they would have filed a motion
to suppress all of the evidence” because the informant was “an unreliable
person.” He contends that when he had “time to discuss the matter,” he learned
it was unlikely the informant would testify, and he then sought to change his plea.
“We review a district court’s grant or denial of a motion in arrest of
judgment and a motion to withdraw a plea for abuse of discretion.” State v.
Smith, 753 N.W.2d 562, 564 (Iowa 2008). Where a defendant enters a plea with
full knowledge of the charge against him and of his rights and the consequences
of a plea of guilty “understandably and without fear or persuasion,” the court does
not abuse its discretion in refusing to allow withdrawal of that plea. State v.
Speed, 573 N.W.2d 594, 596 (Iowa 1998) (quoting State v. Ramirez, 400 N.W.2d
586, 588 (Iowa 1987)).
Bertram failed to prove any deficiency in his plea requiring arrest of
judgment. The trial court complied with the procedures required. See Iowa R.
Crim. P. 2.8(2)(b). Bertram does not challenge the district court’s guilty plea
colloquy. At the August 26, 2015 plea hearing, the court ensured Bertram
understood the potential penalties, the nature of the charge, and the trial rights
being waived. The court also established a factual basis for the plea. In his
written plea, Bertram admitted that he exercised control over property he knew
was stolen and that the property’s value exceeded $1000.
Bertram’s asserted suppression challenge did not require an arrest of
judgment. The search warrant pertained to the farm of Charles Schrage. There
4
is nothing in this record that would indicate Bertram had a reasonable
expectation of privacy in another person’s shed to challenge the search. See
State v. Lowe, 812 N.W.2d 554, 567 (Iowa 2012) (“In order to object to the
evidence on constitutional grounds, [a defendant] must show that his own
constitutional rights, under either the state or federal constitutions, have been
violated.”). More importantly, Bertram waived any error by pleading guilty. State
v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009) (“It is well established that a
defendant’s guilty plea waives all defenses and objections which are not intrinsic
to the plea.”). Bertram does not claim plea counsel was ineffective.1 We affirm
the conviction.
AFFIRMED.
1
See Castro v. State, 795 N.W.2d 789, 793 (Iowa 2011) (“[T]he distinction between
ineffective-assistance-of-counsel claims that do not survive a guilty plea as illustrated in
Speed and those that do survive is the existence of a showing that the pre-plea
ineffective assistance of counsel rendered the plea involuntary or unintelligent. The
component of the claim involving the voluntariness of the plea is largely tied to the
prejudice element of all ineffective-assistance-of-counsel claims. Id. This element
means criminal defendants who seek postconviction relief after pleading guilty must
establish the guilty plea would not have been entered but for the breach of duty by
counsel.”). | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4260994/ | STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 3, 2018
Plaintiff-Appellee,
v No. 335933
Macomb Circuit Court
TEAUNTE LAWRENCE HARPER, LC No. 2016-000421-FC
Defendant-Appellant.
Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with intent to do great
bodily harm less than murder (AWIGBH), MCL 750.84, possession of a firearm during the
commission of a felony (felony-firearm), second offense, MCL 750.227b, and felon in
possession of a firearm, MCL 750.224f. Defendant was sentenced, as a fourth habitual offender,
MCL 769.12, to 95 months to 30 years’ imprisonment for the AWIGBH conviction, five years’
imprisonment for the felony-firearm conviction, and 95 months to 30 years’ imprisonment for
the felon-in-possession-of-a-firearm conviction. We affirm defendant’s convictions but remand
for resentencing.
This case arises out of a drive-by shooting involving defendant and the victim, who is the
mother of two of defendant’s children. Defendant got into an argument with the victim and her
then-boyfriend at the victim’s house. After the argument concluded and defendant was leaving,
he stated, “I hope you guys aren’t here when I come back.” Approximately 20 minutes later,
defendant returned in his vehicle, which slowed down almost to a stop in front of the victim’s
house, and several rounds from a shotgun were fired from the vehicle. Pellets from the shotgun
struck the victim’s leg and buttocks as she attempted to run away. Later that evening, defendant
called the victim and told her, “Why did you run, Bitch?”
I. SUFFICIENCY OF THE EVIDENCE
Defendant argues that this Court should overturn his convictions because there is
insufficient evidence to show that he was the one who committed the offenses. We review a
challenge to the sufficiency of the evidence in a jury trial de novo. People v Gaines, 306 Mich
App 289, 296; 856 NW2d 222 (2014). In doing so, we “view[] the evidence in the light most
favorable to the prosecution[] to determine whether the trier of fact could have found that the
-1-
essential elements of the crime were proved beyond a reasonable doubt.” Id. Moreover, any
conflicts in the evidence are to be resolved in favor of the prosecution. People v Fletcher, 260
Mich App 531, 562; 679 NW2d 127 (2004).
AWIGBH requires “(1) an attempt or threat with force or violence to do corporal harm to
another (an assault), and (2) an intent to do great bodily harm less than murder.” People v
Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016) (quotation marks and citation omitted).
However, defendant does not contest the sufficiency of the evidence with respect to these
elements. Instead, defendant argues that there was insufficient evidence to show that defendant
was the one who committed these acts. “[I]t is well settled that identity is an element of every
offense.” People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008).
At trial, the victim testified that she was not sure if defendant had been the person who
fired. However, the victim also admitted in her testimony that she had identified defendant as
the shooter to police immediately after the shooting took place. Her prior statement was
admissible because it was not hearsay under MRE 801(d)(1)(C), which exempts statements “of
identification of a person made after perceiving the person.” As already noted, when reviewing
if there is sufficient evidence to sustain a conviction, any conflicts are to be resolved in favor of
the prosecution. Fletcher, 260 Mich App at 562. Accordingly, the victim’s prior identification
is sufficient to allow a jury to conclude beyond a reasonable doubt that defendant was the
shooter.1
With our holding that there is sufficient evidence to allow a jury to conclude that
defendant was the principal shooter, it is a foregone conclusion that there also was sufficient
evidence to support his firearm convictions. Felony-firearm requires “that the defendant
possessed a firearm during the commission of, or the attempt to commit, a felony.” People v
Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). Since AWIGBH is a felony, and a
firearm was used in the commission of the present crime, a jury certainly could have determined
that defendant was guilty of felony-firearm. Likewise, because the parties stipulated to the fact
that defendant had been previously convicted of a specified felony and was ineligible to possess
a firearm, the jury could have found defendant guilty of being a felon in possession of a firearm
under MCL 750.224f.
II. OFFENSE VARIABLE (OV) 3
Defendant argues that the trial court’s assessment of 10 points under OV 3 was
erroneous. We agree. “Under the sentencing guidelines, the circuit court’s factual
determinations are reviewed for clear error and must be supported by a preponderance of the
1
Additionally, we note that the jury simply could have chosen not to believe the victim when she
testified at trial that she did not know if defendant was the shooter. The victim noted that she
was not happy to testify against defendant because, being the father of two of her kids, she did
not want him to go to jail. The jury could have chosen instead to rely on the previous
identification to police, which, as noted, was admissible evidence.
-2-
evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). A court clearly errs
when a reviewing court is left with a definite and firm conviction that a mistake was made.
People v Allen, 295 Mich App 277, 281; 813 NW2d 806 (2011). “Whether the facts, as found,
are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the
facts to the law, is a question of statutory interpretation, which an appellate court reviews de
novo.” Hardy, 494 Mich at 438.
OV 3 concerns physical injury to the victim. MCL 777.33; People v Maben, 313 Mich
App 545, 550; 884 NW2d 314 (2015). OV 3 provides that “bodily injury requiring medical
treatment” is assessed at 10 points, and “bodily injury not requiring medical treatment” is
assessed at five points. MCL 777.33(1); People v Armstrong, 305 Mich App 230, 245; 851
NW2d 856 (2014). “Bodily injury” includes “anything that the victim would, under the
circumstances, perceive as some unwanted physically damaging consequence.” People v
McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011).
“The trial court may consider all the record evidence when sentencing, including the
contents of a presentence investigation report.” Armstrong, 305 Mich App at 245. Here, the trial
court, by scoring OV 3 at 10 points, necessarily found that the victim suffered injuries that
required medical treatment. We have a definite and firm conviction that the trial court erred.
Nothing in the record established that the injuries the victim sustained required medical
treatment. Of course, the fact that the victim declined treatment is not controlling, as OV 3
“ ‘refers to the necessity for treatment and not the victim’s success in obtaining treatment.’ ”
Maben, 313 Mich App at 551 (emphasis added), quoting MCL 777.33(3). At trial, the victim
testified that she was “grazed” by the pellets. Further, the PSIR shows that the victim told police
immediately afterward that she was “grazed” by the pellets as well. Indeed, the PSIR notes that
the police witnessed that the victim “was alert, up and walking around[,] and refused medical
attention from Warren Fire on the scene.” Additionally, we have reviewed a photograph that
was admitted at trial that shows the victim immediately after the shooting. The picture
corroborates the victim’s description of being grazed, as it merely shows a tiny drop of blood on
her arm, measuring one-half centimeter (or less than one-quarter inch) in diameter. It is hard to
fathom that such a minor injury would necessitate medical attention.
In sum, while reviewing all of the available evidence, it is clear that the victim suffered a
physical injury, but there was insufficient evidence to show by a preponderance of the evidence
that the nature of the injury required medical treatment. Accordingly, OV 3 should have been
scored at five points instead of 10.
Reducing defendant’s overall OV score by five points results in a corrected total OV
score of 45 points. This change results in the proper sentencing guideline cell to be F-IV. See
MCL 777.65. Consequently, the minimum guidelines range went from 38 to 152 months down
to 34 to 134 months. While defendant’s imposed minimum sentence of 95 months still falls
within the corrected guidelines range, resentencing is nonetheless required. See People v
Francisco, 474 Mich 82, 89-92; 711 NW2d 44 (2006).
-3-
III. JAIL CREDIT
Defendant argues that he should be granted an additional 73 days of jail credit for time
that he served in jail between November 3, 2015, and January 15, 2016. We disagree. This
Court reviews the issue of whether defendant is entitled to sentence credit for time served prior
to sentencing as a question of law that is reviewed de novo. People v Armisted, 295 Mich App
32, 49; 811 NW2d 47 (2011).
Defendant’s PSIR indicates that he was arrested in relation to the present case on
December 12, 2014. Defendant admits that while he was in jail in Macomb County, he was
charged in the Wayne Circuit Court for several offenses that were completely unrelated to this
case. Defendant further states that he was transferred from the Macomb County Jail (“MCJ”) to
the Wayne County Jail (“WCJ”) on November 3, 2015, and that he was not transferred back to
the MCJ until January 15, 2016, the time of his arraignment in Macomb County. Defendant now
seeks credit for the 73 days served in the WCJ and requests that this Court apply such credit to
his current sentences.
The issue of whether defendant is eligible for credit for time served prior to sentencing is
governed by MCL 769.11b, which states:
Whenever any person is hereafter convicted of any crime within this state and has
served any time in jail prior to sentencing because of being denied or unable to
furnish bond for the offense of which he is convicted, the trial court in imposing
sentence shall specifically grant credit against the sentence for such time served in
jail prior to sentencing. [Emphasis added.]
Defendant claims that the critical factor is that he was in jail prior to sentencing for the
entire time period between arrest and sentencing. Defendant further contends that the fact that he
was in jail for a portion of that time in a different county, and for different crimes, is irrelevant to
the overall calculation of credit for time served prior to sentencing. Defendant is incorrect in this
regard, and his argument overlooks the meaning of an important element of MCL 769.11b,
which specifically states that a defendant is entitled to jail credit for time served “for the offense
of which he is convicted.” For a time, defendant was in the WCJ in relation to other charges and,
thus, he was not in the MCJ in relation to the present case at that time. Because MCL 769.11b
only permits the assignment of jail credit for time served in relation to the specific offense for
which defendant was convicted, defendant may not receive jail credit for the 73 days that he
spent in the WCJ. Accordingly, defendant’s claim fails.
IV. LATE FEE
Defendant also argues that his due process and equal protection rights were violated by
the imposition of a 20% late fee penalty for late payment of court fees and costs. Defendant
asserts that the imposition of this 20% late fee is unconstitutional because he is indigent.
However, defendant cannot show how he is entitled to any relief because there is nothing in the
lower court record to indicate that defendant was actually assessed any late fee. Accordingly,
there is no evidence that there is any action for us to correct, and we decline to address the issue.
See People v Jackson, 483 Mich 271, 298; 769 NW2d 630 (2009) (declining to address
-4-
constitutionality of 20% late fee when there was no indication defendant was ever assessed the
fee); People v Hopson, 480 Mich 1061, 1061 (2008) (stating that to have standing, an appellant
must have suffered an “injury in fact”).
We affirm defendant’s convictions but remand for resentencing. On remand, the trial
court is to consider the proper minimum, sentencing guidelines range. We do not retain
jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Mark T. Boonstra
/s/ Jonathan Tukel
-5- | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3430230/ | This case originated as an action in equity brought by plaintiffs seeking the appointment of a trustee of real estate. The issues became such that the only question necessary to be considered on this appeal is whether, by reason of the terms of the will of John Schwebach, there resulted an equitable conversion of certain of decedent's real estate into personalty. The will, aside from attestation by witnesses, is in the following words:
"Granville, Iowa, July 18, 1911
"I, John Schwebach, of Sioux County, Iowa, being of full age and sound mind and memory make this my last will and testament. After the payment of my just debts, I give, devise and bequeath my estate and property as follows:
"I bequeath to my wife, Katie Schwebach, all the personal property I die possessed of. Also she shall receive Three Hundred Dollars per year during her lifetime out of the rents of the real property I die possessed of, and free use of house and lots I own in Granville, Iowa, during her life time. The remainder of the rents derived from the rents from the real property I die possessed of, after paying my said wife $300.00 annually and the payment of the taxes on said real estate and the keeping in repair and paying the insurance on all the improvements on said real estate, shall annually be divided equally among my children. The real estate I die possessed of shall not be sold until after the death of my said wife. After her death it may be sold and the proceeds divided equally among my children.
"It is my will that my son Nicholas T. Schwebach shall, so long as he farms the place in a good manner and pays the rent annually promptly remain as tenant of the lands I die possessed *Page 1370
of and pay a rental per acre of fifty cents less than the average rent paid for like farms in Granville, Iowa, vicinity.
"I appoint my sons J.P. Schwebach and N.T. Schwebach as executors of this will and they shall not be required to give bonds to exceed $1000.00.
"In witness whereof I have signed, published and declared this instrument as my last will, at Granville, Iowa, on this 18th day of July, 1911.
"John Schwebach."
Appellants contend the court erred in holding there was such equitable conversion. Appellees say the will manifests a clear intention that what testator's children were to receive was cash, representing equal proportionate shares in the sale price of the real estate, and that accordingly the law implies an immediate conversion in equity of all of his estate into personal property for the purpose of administration.
[1] "Equitable conversion is defined as a constructive alteration in the nature of property by which in equity real estate is regarded as personalty or personal estate as realty. * * * It has been adopted for the purpose of executing trusts, and it is essential to the application of the doctrine that the property should be subject to a trust or imperative direction for conversion. Condit v. Bigalow, 64 N.J. Eq. 504, 54 A. 160." Beaver v. Ross, 140 Iowa 154, 118 N.W. 287, 289, 20 L.R.A. (N.S.) 65, 17 Ann. Cas. 640.
In Hanson v. Hanson, 149 Iowa 82, 127 N.W. 1032, the frequently quoted rule is laid down, that, to work a conversion there must be (a) a positive direction to sell, or (b) an absolute necessity to sell in order to execute the will, or (c) such a blending of realty and personalty by the testator as to clearly show he intended to create a fund out of both real and personal estate, and to bequeath the same as money.
"Again, it has been said in effect that: `Equitable conversion arises from an express, clear, and imperative direction, or from a necessary implication of such express direction.' The question of conversion is one of intention, and the question is, is it the testator's intent to have his real estate converted into personalty immediately upon his death?" (Citing cases.) Hanson v. Hanson, supra. See, also, In re Sanford's Estate, 188 Iowa 833, 175 N.W. 506, 508. *Page 1371
In the Sanford case, supra, in considering the alleged necessity of applying in that case the doctrine we are considering, the court reaffirmed the rule laid down in earlier cases, saying, "Unless, however, an absolute imperative necessity to sell the real estate, or some part thereof, in order to carry out the terms and provisions of the will is shown, an equitable conversion did not result." It should also be in mind that the presumption is against the application of the theory of equitable conversion. In re Estate of Dodge, 207 Iowa 374, 223 N.W. 106; Hanson v. Hanson, supra.
Applying to the will before us, the rule in the Hanson case, supra, we eliminate from consideration any (a) positive direction to sell, as we find in the will no such positive direction, and eliminate consideration of any (c) such blending of realty and personalty as to clearly show testator intended to create a fund out of both real and personal estate and to bequeath the same as money, same being eliminated because the personal estate passed to the widow alone by absolute bequest. There is left to consider only the question whether there is necessarily implied in the will (b) an absolute necessity to sell the real estate in question in order to execute the will.
Appellees would draw such implication from the following part of the instrument:
"The real estate I die possessed of shall not be sold until after the death of my said wife. After her death it may be sold and the proceeds divided equally among my children."
Appellees say that the quoted words constitute a positive and necessary direction that the real estate be sold, after the widow's death, and that a fund thereby be created to be divided among the heirs. Appellees' deduction therefrom is that testator created an absolute necessity to sell the real estate in order to execute the will, thereby working an equitable conversion.
We cannot follow appellees to their conclusion. We are not able to find that testator intended to create an absolute necessity of sale of the real estate, in order to execute the will. It is our task, following the accepted rules of construction, to try to ascertain what testator really intended by the words he used. In so doing, the two sentences quoted, on which appellees lay stress, should not be disassociated, but should be considered together. This is because these two sentences appear to be inclusive of all testator's expressions *Page 1372
upon one of the objects he desired to attain. This particular object was the making it a certainty that the land should not be sold during the lifetime of his wife. After expressing in the first sentence his intention to attain this objective, he then added the words, "After her death it may be sold and the proceeds divided equally among my children." It would appear to us that the second sentence was added with the thought and intention in decedent's mind, either to make more certain, by another expression, that it was "after her death" that the land might be sold, or to make a mere permissive statement to clarify the preceding sentence, and to indicate definitely that testator intended no prohibition of sale after the death of the wife.
[2] Testator's language was purely permissive. He said "may" not "must". We find nothing in the context that would warrant attaching to the word "may", as used, an imperative meaning. Appellees argue that the word "may" should be construed as having the meaning of the word "must", because, as appellees say, there would otherwise be no devise of the remainder interest in the land to the children. While they do not so state, we presume appellees have in mind the rule of construction that favors, under certain circumstances, that interpretation of a will that will not result in a partial intestacy. This argument is hardly pertinent to the issue, because the only matter we determine on this appeal is negative in character, namely, that the will did not imply an absolute necessity to sell the land in order to execute the will. There is no issue as to what estate in remainder fell to the heirs under the terms of the will. In connection with appellees' proposition, it is proper to bear in mind the circumstances under which the will was drafted. It is evident that the children as remaindermen in the will are the identical persons who would inherit the remainder. This fact, of course, was known to testator, and weakens in this case the force of the rule of construction that would avoid partial intestacy, even in case the rule has any application on account of a resulting partial intestacy, a question not before us. There is nothing in the will inconsistent with the idea that testator provided for the objects he desired to attain, content that the remainder should go to his children under the laws of descent. For the reasons above, we do not find in this case such cogency in the rule of interpretation relied on by appellees as to warrant its subverting the evident lack of intention on the part of testator to work an equitable conversion. *Page 1373
Another argument of appellees may be stated as follows: The will provides for the receiving of $300 of the annual rentals by the widow and the sharing by the children of the remainder of the rentals after payment of taxes, repairs, and insurance, during the widow's life; appellees say from this there arises the implication that testator intended there should be some trustee to take possession of the real estate and administer this life estate; from this assumption appellees conclude that the testator created a trust, and by this reasoning, appellees, having established (in thought) a trust, urge that an equitable conversion to enable the trust to function must have been testator's intention. We cannot find in the terms of the will that this life estate was essentially different from any other estate for life, and of course such an estate carries with it the right in the beneficiaries to have the possession and use of the estate in their own right. The imposition of a trusteeship was not in our opinion in any way implied.
This case is reversed. — Reversed.
ANDERSON, C.J., and ALBERT, PARSONS, DONEGAN, and HAMILTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430236/ | On April 19, 1921, Ina E. Durham, a spinster, executed her last will and testament. In the fourth paragraph thereof she gave "to the original chapter of the Salvation Army located in Council Bluffs, Iowa, one fourth of all my property that 1. WILLS: I own at the time of my death." This will was construc- duly admitted to probate, and, on the 21st day tion: of April, 1922, the executor filed an notice: application for construction of said will, essential asking for an order declaring inoperative and of require- no effect the fourth paragraph of said will ments. above set out. This application was presented to one of the judges of the district court, and an order made setting the same down for trial on the 18th of May following, upon a five days' notice, and by publication in the Avoca Journal Herald, pursuant to which publication was made of the notice, directed to "the heirs and legatees of Anna Durham, deceased," and to the "original chapter of the Salvation Army located at Council Bluffs, Iowa."
This notice does not comply with the requirements of Section 11820 of the Code of 1924. A notice of this kind must provide for two things: First, it must specify the time at which the hearing is to be had, and second, the place where the hearing is to be had. One is of as much importance as the other, and a failure to specify the place is equally as fatal as a failure to specify the time of the hearing. Both are necessary to jurisdiction. The record before us does not show that this order for *Page 499
publication of notice was ever entered of record in the district court records of Pottawattamie County at Avoca.
On the 18th of May, 1922, an order was made under this application, holding the said fourth provision of said will to be null and void and of no effect, for the reason that the same was uncertain and indefinite, and there was no organization or party in existence such as designated in said will. On the 27th day of May, the final report of the executor was presented in court, showing something over $6,000 on hand for distribution, which was to be divided among the nieces and nephews of testatrix, 13 in number. On that date, an order was signed, setting down the hearing on the final report at 9 o'clock A.M. on the 3d day of June, 1922, upon mailed notice to the heirs of the legatee at their known post-office addresses, and by posting copy of said notice on the front door of the courthouse at Avoca at least five days prior to said hearing. On the 13th of June following, an order was made approving the final report, and ordering distribution. In the notice given for hearing on the final report, appellants herein were not named, and neither was notice directed to the original chapter of the Salvation Army located at Council Bluffs, Iowa. There had been no order made for the discharge of the executor in this estate at the time this proceeding was commenced.
One of the principal questions urged by appellants is that they are not bound by the order approving the final report and for distribution. Section 12051, Code of 1924, provides:
"Accounts settled in the absence of any person adversely interested, and without notice to him, may be opened within three months on his application."
As stated above, the order approving the final report and for distribution was entered on the 13th day of June. This application was filed on the 19th of July following. It was, therefore, within the three months' limitation 2. EXECUTORS of the statute, and we know of no reason why AND this statute does not govern in this respect, ADMINISTRA- as appellant herein was not named in the notice TORS: for hearing on said settlement, neither was said accounting: notice directed to the original chapter of the final Salvation Army located at Council Bluffs, Iowa. report: Neither of such parties was present in court at absence of the time the action was taken by the court on adverse the application for party. *Page 500
approval of the final report and order for distribution, and, of course, appellants are adversely interested. This situation comes within the provisions of the statute; hence, so far as this question is concerned, the ruling of the court was erroneous. As heretofore noted, in the original proceedings herein to have the will construed, an order was made for notice; 3. WILLS: but, so far as the record goes, there is no construc- showing that such order was ever entered of tion: record. That such entry must be made, in order orders: to have any force or validity, see Section record entry 11582, Code of 1924; In re Estate of Manning,
necessary. 134 Iowa 165.
In the proceedings now pending, an answer was filed on behalf of the estate by executor, issue was joined, and also an answer was filed by appellant to the original petition to construe the will; and by agreement of all parties, all questions involved were tried at one time, including the question of the correctness of the ruling of the court in entering the order it did in the proceeding to construe the will, their 4. CHARITIES: application having asked, among other things, devises: un- that the order for construction filed on the certainty: 18th day of May, 1922, be vacated and set how cured. aside, and that a new trial be granted. In the answer and resistance to the petition for construction of the will, appellants allege that the Salvation Army is a corporation organized by special act of the legislature of the state of New York, and for many years last past has been engaged in religious and charitable work throughout the United States and the world; that, for convenience in carrying on its work, it establishes branches of the parent organization in cities and towns throughout the United States, known as corps of the Salvation Army; that, at the time of the execution of the will by testatrix herein, there was a local organization of the Salvation Army located at Council Bluffs, known as the "Council Bluffs Corps of the Salvation Army;" and that, from that time forward, said corps has been actively engaged in charitable and religious work of the Salvation Army at Council Bluffs; that by the use of the word "original" in the fourth paragraph of the will in controversy it was the purpose and intention of the testatrix to designate the organization of the Salvation Army, as distinguished from the organization known as the "Volunteers of America;" that by the use of the word "chapter" it was the *Page 501
purpose and intent of said testatrix to designate the Council Bluffs corps or subdivision of the Salvation Army.
The allegations of the answer of appellant are sustained, as to the organization of the Salvation Army and the method and manner in which it conducts its business and work. That it is a charitable institution, no one questions. That it was conducting business as such in the city of Council Bluffs at all times in controversy, through one of its local subdivisions, is equally well settled. The evidence shows that the testatrix, Miss Durham, was quite interested in the work of this institution, and talked a great deal about it at various times. Crum, a witness, who was president of the National Bank, drew the will under consideration. He says that, in her conversation with him prior to the drawing of this will, she said:
"Now, there is a Salvation Army there at Council Bluffs, that has been there some time. There has been a split or division among them in recent years. Now, I don't want that other organization to have any, — I don't want that, — but I want the original Salvation Army to get this property."
"I didn't know much about the Salvation Army, and that was the way I drew the will. She said she wanted the property to go to the Council Bluffs branch, or chapter, or unit, or whatever you want to call it. I have heard it spoken of as a `corps' — but I don't know anything about that — of the Salvation Army. I don't know whether the word `chapter' was used by me or by her to designate the Council Bluffs unit; but she made it plain to me that she wanted it to go to the Council Bluffs unit of the Salvation Army. After this talk, I went into the dining room and drew the will. It was then signed by her and witnessed while I was there."
The evidence further shows that, after the Salvation Army was chartered by the state of New York, as an eleemosynary corporation, through some dissension within its membership there were several offshoots or organizations that broke away from the parent organization, one known as the "American Salvation Army." There was also the organization called the "Volunteers of America." That appellant organization is the one that was intended by the testatrix in the fourth clause of her will cannot be doubted, under this record. In the light of what we have heretofore said, it is quite apparent that our conclusion *Page 502
is that the court erred in not construing this will as appellant contends. As to the original proceedings construing the will, inIn re Estate of McAllister, 191 Iowa 906, we said:
"* * * a finding and determination of an application for the construction of a will * * * is more in the nature of an administrative act than a final determination or adjudication. * * * Such order lacks the essential elements of a final adjudication."
As we have heretofore shown, the executor was not discharged, and the order construing the will, as well as the order for approval of final report and distribution, was not binding on these appellants.
The claim of the executor in the proceedings to construe the will was that the clause in controversy was inoperative and void and of no effect, because no such organization or body existed as was named in said clause, and that the same was indefinite and uncertain. The court held that said clause was null and void and of no effect, for the reason that the same is uncertain and indefinite, and there is no organization or party in existence such as is designated in said will. In Wilson v. First Nat. Bank,164 Iowa 402, at 409, we said:
"Indefiniteness as to the individual beneficiary is no objection to the validity of a charitable trust. On the contrary, such indefiniteness is rather a characteristic feature of a good devise to charitable uses. It is sufficient if the class to be benefited is designated in a general way, and the practical application of the gift to its intended uses is confided to a trustee."
Charitable gifts are strongly favored by the courts, and they will carry them into effect if it can be done consistently with the established rules of law, and will never construe a charitable bequest to be void unless it is so absolutely clouded that they cannot discover the testator's meaning. Such seems to be the trend of our cases. See In re Estate of Johnston, 141 Iowa 109; In re Estate of Stuart, 184 Iowa 165; Wilson v. First Nat.Bank, supra. The court will, if the occasion necessitates it, appoint a trustee to execute such a bequest. In re Estate ofCrawford, 148 Iowa 60.
That extrinsic evidence is admissible to aid in the construction of a will and to identify the beneficiary intended, is well settled under our former holdings. In re Estate ofStuart, supra; Wilson v. First Nat. Bank, supra; Chapman v.Newell, *Page 503 146 Iowa 415; Covert v. Sebern, 73 Iowa 564. Under these holdings, we have no doubt that the appellants were entitled to have the will so construed as that the appellant Salvation Army would take the property provided in the fourth paragraph of decedent's will; and we so hold. See, also, Martinson v.Jacobson, 200 Iowa 1054.
Some question is raised in the case as to whether or not the application filed by appellant herein should have been filed at the same term of court at which the order was made. It is to be said, in passing, that, under Section 11819 of the Code of 1924, the probate court is always open for the transaction of probate business; but, be that as it may, we are not seriously confronted with this question, because, as said under our holding, the orders made both as to the construction of the will and the approval of the final report and order of distribution were not binding on appellant.
The ruling of the court herein is reversed. — Reversed.
De GRAFF, C.J., and EVANS and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430115/ | [1] I. Defendant's first proposition is that the court erred in permitting the witness, Margaret Blanchard, 8 years of age, to testify because she did not understand the meaning of an oath, nor what it meant to be a witness. On preliminary examination as to her competency by the court, she testified she knew what "telling the truth" meant and knew what a lie was; that it was wrong to tell a lie, and that punishment was the penalty for not telling the truth. She further testified:
"Q. If I ask you to hold up your hand, I will say to you `will you swear to tell the truth, the whole truth and nothing but the truth' in what you say on the witness stand, do you know what that means? A. Yes."
The witness also stated that taking an oath meant "not to swear."
That the witness did not understand the meaning of the word "oath" as used in judicial procedure, and did not know the definition of the word "witness", is not controlling. She understood her obligation to tell the truth as a witness and pledged herself to tell the truth. The court did not err in permitting the witness to testify. State v. Teager, 222 Iowa 391,269 N.W. 348; State v. Yates, 181 Iowa 539, 164 N.W. 798; State v. Beckner, 197 Iowa 1252, 198 N.W. 643; State v. Meyer, 135 Iowa 507,113 N.W. 322, 124 Am. St. Rep. 291, 14 Ann. Cas. 1; St. Peter v. Iowa Telephone Co., 151 Iowa 294, 131 N.W. 2.
Furthermore, no objection was made to the competency of the witness until the conclusion of her testimony. See State v. Beckner, 197 Iowa 1252, 198 N.W. 643; State v. O'Malley, 132 Iowa 696,109 N.W. 491.
[2] II. Defendant also claims that it appears from the cross-examination of the witness, Margaret Blanchard, that she was coached what to say by her mother and that her testimony was that of her mother, Mrs. Esther Blanchard, and not the testimony of the witness.
In May, 1938, Bernice Davis, the prosecuting witness, age 14, was residing in the home of Mrs. Esther Blanchard who lived *Page 635
in Boone. Her duties were to help Mrs. Blanchard in caring for her children. On the evening of May 17, 1938, Bernice, with Mrs. Blanchard's consent, took Margaret Blanchard, 8 years old, to a street carnival. Sometime between 10 o'clock and midnight the two girls got in the Ford coupe of the defendant, James Diggins. At that time defendant and Earl McCoy were in the coupe. A short time later Earl McCoy left the car. The defendant, Bernice Davis and Margaret Blanchard remained in the car until about 2:30 in the morning. During this time the defendant drove the car in the town of Boone and various places in the country. At 2:30 a.m. Margaret Blanchard was taken home. Bernice remained in the car with defendant until about 5 o'clock in the morning when they went to the farm home of defendant's sister with whom he made his home. During the morning, defendant brought Bernice to Boone. Margaret, a normal child, testified on direct examination about her ride in the automobile and as to what she saw and heard. On cross-examination, she testified that she talked with her mother before going on the witness stand; that she told her what to say; that there were certain things her mother told her she must remember. She then testified:
"Q. You wouldn't know what to say if your mama hadn't told you? A. No."
This question called for a negative answer. The answers of the witness to the leading questions of counsel on cross-examination were "yes" or "no".
On redirect examination, Margaret testified:
"Mr. Williams (the county attorney) told me to tell the truth. I have told the truth. I had already told my mother what I told you today and what I said today is the truth, and my mother didn't make it up for me. I remember talking to you at your office. Yes, I know what it means to tell the truth."
The testimony of Margaret on direct examination was clear, frank, direct and intelligent. The testimony of a witness must be construed in its entirety. In view of all of the evidence of this witness, the question of the credit and weight to be given her testimony was clearly for the jury and the trial court *Page 636
was right in overruling defendant's motion to strike the testimony.
[3] III. Another assignment is that there is no corroborating testimony tending to connect defendant with the commission of the offense. It is essential, under Code section 13900, that the testimony of a prosecuting witness be corroborated by other testimony tending to connect the defendant with the commission of the crime.
Bernice Davis testified that during the night defendant attempted to have intercourse with her frequently and did have intercourse with her in the car and in the yard of a schoolhouse. With reference to defendant's attack on her in the schoolhouse yard, she testified defendant drove his car in the yard, stopped, turned off the lights, pulled her out of the car and threw her down on the grass. She then testified:
"At that time he was on top of me. I yelled for Margaret to come and help me and she looked up. We were on the grass when she looked out of the car window. He was on top of me."
The witness then testified to intercourse with defendant at that time.
Defendant admits he was with Bernice from midnight until morning, but denies any misconduct. He also admits driving in the schoolhouse yard but states he stopped there only long enough to let a car approaching from the rear go by and then started his car and went back to Boone.
Margaret Blanchard testified that when she and Bernice entered defendant's car there were two boys in the car and that one of them got out within a short time. The witness further testified:
"I rode in the car quite awhile. I remember stopping at the schoolhouse. At that time there was only one boy in the car, the same boy that was in the car when I first got in. I heard him called Diggins, the Diggins boy. Bernice got out. There was no one left in the car when Bernice got out. I saw Bernice on the grass. She was near the car. The Diggins boy was on the grass on top of her. I was in the car when I saw it. I don't know how long they were on the grass. I didn't see anything else when Bernice was lying on the grass. Neither Bernice nor the man were moving." *Page 637
It was not necessary that all the material evidence of the prosecuting witness tending to connect defendant with the commission of the crime be corroborated. It was sufficient if she was corroborated as to some material fact tending to designate defendant as the perpetrator of the offense.
In State v. Dorsey, 154 Iowa 298, l.c. 300, 134 N.W. 946, the court states:
"It is not necessary that the corroboration be of every material fact. If it be such as to satisfy the jury that the witness spoke the truth in some material part of his testimony in which he is confirmed by unimpeachable evidence, this is sufficient if it leads to the conclusion that he also spoke the truth as to other matters for which there was no corroboration."
See State v. Beltz, 225 Iowa 155, 279 N.W. 386; State v. Lozier, 200 Iowa 652, 204 N.W. 256; State v. O'Meara, 190 Iowa 613,177 N.W. 563; State v. Hetland, 141 Iowa 524, 119 N.W. 961, 188 Ann. Cas. 899.
Whether there was statutory corroboration was a question for the trial court. We are of the opinion that the testimony of Margaret Blanchard furnished such evidence and the trial court was right in submitting the question of its sufficiency and weight to the jury.
[4] IV. Another assignment of error is that instruction No. 10 was erroneous. The first paragraph of instruction No. 10 reads:
"In a prosecution for rape or an assault with intent to commit rape, the defendant cannot be convicted on the testimony of the injured person alone, unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense. The fact that the crime of rape or of assault with intent to commit rape has been committed by someone may be established by the testimony of the injured party alone if the jury is satisfied beyond a reasonable doubt that her testimony establishes such fact; but before the defendant can be convictedof the crime proven there must be other credible evidence than that of the injured party that singles out and points to the defendant as the guilty party and tends to connect him with the commission of the crime."
Defendant objects to the italicized portion of the instruction *Page 638
which he claims told the jury that the crime of rape or assault with intent to commit rape had been proven and left for the consideration of the jury only the question of corroborating testimony.
It was incumbent on the State to prove that the crime of rape and the included offenses had been committed on Bernice Davis and that defendant was guilty of the crime. The above instruction stated the law of the case on the question of corroboration. The words "but before the defendant can be convicted of the crime proven" obviously refer to the immediately preceding statement that the fact that the crime of rape has been committed by someone may be established by the testimony of the injured party alone if the jury is satisfied beyond a reasonable doubt that her testimony establishes such fact.
The second paragraph of the instruction applies the law to the facts of the case and states:
"In this case even though the testimony of the prosecuting witness, Bernice Davis, should convince you beyond a reasonable doubt that the crime of rape, or assault with intent to commit rape, was committed upon her at the time and place in question by someone, yet, under the law, you can not, upon her testimony alone, convict the defendant as the guilty party; but there must be other credible evidence in the case tending to single out the defendant and point to him as the perpetrator of the offense against her, and which, when considered with her testimony, and all the other evidence in the case, is sufficient to convince you beyond a reasonable doubt that the defendant is the person who committed the offense."
This instruction, in substance, tells the jury that if it finds that the State has established beyond a reasonable doubt that the crime of rape was committed on the prosecuting witness, nevertheless, before the defendant could be convicted of the "crime proven" there must be other credible evidence tending to single out the defendant and point to him as the perpetrator of the offense.
In instruction No. 19, the court states:
"The Court does not by these instructions, nor has the Court by any ruling made or by any acts done or words said during the trial, intimated or meant to give any intimation or *Page 639
opinion as to what the proof is or what it is not, or what the facts are or what are not the facts in the case, nor what the verdict should be."
In previous instructions the court told the jury that the State had the burden of proving that defendant was guilty of the crime of rape beyond a reasonable doubt. We are satisfied that the instruction did not contain an assumption of the essential fact that the crime of rape or assault with intent to commit rape had been committed. That determination, of course, was for the jury. We find no error in this instruction requiring a reversal.
[5] V. Defendant asserts the court erred in giving instruction No. 16, which reads:
"Under our law a person charged with a crime may testify in his own behalf, and the defendant has availed himself of this privilege, and in determining the question of his guilt or innocence you must consider his testimony.
"He testifies as an interested witness, and from an interested standpoint, and as such you should consider his testimony; and when you do this, with all the surrounding circumstances in the case, give the testimony such weight, in connection with the other evidence in the case, as you think it entitled to and no more and no less."
The objection to this instruction is that it singles out the testimony of defendant from the testimony of other witnesses in a manner that makes it appear to the jury that his testimony is not worthy of belief and invades the province of the jury.
Like instructions have been repeatedly approved by this court. State v. Stuart, 190 Iowa 476, 180 N.W. 186; State v. Leeper,198 Iowa 83, 199 N.W. 341.
The case is affirmed. — Affirmed.
OLIVER, C.J., and HAMILTON, HALE, BLISS, and MILLER, JJ., concur. *Page 640 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430133/ | In October, 1931, the Educational Films, Inc., of Iowa commenced an action in the municipal court of the city of Des Moines against Don Thornburg. It appears from the return filed herein that the defendant in that action, on November 14, 1931, filed a motion for a change of the place of trial upon the ground that he was a resident of Marshall county. On November 17 following, a resistance to said motion was filed by the plaintiff. On December 3, 1931, the motion was overruled. Subsequently, and on February 25, 1932, the defendant filed an application asking that the ruling on the motion for change of the place of trial be set aside and that the motion be sustained. This motion was likewise overruled. On March 2, 1932, the defendant filed an amendment to his motion for change of place of trial. The amendment, however, presented only a claim for expense and attorney fees. Thereupon a demurrer to the petition was filed and later an amendment thereto. On June 20, 1932, the defendant Thornburg filed answer. The cause was reached for trial on August 23, 1932, on which date the defendant again moved to have the cause transferred to Marshall county for trial. The motion was overruled, and the trial proceeded to conclusion and judgment.
A petition for a writ of certiorari was presented to one of the judges of this court on March 10, 1932, and writ granted. Whether or not the instrument in suit provided in terms that action thereon might be brought in Polk county is not now material. More than twelve months elapsed after the order overruling the original motion for change of the place of trial and the filing of the petition for a writ in this court.
[1] It is provided by section 12467 of the Code that:
"No writ shall be granted after twelve months from the time it is alleged the inferior court, tribunal, board, or officer exceeded its or his jurisdiction, or otherwise acted illegally."
A writ directed to the order overruling the original motion could not properly be issued after the time specified in the statute. Holcomb v. Franklin, 212 Iowa 1159, 235 N.W. 474.
[2] As we interpret the petition filed in this court for a writ, the petitioner does not seek to challenge the ruling on the original motion. The action is directed rather to the ruling of the court on August 23, 1932. It is also provided by statute, section 11053 of the Code of 1931, that: *Page 457
"If an action is brought in a wrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demands a change of place of trial to the proper county, in which case the court shall order the same at the cost of the plaintiff, and may award the defendant a reasonable compensation for his trouble and expense in attending at the wrong county."
It will be observed from the foregoing statement that the motion now being considered was filed after answer. This the statute clearly does not permit. Burke v. Dunlap, 185 Iowa 949,171 N.W. 293; Kosman v. Thompson, 204 Iowa 1255, 215 N.W. 261. Authority to prosecute an action commenced in the wrong county to judgment, in the absence of a motion for a change of place of trial, is specifically conferred by the statute quoted above. If the defendant desired to have the cause transferred to the county of his residence for trial, he was bound to file a motion for that purpose. Goldsmith v. Willson, 67 Iowa 662, 25 N.W. 870; Marquardt Sons v. Thompson, 78 Iowa 158, 42 N.W. 634. Such motion must be filed before answer. The case here presented is not one where the motion was filed before answer and overruled. In such case, the defendant does not by answer waive error in the ruling. Marquardt Sons v. Thompson, supra. In this case, the error of the court, if any, in overruling the original motion, was committed more than twelve months before the petition for a writ of certiorari was filed in this court, and if, upon any theory, the subsequent filing of a second motion for a change of place of trial, after the first has been overruled, is permitted, it cannot, in any event, properly be filed after the answer. The procedure is wholly statutory, and the statute must be followed.
It therefore follows that the writ is not available to petitioner in this case. It must therefore be annulled. — Writ annulled.
KINDIG, C.J., and ANDERSON, MITCHELL, and KINTZINGER, JJ., concur. *Page 458 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430134/ | I. For more than 25 years, the plaintiff, a partnership, has been the owner and in occupancy of nearly all of Block 23 in Tuttle's Addition to Clear Lake. It is engaged in the coal and lumber business, and has carried on its business 1. MUNICIPAL during all these years upon said Block No. 23. CORPORA- It has constructed several valuable buildings TIONS: thereon, including coal and lumber sheds. Its streets and possession of all of the block except Lot 3 alleys: thereof has been exclusive, in a legal sense, at estoppel to all times prior to this controversy. In June, open. 1927, the city served notice upon it to vacate the alleys in the block. The claim of the city to the alleys is predicated upon the plat of the addition. It appears that the plat of Tuttle's Addition was executed in the fall of 1859, and was duly recorded. This plat purported to contain six blocks. *Page 737
The area of ground covered by it was in the form of a right-angled triangle. The longitudinal lines of the lots and streets upon the plat are laid parallel to the hypotenuse. This results in diagonal streets and alleys. Block No. 23 is situated at the foot of the hypotenuse, in the acute angle between the hypotenuse and base. The block is fractional only, a part of it being cut off by the base line. Of the six blocks included in the addition, only two are complete. All the others are more or less mutilated by their diagonal relation to the base and perpendicular.
Except as to Lot No. 3, which comprises one eighth of a complete block, and which comprises the upper one fourth of the westerly half of the block, the plaintiff has occupied the entire block, without recognition of boundaries either of lots or of alleys. The recorded plat shows two alleys cutting across the block at right angles to each other and intersecting each other at the center of the block. The city of Clear Lake was not incorporated until 1871. No affirmative action had ever been taken by the board of supervisors by way of acceptance prior to 1871, nor by the city council after the incorporation of the city. There were some defects of description contained in the recorded plat. One starting point was described as the certain corner of "Block No. ___." The number of the block was not in fact inserted.
In defense of its possession, the plaintiff asserted that no dedication of the alleys was ever made; that no acceptance thereof was ever had; that said alleys were abandoned by the city; that the city was estopped to oust the plaintiff therefrom because, for more than 25 years, with full knowledge of all that was done, it had permitted the plaintiff to occupy and improve said alleys and to erect valuable improvements thereon, and this with full knowledge that the plaintiff was claiming the right of use and possession. It is also urged that the alleys indicated on the plat are so located as to become mere blind alleys, without any opening or connection at their southerly ends. Whether this is claimed to result from their diagonal courses, is not clear from the record. It is claimed by plaintiff that the plat was not accurately laid to the ground, and that the location of the lots and streets and alleys is not in fact responsive to the call of the plat, and that this results in leaving the southerly terminals of the alleys without any extensions open to them. Whether it be chargeable to the diagonal courses or not, a very confusing record *Page 738
is presented to us. To speak parenthetically, the writer hereof is tempted to say that the diagonal plat of realty is a form of well-meaning perversity. It serves to hinder simple and accurate description and to confuse orientation. Only the man with an instrument can know just where he is upon a diagonal line. The rational orientation of the prairie is that which points its prow to the north star, and conforms its lines to the latitudes and longitudes of the earth. We are not disposed, however, to lay undue stress upon the irregularities of the dedication or the alleged defects upon the plat.
By agreement of the parties, the trial judge was requested to go upon the ground and to view the premises, as an aid to judgment. He has incorporated in his findings of facts his observations, which are in harmony with the testimony. He found for the plaintiff on virtually all of the grounds asserted by it. These various grounds are closely related, and are in the nature of variations of each other. Non-acceptance and abandonment are approximately the same thing. These also furnish the grounds for an estoppel. We consider these grounds as they bear on the question of estoppel. It has been long settled in this state that a city may estop itself from asserting the right of the public to an alley. This is so where, with the knowledge of the city, an occupant has asserted a right to the ground where the alley is located, and has maintained such possession under such claim, with the knowledge of the city, for more than ten years, and, with such knowledge of the city, has erected valuable improvements thereon. Then, in such event, the city will be estopped from asserting title to such alley. The reasons for such a holding have been elaborately stated in several of our previous cases. If we were to recite them again, we could do no better than to quote what has been previously said. A very full discussion will be found in Weber v. City of Iowa City, 119 Iowa 633, 638. This was followed by Burroughs v. City of Cherokee,134 Iowa 429; and still more recently in Christopherson v.Incorporated Town of Forest City, 178 Iowa 893. To the same effect are Heller v. Cahill, 138 Iowa 301; Lucas v. Payne,141 Iowa 592; Lacy v. City of Oskaloosa, 143 Iowa 704. Sufficient to say that the evidence in this case brings it within our holding in the foregoing cited cases. We are content to sustain the decree of the district court upon that ground. *Page 739
II. The appellant lays some stress upon its assertion that there is a defect of parties, in that the owner of Lot No. 3 is not a party hereto, and that he is necessarily interested in the alley on which his lot abuts. The appellant 2. APPEAL AND asks, therefore, that the whole proceeding be ERROR: dismissed on that ground. No question of this reservation kind was raised in the district court, either by of grounds: pleading or otherwise. If it had been raised defect of there, the defect could have been cured by an parties. amendment making such owner a party. The defect, if such, is not curable in this court. That is a sufficient reason why parties litigant are not permitted to raise in this court for the first time questions that should have been raised in the district court. The point thus raised by the appellant cannot be sustained, whatever its merit might have been if raised in the district court. Nor can we be concerned as to the effect of the deficiency, if such, upon the adjudication herein.
For the reasons here stated, the decree of the district court is — Affirmed.
ALBERT, C.J., and KINDIG, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430135/ | This is the second appeal in this case. The former opinion appears in 197 Iowa 1118.
Only a partial statement of the record is necessary, so far as the questions involved in the appeal are concerned.
Eighth Avenue in the city of Vinton runs north and south. Appellant's tracks, six in number, cross Eighth Avenue. To the west of Eighth Avenue and between Tracks 3 and 4 is the freight house of appellant. This freight house stands 68 feet west of the center of Eighth Avenue. About five blocks west of Eighth Avenue, between Tracks 3 and 4, is the passenger station of appellant.
On the day in controversy, appellee was driving south on Eighth Avenue. He crossed Tracks 1, 2, and 3, and the accident occurred on Track 4, where his car was struck by appellant's passenger train, coming from the west.
One of the claims made by appellee is that each of the three tracks to the west of Eighth Avenue had box cars standing thereon, which obstructed his view to the west, and that for that reason he could not see the passenger train, as and after it left the station. While it is admitted that there were cars on Track 1, the north track, the company claims that there were no box cars on Tracks 2 and 3, and that, had appellee looked, after he passed Track 1, he could have seen the approaching train, and thus avoided the accident.
We have numbered these tracks Nos. 1 to 6, beginning with the north track.
Appellant tendered a witness, one Stewart, who saw the accident. Stewart says that, immediately 1. RAILROADS: thereafter, he walked to a point about the accidents at center of Track 3 and the center of Eighth crossings: Avenue, and that, from where he stood, looking obstruc- west, he could see the main line, Track 4, from tions: evi- the passenger station to the west end of the dence pro freight house. The court refused to admit the and con. testimony thus proffered. It appears to us that this was very material testimony for the appellant, and should have been *Page 899
admitted. If what the witness said was true, it tended to squarely negative the contention of appellee that the view to the west was obstructed by cars on Track 3, the place where the witness stood. It also tends to negative the testimony of appellee himself that he stopped his car on Track 3 and looked to the west, but could not see the approaching train because his view was obstructed by cars on that track. State v. Nowells,135 Iowa 53; Lawrence v. City of Sioux City, 172 Iowa 320; Burg v.Chicago, R.I. P.R. Co., 90 Iowa 106; Snakenberg v. Minneapolis St. L.R. Co., 194 Iowa 215; Houston T.C.R. Co. v. Ramsey,43 Tex. Civ. App. 603 (97 S.W. 1067); Vandalia R. Co. v. Duling,60 Ind. App. 332 (109 N.E. 70).
The appellant requested several instructions, stating in different forms the doctrine designated as a physical-fact rule, the substance of which is that if, in approaching this track, the appellee's view of the approaching train was 2. RAILROADS: unobstructed, he is held by the law to have seen accidents at the train, and was, therefore, guilty of crossings: contributory negligence. The court refused all "physical of the instructions asked by appellant on this fact" rule: subject, and did not cover it in the diverting instructions given. True, it was a disputed circum- question whether or not the appellee's view was stance. obstructed; but, if the jury concluded that his view was not obstructed, then of course this doctrine would apply. In our judgment, it should have been given. Appellee meets this proposition by contending that this rule has no application where there are diverting circumstances, and cites Glanville v.Chicago, R.I. P.R. Co., 196 Iowa 456, and High v. Waterloo,C.F. N.R. Co., 195 Iowa 304. Neither of these citations decides the question of a diverting cause or circumstance; but, be that as it may, the evidence of appellee himself shows the following condition: When he drove onto Track 3, which is 60 feet north of Track 4, the main-line track, where the accident occurred, he stopped his car, and, looking to the east, he saw a freight train about 300 feet from the crossing where the accident occurred. This train was standing still. He says he noticed it, but gave no further attention to it. Under these circumstances, the standing freight train cannot be said or considered to be a diverting cause or circumstance. *Page 900 Guhl v. Whitcomb, 109 Wis. 69 (85 N.W. 142). We are satisfied, under the record, that appellant was entitled to an instruction calling for an application of the physical-fact rule.
In a colloquy between the court and counsel, during the trial, the court announced that the measure of damages would be the difference between the value of the car immediately before and immediately following the accident. In its instructions to the jury, the court, after having advised the jury what was necessary for appellee's recovery, proceeded:
"You will then consider the proposition of damages in favor of the plaintiff, and proceed to assess the damages herein to which the plaintiff is entitled, as shown by the evidence. In such sum you should take into consideration the value of 3. DAMAGES: the automobile, as shown by the evidence, measure of immediately before the happening of the damages: accident, and the value of the automobile, as failure to shown by the evidence, immediately after the limit happening of the accident; but in no event can findings. your verdict herein against the defendant exceed the gross sum of $1,000."
This instruction is objected to by appellant from two angles: First, that it does not confine the jury, in its finding of damages, to the difference in the value of the car before and after the accident. A reading of this 4. DAMAGES: instruction shows that this is a valid objection measure of to the instruction as written. It simply says to damages: the jury that they may take into consideration article of the difference in values, but it does not limit personalty: them to that in determining the damages. The reparable second contention against this instruction is and equally as, if not more, serious, to wit: that, irreparable if it is construed to limit the jury, in injury. assessing damages, to the difference in the value of the car before and after the accident, that rule has no application to the facts in the case. The evidence describes the condition of the car after the accident. Appellee introduced testimony showing the total cost of repairing the car. The repair bill amounted to $223.57. True, the appellee gives his opinion that the fact that the car had been in a railroad accident hurt its value for resale purposes, but this does not aid things much in this respect. There *Page 901
seems to be a slight misunderstanding of our cases on this question, but we deem the following to be the general rules of law governing such matters:
1. When the automobile is totally destroyed, the measure of damages is its reasonable market value immediately before its destruction.
2. Where the injury to the car can be repaired, so that, when repaired, it will be in as good condition as it was before the injury, then the measure of damages is the reasonable cost of repair plus the reasonable value of the use of the car while being repaired, with ordinary diligence, not exceeding the value of the car before the injury.
3. When the car cannot, by repair, be placed in as good condition as it was in before the injury, then the measure of damages is the difference between its reasonable market value immediately before and immediately after the accident.
These three rules are deducible from the following authorities:Carruthers v. Campbell, 195 Iowa 390; Anderson v. United StatesR. Adm., 193 Iowa 1041; Pugh v. Queal Lbr. Co., 193 Iowa 924;Herrick v. Merchants T. S. Co., 187 Iowa 862; Huddy on Automobiles (7th Ed.), Sections 868, 872; Berry on Automobiles (4th Ed.), Sections 1071 to 1085.
Some things are said in some of our cases, mostly by way of dictum, which do not harmonize with the above rules; but, to the end that the rules may be clearly stated and understood by the bench and bar, we have put them in the above form. Under these rules, the court, in its instructions, gave to the jury an incorrect rule for measuring the damages.
Some other matters are urged on our attention, but they will probably not arise on a retrial of the case, and we give them no further attention. — Reversed.
De GRAFF, C.J., and EVANS and MORLING, JJ., concur. *Page 902 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430137/ | [1] This is a phase, perhaps the closing chapter, of what has been protracted litigation. Former opinions of this court, which mark the progress of the litigation, include Ontjes v. Bagley, 1933, 217 Iowa 1200, 250 N.W. 17; Bagley v. District Court, 1934,218 Iowa 34, 254 N.W. 26; Ontjes v. McNider, 1934, 218 Iowa 1356, 256 N.W. 277; Ontjes v. McNider, 1937, 224 Iowa 115, 275 N.W. 328; Ontjes v. McNider, 1942, 232 Iowa 562, 5 N.W.2d 860. The litigation was instigated by F.A. Ontjes, who is a lawyer. Originally he was named as the sole plaintiff and he has appeared throughout as counsel pro se. Later he has also appeared with other lawyers as counsel for coplaintiffs. It is contended, and there is some evidence to support the contention, that he insisted upon controlling the litigation as plaintiff. But whether or not he controlled it in law or in fact, the record is conclusive that throughout he dominated the presentation of the plaintiffs' side of the litigation.
In 1920 Ontjes had become the owner of one hundred shares of stock, par value of $100 per share, in the Northwestern States Portland Cement Company, a West Virginia corporation engaged in the cement business at Mason City, Iowa. C.M. McNider, prior to his death in 1928, had been the dominating personality in the management of this company. In 1929 it was proposed to reorganize the company as an Iowa corporation. Hanford MacNider, son of C.H. McNider, testified that the inheritance-tax *Page 210
statute in West Virginia, and its application to transfers of stock after the decease of a stockholder, constituted one of the inducements for reincorporation in Iowa. There were certain features of the proposed reorganization to which Ontjes took vigorous exception. He commenced an action to enjoin the project. A temporary injunction was granted. On appeal the order was reversed. Ontjes v. Bagley, supra, 217 Iowa 1200, 250 N.W. 17.
While the foregoing appeal was pending in this court, a controversy arose over the right of Ontjes, as plaintiff, to take the depositions of certain defendants. Resistance was made thereto. The court overruled the resistance and ordered the defendants to permit their depositions to be taken. Certiorari in this court followed and the order complained of was held to be illegal. Bagley v. District Court, supra, 218 Iowa 34, 254 N.W. 26.
In the meantime, Ontjes had filed a claim against the estate of C.H. McNider, deceased, in behalf of himself and other stockholders of the cement company similarly situated, for an aggregate sum of $2,393,143 by reason of transactions of C.H. McNider, while an officer of the cement company, in the purchase of stock in other independent cement companies, and the payment to McNider by the cement company of excessive salaries and bonuses. Ontjes attempted to join other parties defendant and other issues with the claim in probate. Defendants moved to strike and dismiss the count of the petition which undertook to join the other parties and the other issues with the claim against the estate. The motion was overruled. On appeal the order was reversed. Ontjes v. McNider, supra, 218 Iowa 1356, 256 N.W. 277.
The claim in probate had been filed August 6, 1931. C.H. McNider had died testate on October 30, 1928. Hanford MacNider, his son, and May H. McNider, his widow, promptly qualified as executors. The claim not being filed within twelve months from the giving of notice of such qualification, the executors asserted that the claim was barred by reason of the limitations stated in section 11972, Code, 1927. Ontjes contended that the claim was not thus barred because peculiar circumstances entitled him as claimant to equitable relief. Considerable testimony *Page 211
was taken to determine the issue of equitable relief. The court held with Ontjes and the executors appealed. This court declined to decide the issue, holding that the order appealed from was not an appealable order, but that it would inhere in any final judgment that might be entered in the trial of the claim upon its merits and might be considered and determined upon an appeal from such final judgment. Ontjes v. McNider, supra, 224 Iowa 115, 275 N.W. 328.
Thereafter a protracted trial was had on the merits. The court disallowed in its entirety the claim for $2,308,153 based upon acquisition by C.H. McNider of certain stock in LaSalle Cement Company and the Alpha Portland Cement Company from the Sandusky Cement Company and Charles Boettcher, allowed $30,014 and interest for negligent sales by McNider of Alpha Portland Cement Company stock held by Northwestern States Portland Cement Company at prices below the prevailing market price, and allowed $27,916.66 and interest for illegal bonuses and salaries paid by the Northwestern States Portland Cement Company to McNider. On appeal, the judgment was affirmed. Ontjes v. MacNider, supra,232 Iowa 562, 5 N.W.2d 860.
Following the affirmance of said judgment, proceedings were had for the allowance of attorney's fees and expenses from the amount recovered. The court determined that the net recovery amounted to $103,892.19 and that, from such recovery, there should be deducted and paid the following amounts: to F.A. Ontjes $20,000 for attorney's fee and $4,750 for expenses; to the estate of Ben S. Hunter $500 for attorney's fee; to W.G. Henke $9,000 for attorney's fee and $700 for expenses; to D.M. Kelleher $9,000 for attorney's fee and $350 for expenses; to F.F. Faville $5,000 for attorney's fee and $350 for expenses; to L.A. Ristau $83.15 for services as accountant. The costs of the hearing, amounting to $52.65, were also ordered paid out of the recovery. The balance of the recovery, in the amount of $54,106.39, was ordered paid to the Northwestern States Portland Cement Company of West Virginia. From this order, the Northwestern States Portland Cement Company appeals.
The only deduction which it challenges is that allowed to *Page 212
Ontjes of $20,000 for attorney's fee and $4,750 for expenses. It does not challenge the amount of either allowance. It merely challenges the right or power of the court to make any allowance to Ontjes for either item. No other issue is presented by this appeal. However, so many reasons are suggested for a decision of that one issue, based upon the many implications that arise from the long and involved record of this litigation, which was incorporated into the proceedings herein, that some comment seems appropriate at this point to narrow the single issue submitted to us and to clarify the precise question presented for our decision.
The judgment against the estate of C.H. McNider has been paid, the estate has been closed, and the executors are not involved in or affected by the matter now before us. The parties stipulated, before this appeal was taken, that the Northwestern States Portland Cement Company would not appeal from any part of the court's order, except that which made an allowance to Ontjes, and that it would not challenge the amount of such allowance. Even so, it is important to bear in mind the basis for the allowance that was made.
The court allowed Ontjes nothing for fees or expenses incident to the injunction case (Ontjes v. Bagley, supra, 217 Iowa 1200, 250 N.W. 17), the certiorari action (Bagley v. District Court, supra, 218 Iowa 34, 254 N.W. 26), or the proceedings involving the joinder of actions and parties (Ontjes v. McNider, supra,218 Iowa 1356, 256 N.W. 277). The court allowed Ontjes nothing for fees or expenses incident to the claim for $2,308,153 based upon the acquisition by McNider of stock in LaSalle Cement Company and Alpha Portland Cement Company. The fees and expenses that were allowed were those pertaining only to the recovery of $30,014 and interest based on sales by McNider of Alpha stock owned by the Northwestern and $27,916.66 and interest based on salaries and bonuses paid to McNider. Both of these claims were challenged by the executors as being barred by section 11972, Code, 1927. The litigation incident to the issue of equitable circumstances (Ontjes v. McNider, supra, 224 Iowa 115, 275 N.W. 328) was indispensable to recovery on said claims, and, of course, a substantial portion of the trial on the merits (Ontjes v. MacNider, supra, *Page 213 232 Iowa 562, 5 N.W.2d 860) pertained to and resulted in the recovery had for the benefit of the corporation.
The situation is complicated by the fact that Ontjes was named as a party plaintiff as well as an attorney of record. This is the real basis for appellant's contentions here. However, it is important to bear in mind that Ontjes acquired his stock in the Northwestern ten years before this litigation was commenced. The original acquisition of his stock had no connection with the commencement of the litigation. Also, while Ontjes dominated the presentation of the plaintiff's side of the litigation, he did so after the corporation refused to act. He attended the annual stockholders' meeting of the corporation in December 1931, and presented a resolution which would have directed the attorneys for the corporation to prosecute the claim against the McNider estate. That resolution was vigorously resisted and decisively defeated. Thereafter, Ontjes undertook to prosecute litigation which the corporation refused to prosecute, which it definitely did not want to have prosecuted, and which it persistently undertook to discourage.
An unfortunate element in the litigation, productive of intense animosity between the litigants, was the fact that the character of C.H. McNider became an issue. The $2,308,153 claim, which was ultimately rejected, would have reflected against his memory had it been established. Also, certain grounds for the claim of $30,014, relating to the sale of Alpha stock, and the claim of $27,916.66, relating to salaries and bonuses, might have constituted adverse reflections had they been established. In all of these, however, the trial court held against Ontjes and found that there was no actual fraud in the sale of the Alpha stock, and that the salaries and bonuses, though large, were in fact earned by McNider. The recovery allowed was, in each instance, based upon technical grounds which did not reflect upon the integrity of the deceased.
Accordingly, the actual allowance to Ontjes for fees and expenses was based, primarily, upon these facts. Ontjes, a lawyer, had been for ten years the owner of stock in the Northwestern Company of the par value of $10,000. He discovered facts which led him to believe that, for technical reasons, the estate of C.H. McNider was indebted to the corporation for a *Page 214
substantial sum of money. Ontjes advised the corporation of the grounds for thus believing that a recovery could be had and proposed a resolution that would have required prosecution of the claim against the estate. The majority stockholders refused to take such action. Ontjes, as a minority stockholder, prosecuted the claim and, after long and bitter legal encounters, recovered over $100,000 for the corporation. He acted as attorney and incurred expenses. The corporation profited therefrom. The court awarded him a fee for his services, and reimbursement for his expenses in those instances that produced benefit to the corporation, each to be paid from the recovery that was had.
It is often true of men who act aggressively and with determination that when they prove to have been right they receive praise for courageous, persistent perseverance which has finally prevailed, but when they prove to have been wrong they receive condemnation for unreasonable, stubborn bullheadedness which has led at long last to bitter defeat. So it is with Ontjes here. His counsel extol him for his courageous, persistent perseverance which has produced a recovery for the benefit of the corporation of over $100,000. Counsel for appellant, however, challenge the holding of the trial court that the things which Ontjes did right can be considered separately from those that he did wrong, and condemn him for unreasonable, stubborn bullheadedness which complicated and prolonged the litigation and led in the end to bitter defeat upon the principal part of that for which Ontjes was fighting over a period of a dozen years. Appellant contends that the things in regard to which Ontjes was proven to be wrong so permeate and contaminate the whole picture that he should be denied any consideration whatever for those things wherein he was ultimately sustained.
The trial court refused to be driven to the harsh result for which appellant contends, took into consideration those features of the litigation wherein Ontjes was discredited and defeated, cast upon him the full burden for such, and, in substantial measure, penalized him and reduced the benefits which would otherwise have been his for those features of the litigation wherein he ultimately prevailed. Appellant makes no challenge to the fairness of such apportionment, insisting only that Ontjes *Page 215
can have nothing at all. It is a harsh result for which it contends and should be reached, if at all, only because the law demands it. We are unwilling to so hold. We prefer to sustain the trial court.
Appellant asserts five propositions as reasons for reversal herein. As above stated, most of them are based primarily upon the fact that Ontjes was named a party plaintiff and appeared as attorney pro se. Many of the authorities relied upon are not in point and are not persuasive because of the anomalous situation presented by the fact that this is a suit by a minority stockholder for the benefit of the corporation. While Ontjes was named as plaintiff, the recovery belongs to the corporation. Also, in appearing as attorney, while he represented the interests of the corporation and theoretically was attorney for the corporation, the personal mutual trust and confidence, basically the foundation for the normal relationship of attorney and client, were conspicuously absent. There was open, violent hostility between Ontjes and his theoretical client, the corporation.
I. Appellant contends that the relationship of attorney and client is dependent upon contract, express or implied, and that since Ontjes, as attorney for himself, could not contract with himself, there was no such relationship here. But in a stockholders' suit such as this the relationship is superimposed by law and is not based on contract.
In Graham v. Dubuque Specialty Machine Works, 138 Iowa 456, 460, 114 N.W. 619, 621, 15 L.R.A., N.S., 729, we fixed an attorney's fee in a stockholders' action for the benefit of the corporation. In discussing the relationship of the parties we stated as follows:
"But the suing stockholders had no right to enter into a contract in behalf of the corporation. * * * No such authority had been delegated to them, and the relation of agency was not to be implied from their relative situations."
Again, at page 462 of 138 Iowa, page 621 of 114 N.W., we stated:
"Nor are the expenses of litigation allowed the shareholder on the theory that he has acted as the agent of the corporation in what he has done. The action is, to all intents and purposes, *Page 216
the suit of the corporation, and is for the benefit of all parties interested to protect a trust fund, and on this ground the stockholder is reimbursed from such fund for all proper expenditures made or liabilities incurred."
And at page 463 of 138 Iowa, page 622 of 114 N.W., we stated:
"But no more than reasonable expenses, including attorney's fees, may be exacted. * * * The right to the recovery of costs at all is contingent on success in the suit. If the action is successful, the plaintiffs may recover for, or have taxed, their attorney's fees; if unsuccessful, they may not. The contingency, however, is in the right to maintain the action, for unless sufficient grounds appear, and the corporation through its officers refuses to sue, there is no occasion for the stockholder to interpose for the protection of corporate interests. The expense in such a case is that of an intermeddler. It is only when he has been an instrument for the protection of corporate interests that he can legitimately claim his expenses, and then only such reasonable expenses as the corporation must have incurred had it prosecuted the action in its own interest. The contingency of success, then, cannot be taken into account in fixing upon the compensation to be allowed plaintiff for the services rendered as an attorney; only in deciding whether any compensation whatever shall be allowed."
The foregoing principles of law are universally recognized and applied by courts generally. See annotation 49 A.L.R. 1190. Illustrative is the case of Hutchinson Box Board Paper Co. v. Van Horn, 8 Cir., Kan., 299 F. 424, 430, wherein Judge Phillips, speaking for the court, stated:
"Appellants' third contention is that the court erred in allowing attorney's fees. They predicate this upon the proposition that appellee is only entitled to reimbursement for attorney's fees and expenses actually paid out, and that it affirmatively appears, from the contract above referred to and the evidence of Malloy, appellee has not paid out anything on account of attorney's fees. This contention appears to us to be unsound. All of the authorities are agreed that the amounts of attorney's fees recoverable in such cases are not to be measured *Page 217
by what the plaintiff has expended or contracted to expend, but are limited to the reasonable value of the services, and are contingent upon the success of plaintiff's action. This is true because the plaintiff has no authority to contract in behalf of the corporation for the payment of counsel fees and other expenses. The theory upon which the attorney's fees are allowed is that, if the action is successful and the corporation has been benefited, it should pay the reasonable value of the services rendered it. Under this theory the corporation which received the benefit of the attorneys' services in this case ought to pay the reasonable value thereof."
The law is well settled that there is no contractual basis for the award of attorney's fees or expenses to Ontjes. The contention of appellant, based upon the proposition that such right of Ontjes is dependent upon a contract, has no merit.
[2] II. Appellant contends that Ontjes should be denied an allowance because he had no outlay for attorney's fees. This contention is fully answered by the quotation from the Van Horn case, supra. The allowance is not based on outlay. It is based solely upon the reasonable value of services rendered in an action that has been successful and from which the corporation, after refusing to act, has benefited. The cases relied upon by appellant are not in point. The contention has no merit.
[3] III. Appellant contends that Ontjes was his own lawyer and that public policy forbids an allowance from the fund in court for his attorney's fees. Reference is made to a dispute in the evidence over an alleged conversation between Ontjes and Hanford MacNider at the time the injunction suit was commenced from which appellant would deduce that Ontjes offered MacNider his stock and by implication threatened to make it expensive for him if he did not buy him out. However, no fees were allowed for the injunction case and this disputed conversation is not tied up with the matter now before us.
It is also contended that to allow Ontjes an attorney's fee would encourage a lawyer who is a stockholder to commence litigation for the primary purpose of gaining attorney's fees. We do not so interpret the record. Nor do we think that such encouragement is apt to spring from the experience had herein. *Page 218
As above stated, to recover fees at all it must be shown, in actions such as this, that the action is well grounded; the corporation must have refused to act; the action must be prosecuted to a successful conclusion, and then only a reasonable attorney's fee can be allowed; the allowance is made by the court and is commensurate with the benefit received by the corporation. Here most of the services rendered by Ontjes produced no such benefit. He was allowed nothing for them, stood the loss personally. The court found that the services which resulted in a benefit to the corporation, if figured on a per diem basis, would have produced a sum in excess of what the court considered reasonable in view of the results obtained. The conclusion seems inescapable that, if Ontjes undertook the litigation for the purpose of laying a foundation for attorney's fees, the venture was quite unprofitable.
It is difficult to be specific with such a mass of facts as here presented. The fee allowed seems large. But the trial on the merits in the district court consumed seven months. There were over four thousand exhibits, over six thousand pages of transcript. Months of preparation preceded the trial. Such a trial is something of an ordeal. Even when successful, it can raise havoc with a lawyer's practice. When it is unsuccessful, it can be disastrous. There had been a three weeks' trial on the issue of equitable circumstances. There had been four appeals to this court. Another protracted appeal, requiring two years of effort just to get the record made and the briefs on file, followed. This is the sixth time Ontjes has been before this court in the past eleven years during the course of the litigation. The loss imposed upon Ontjes, for that part of the litigation which was unsuccessful, is substantial. The experience had herein should be a serious deterrent, certainly not much of an inducement, for future ventures of a similar character.
The other lawyers, whom Ontjes invited to be associated with him in this litigation, have been awarded substantial sums and have been paid. Under the authorities reviewed they were clearly entitled to fees. The allowances are not disputed here. Is Ontjes required to suffer the entire burden of his time and effort without any compensation merely because he was the instigating stockholder? As a stockholder he could make no contract *Page 219
that would bind the corporation. Any expense he incurred was at his peril. Any right to reimbursement depended upon the success of the venture and the discretion of the court after success was obtained. What basis can there be for saying that, in this unusual type of litigation, it is fatal to an attorney to participate if he is a stockholder?
[4] IV. The usual status of attorney and client does not exist herein. The cases that discuss that usual status are not in point. Counsel have furnished us no authorities squarely in point. Diligent search has revealed none. Appellant contends that Ontjes, as instigating stockholder, stood in a position analogous to that of a trustee. Cases upon that question, that seem to be analogous, support the trial court.
In the Restatement of the Law, Trusts, section 242, comment d,
it is stated:
"d. Extra services. In the absence of a statute providing a definite rule fixing the amount of the trustee's compensation, a trustee who renders professional or other services not usually rendered by trustees in the administration of the trust, as for example services as attorney or as real estate agent, may be awarded extra compensation for such services. In fixing the amount of such compensation the court will allow an amount which under all the circumstances it considers to represent the fair value of the services."
There are cases that seem to be contrary to the foregoing pronouncement. A case that reviews the division of authority and announces principles that seem to be applicable herein is Norris v. Bishop, 207 Ky. 621, 622, 269 S.W. 751, 752, wherein the court states:
"The reasonableness of the fee is not attacked, but it is insisted that no allowance whatever should have been made to the trustee for the services that he performed as attorney. Many of the courts take the position that an executor, administrator or trustee, who is also an attorney, is not entitled to extra compensation for the services which he renders as an attorney in the administration of the estate. [Citing cases.] And we have applied the same rule in the case of an assignee for the benefit *Page 220
of creditors. Kentucky National Bank v. Stone, 93 Ky. 623, 20 S.W. 1040. The reason for the rule is, that a trustee cannot be expected to exercise the same prudence and foresight in employing himself that he would exercise in the employment of another; and he should not be subjected to the temptation of being ignorant as trustee in order that he may consult himself as attorney and profit by his wisdom in that capacity. On the other hand, many of the courts hold that where a trustee renders professional services for the benefit of the estate he is entitled to compensation therefor. In such a case the rule is not to allow him the usual professional charges for such services, but a compensation fixed and determined according to what is fair and reasonable in view of all the circumstances. [Citing cases.] These cases do not recognize any right to compensation based on the contract of employment or agreements as to the amount of the fee, but proceed on the theory that the question of compensation is solely for the courts, and may be made in cases where legal proceedings necessary for the protection of the estate and such as a prudent man would institute in a matter affecting his individual interests, are undertaken and conducted in good faith. * * *
"In the case at bar there were three trustees who served without compensation, and no allowance was asked or granted for professional services rendered in the administration of the trust estate out of court. The compensation was allowed solely for services rendered in defending the suit to set aside the trust. The trustees would have been recreant to their duty if they had permitted judgment to go by default. In making defense, the trustees had no personal interests to subserve. The professional services were rendered not in behalf of the trustees, but in behalf of the beneficiaries of the trust, and between them and the trustees there was no conflict of interests. As the defense was undertaken and conducted in good faith, and the whole matter of compensation is one of the court, it seems to us that the case falls within the exception, and that there is no rule of public policy that forbids a reasonable allowance for the professional services rendered."
It seems to us that the situation above reviewed is analogous *Page 221
to that now before us. The Kentucky court recognized that its former decision in reference to an assignee for the benefit of creditors seemed adverse, but that case was distinguished and a fee was allowed. The reasons given for allowing a fee there are persuasive indeed for the allowance of one here. There, as here, the reasonableness of the fee was not attacked, the contention being that no fee whatever could be allowed. There, as here, the services rendered by the attorney were legal services which a layman could not render and were distinct from those of a fiduciary. There, as here, the fee was not fixed by contract but by the court and solely upon the basis of what was fair and reasonable in view of all the circumstances. There, as here, the services were not rendered for the personal benefit of the fiduciary but for the beneficiaries of the trust. No rule of public policy forbade such a fee. It would seem to follow that public policy does not forbid the allowance of a fee to Ontjes herein.
The Kentucky court indicated that it might not follow the rule announced in the Restatement by the American Law Institute above quoted. Even so, a fee was allowed where the circumstances were analogous to those now before us. When we add the authorities which support the position of the American Law Institute our decision does not seem difficult.
Both sides cite to us our decision in the case of In re Estate of Carmody, 163 Iowa 463, 467, 468, 145 N.W. 16, 17, wherein we state:
"But for the statute authorizing an allowance to an executor or administrator of compensation for extraordinary services actually rendered and necessary for the protection of the estate there would be ground for the contention that no allowance should be made for services rendered by executor or administrator, as an attorney, on the theory that a trustee can be permitted to make no profit out of his office and should not be placed in a position where his interest may be opposed to his duty. [Citing cases.] * * * Services exacting professional skill are not such as an executor or administrator ordinarily is capable of rendering and are uniformly ranked as extraordinary within the meaning of that term as used in the statute." *Page 222
The foregoing decision pertains to fiduciaries created by statute, whose rights and duties are defined by statute. Accordingly, the language is not controlling here. Also, there appears to be a clear suggestion that where, as here, there is no conflict of interest and the professional skill employed is not that which the fiduciary would be expected to have, the services would be the proper subject for compensation. Here Ontjes' services, for which he seeks compensation, were rendered for the benefit of the corporation. His professional services required skill other than such as a layman as instigating stockholder would posses. The services were not those to be expected from a stockholder. If the corporation were to distribute the final net recovery of $54,106.39 among the stockholders as a dividend, Ontjes' proportionate share would be approximately $1 per share, or a little more than $100. His services were clearly for the benefit of the corporation rather than for himself as a stockholder. The corporation has been benefited. The fund it is to receive should bear the burden of a reasonable compensation to Ontjes for the services he rendered in producing it.
[5] V. Finally, it is contended that Ontjes violated the proper concept of a lawyer's position and conduct and should not now be compensated for having done so. This contention has caused us some concern.
The basis for the first charge of unprofessional conduct is that stockholders who later joined Ontjes as plaintiffs did so at his solicitation. Considerable correspondence was introduced, written after the claim had been filed against the McNider estate, asking for contributions toward the expense of prosecuting the claim. One letter stated:
"A large number of stockholders contributed to the audit on the basis of 25¢ per share on their old stock. They sent in $711.87."
Another letter stated:
"The case is in behalf of the company and its stockholders and each stockholder has a right to join and participate in the recovery. In view of the above claim on the part of the defendants it is well for a very large number of stockholders to join for their own interest, and for moral effect in the case. *Page 223
"I am enclosing a blank for that purpose. Quite a large number of stockholders have joined already. The case involves about $50.00 per share on the old stock.
"As stated in a previous letter, there will be no attorneys' fees unless recovery is made and in such event the court will fix a reasonable fee for the stockholders' attorneys to be paid out of the recovery.
"I feel very confident of a favorable result."
In the early case of Boardman Brown v. Thompson, 25 Iowa 487, in an elaborate opinion by Judge Wright, this court held that a contract of an attorney that produced champerty and maintenance would be declared void as against public policy. See, also, Cochran v. Zachery, 137 Iowa 585, 591, 115 N.W. 486, 16 L.R.A., N.S., 235, 126 Am. St. Rep. 307, 15 Ann. Cas. 297. However, we have held that only a party to the contract can challenge it as champertous. Vimont v. Chicago N.W. Ry. Co., 69 Iowa 296, 22 N.W. 906, 28 N.W. 612. Here there was no contract for attorney's fees and could be none. The solicitation related only to costs and pertained to an action then pending. A somewhat similar situation, where there was also a contract for an attorney's fee, was held not to be champertous. State ex rel. Gibson v. American Bonding Co., 212 Iowa 1052, 1061, 237 N.W. 360. We do not think that the letters of Ontjes to the stockholders were sufficient to forfeit his right to an attorney's fee or expenses herein.
The other claim of misconduct is based upon the fact that Ontjes knew he was to be a material witness and would give testimony, did in fact testify at each hearing in court, and still continued to be the most active advocate in the case. We have held repeatedly that when a lawyer is also a material witness in litigation he should withdraw from its prosecution or defense. Alger v. Merritt, 16 Iowa 121, 128, 129; Flood v. Bollmeier, Iowa, 138 N.W. 1102, 1104; Stickles v. Townsend,171 Iowa 697, 699, 154 N.W. 307. The criticism herein is well taken. Often the fact that the lawyer is a witness is used as ground for discrediting his testimony. Except in a case of merely formal testimony or in an extreme case where, through surprise, the urgency of the client's interests demands such conduct, the practice has been *Page 224
sharply criticized. We do not wish to appear to condone it here. However, the weight or credibility of Ontjes' testimony is not involved herein. Were the question of the amount of his fee before us, we might be disposed to consider such conduct in fixing the fee. But the parties stipulated, before the appeal was taken, and the only issue presented to us has been the single one whether Ontjes might be awarded anything at all. With the question thus limited, we are unwilling to make this conduct the basis for forfeiture of all right to compensation.
Ontjes, as appellee, has filed herein a 392-page amendment to appellant's abstract of the record and certifies that the expense of same was $347.80. Appellant has moved to strike the amendment because it is not material to the narrow issue presented by the appeal, and, as alternative relief, asks that appellee be charged with the expense thereof. The memorandum opinion of the trial court, contained in the amendment, has been helpful. Little, if any, of the rest of the amendment was necessary. It has been a burden to the record because of the limited issue before us. The motion to strike is overruled, but, as alternative relief, only $50 of the cost of such amendment will be taxed in favor of appellee. The balance of the cost of such amendment is disallowed and appellee must bear the same.
By reason of the foregoing, the order appealed from is — Affirmed.
MULRONEY, C.J., and HALE, GARFIELD, WENNERSTRUM, MANTZ, SMITH, and OLIVER, JJ., concur.
BLISS, J., takes no part. *Page 225 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430164/ | Appellee lived on a farm in the Independent School District of Tama. He had three daughters, aged twelve, eleven, and nine years, respectively, who attended elementary school in said district. His dwelling was situated on a graveled highway and was two and eight-tenths miles from said schoolhouse, measured on the public highway by the most practicable *Page 333
route. From the school said route runs west on Highway 30, one and nine-tenths miles, thence north on the graveled highway nine-tenths mile to appellee's dwelling. Prior to the school term which commenced in September 1943, appellee's children had been regularly transported over this route back and forth between their home and the school in a motor school bus owned and operated by one Weaver, under contract with appellant school board.
The school-bus main trunk route was along Highway 30 but the route included several side trips to the homes of appellee and others which were situated upon highways intersecting Highway 30. Beginning with September 1943, the side trips upon intersecting highways were eliminated and the route was limited to the former main trunk route. Thereafter the bus picked up and discharged appellee's children at the intersection of Highway 30 and the highway upon which they lived. This required them to use other means to travel the nine-tenths mile between their home and the bus stop.
Thereupon appellee instituted this action in mandamus for an order commanding appellants to provide transportation for said children to and from their residence and the school. Appellants pleaded that they had eliminated the side trips in the exercise of their discretion, as a war-emergency measure, to save rubber tires, gasoline, and school-bus equipment, and that, under the circumstances, the transportation furnished was adequate. They also alleged such action was taken in compliance with requirements of the Office of Defense Transportation and the State Department of Public Instruction, and that it was for the duration of the war only. Upon trial the court ordered appellants to arrange for transportation for said children to and from the public highway in front of their home and in front of the school building.
[1] I. Section 4233.4, Code of 1939, provides, in part:
"When children enrolled in an elementary school other than in a consolidated district live two and one-half miles or more from the school in their district or subdistrict * * * the board shall arrange with any person outside the board for the transportation of such children to and from school."
Code section 4233.5 states: *Page 334
"Distance — how measured. Distance to school shall in all cases be measured on the public highway only and by the most practicable route, starting on the roadway opposite the private entrance to the residence of the pupil and ending on the roadway opposite the entrance to the school grounds."
The provision that the board shall arrange for the transportation of such children to and from school is mandatory. This has been pointed out in previous decisions and is not disputed by appellants. Riecks v. Independent Sch. Dist.,219 Iowa 101, 257 N.W. 546; Bruggeman v. Independent Sch. Dist.,227 Iowa 661, 668, 289 N.W. 5. But the statute has not been interpreted with particular reference to the language "transportation * * * to and from school."
The purpose of the statute is to afford children living two and one-half miles or more from school substantially the same educational advantages as those living nearer. However, we do not think it should be strictly construed as requiring in all cases that a school bus stop at a point in the highway in front of the home of each child to permit him to enter or leave the bus. Within reasonable limits, and without unreasonable discrimination, the board may determine the route and the times and places for bus stops to receive or discharge passengers. The statute should be given a reasonable and practical construction so that, without unnecessary burden to the school district, all children entitled thereto may be furnished transportation as nearly complete as is reasonably possible.
This is substantially the position taken by other courts in considering analogous provisions in their laws. In State ex rel. Brand v. Mostad, 28 N.D. 244, 248, 148 N.W. 831, 832, the court said:
"* * * the only questions to be determined are whether the language * * * which provides for transportation `to and from school,' is to be strictly construed so that in all cases children must be actually conveyed from their house doors to the doors of the schoolhouse, or whether a reasonable discretion in such matters has been left with the school board. Also, whether, if such discretion exists, there was an abuse thereof in the case at bar. *Page 335
"We are firmly of the opinion that the legislative intention was that actual transportation from the door of the home to the door of the schoolhouse should only be furnished as far as the same was reasonably practicable. In other words, that, though the statute is mandatory and cannot be avoided, it should be construed as if passed by reasonable men, and should be interpreted according to its spirit rather than according to its letter. * * *
"It must have been the intention of the legislature that some reasonable discretion should be exercised in the matter, and that, though conveyance from the house to the schoolhouse should be furnished as nearly as is reasonably possible, the letter of the statute should not be made the pretext for absurd and unreasonable exactions."
There is a like holding in Lyle v. State ex rel. Smith,172 Ind. 502, 88 N.E. 850. State ex rel. Stewart v. Miller,193 Ind. 492, 141 N.E. 60, follows Lyle v. Smith, supra, and cites State ex rel. Brand v. Mostad, supra, 28 N.D. 244, 148 N.W. 831, and other cases, with the observation that no authorities to the contrary have been called to the attention of the court. Walters v. State, 212 Wis. 132, 248 N.W. 777, also follows the rule and cites the foregoing cases. See, also, annotations in 63 A.L.R. 423, 118 A.L.R. 816, 146 A.L.R. 633. Although the cited decisions from North Dakota and Indiana involve transportation by horse-drawn school wagons, and some parts of the discussion are from that standpoint, the legal principles upon which those decisions are based are applicable to transportation by motor school bus.
[2] II. Under powers given the President by the Second War Powers Act of 1942, 50 U.S.C. App., section 633, and by the President delegated to the Office of Defense Transportation, said office issued general order ODT 21, which, among other things, governs rubber-tired commercial vehicles, including school busses, and forbids their operation except under a Certificate of War Necessity.
Such certificate requires compliance with various requirements and policies calculated to save rubber and other materials, and limits the gasoline ration. One policy is to practically eliminate travel over branch routes to pick up or discharge students *Page 336
who live less than one and one-half miles from a school-bus trunk route. Various decisions sustain the validity of the War Powers Act and procedure such as that above outlined. See Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892; L.P. Steuart Bro. v. Bowles, 322 U.S. 398, 64 S. Ct. 1097,88 L. Ed. 1350.
The State Department of Education, in co-operation with representatives of the Office of Defense Transportation, arranged school-bus routes throughout the state which would comply with the requirements of the Office of Defense Transportation, and recommended such routes to school boards. The route recommended to appellants was what had been the main trunk route. Appellants considered the foregoing matters, decided to eliminate the side trips from the route, as recommended, and in September 1943, made a contract with Weaver which embodied this change. Appellee concedes this was not an attempt to discriminate against him.
Although the regulations of the Office of Defense Transportation did not supersede or modify the statutory duties of the school board, such regulations did prevent the operator of a school bus from securing a Certificate of War Necessity to operate over other highways than the main trunk route. Hence, it was no longer reasonably possible for the board to arrange for such transportation for appellee's children for the nine-tenths mile between their home and Highway 30. There is no suggestion that any other method of transportation would have been practicable.
It appears from the record that the former plan of operation of the school bus was practicable under the conditions then existing and would still be feasible were it not for the war and the resulting emergency legislation and regulations. However, we are satisfied that, under the conditions shown by the record, it was not reasonably practicable for the school board to arrange for the transportation of appellee's children between their home and the school-bus trunk route on Highway 30.
Hence, we conclude the judgment commanding the board so to do was erroneous. — Reversed.
All JUSTICES concur. *Page 337 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430165/ | J.H. Montgomery, the plaintiff and appellant, *Page 279
entered into a written contract, by the terms of which he agreed to convey to A.B. Pond approximately 279.32 acres of land in Marshall County. The date of this written undertaking was July 16, 1915, and the consideration named therein was $46,858.53. All the principal, under the stipulation, was to be paid by the vendee to the vendor March 1, 1926. Pond, the vendee, sold his interest, and such transferee, in turn, resold, until finally the equity in approximately 120 acres of the tract was purchased by the appellee Dr. F.X. Beller, and the remaining 159.32 acres were bought by the appellee M.L. Mundy. That transaction was not accomplished by the assignment of the original contract between Montgomery and Pond, but was effected by an independent written compact, under the terms of which each respective vendee agreed to buy, not the entire acreage, but rather, the respective portions above suggested. In doing this, the individual transferee did not undertake to pay the total consideration of $46,858.53, or any part thereof, named in the original Montgomery-Pond agreement, but rather, the obligations created by the new transactions were such in amount as were definitely designated in the said specific writings which, as above indicated, were entered into separately by Beller and Mundy for the respective parcels of land before named. However, in the aggregate, these distinct sums approximated the original purchase price named in the Montgomery-Pond contract.
Immediately after acquiring these interests, Beller and Mundy took possession of their respective premises. This was nearly six years before March 1, 1926. During that period, appellant, J.H. Montgomery, was represented by his son, Willard Montgomery, and by the Iowa Savings Bank, of Marshalltown. Interest, therefore, was paid by appellee Beller each year, either to the appellant or his said agents in his behalf. Not only was this true, but, in addition thereto, appellee Beller paid the taxes during this interim on the 120 acres aforesaid. Later, alterations and improvements were made upon the farm. Appellant, during this time, made no objection to appellee Beller's so occupying the premises and paying the interest and taxes in the manner and way just related. Protestation was made by appellant because appellee Beller cut down certain trees, but the complaint at that time was not because appellee had possession of a *Page 280
portion of the premises, but rather, because appellant did not desire the trees removed.
Finally, on or about March 3, 1926, after the Montgomery-Pond contract became due, there was a meeting called by appellant, and accordingly it was held. At such conference were, among others, appellant and the appellees Beller and Mundy. Admittedly, the purpose of this gathering was, as declared by the witnesses, to accomplish a settlement between appellant and the appellees Beller and Mundy, and if such was not brought about then, appellant would at once commence the necessary procedure to declare a forfeiture of the original Montgomery-Pond contract. A conflict arises concerning the result of the attempted adjustment of the differences. Beller contends that it was there understood between him and appellant that he was to pay the interest on his portion of the indebtedness to March 1, 1926, and $1,500 on the principal. The remaining $21,500 of this part of the consideration was to be evidenced by a promissory note, due in five years, secured by a mortgage upon the 120 acres. Mundy insists that he was to have a separate contract with appellant for the 160 acres for the sum of $23,347. These claims are denied by appellant.
So, on or about July 6, 1926, appellant caused to be served upon A.B. Pond and appellees Beller, Mundy, and others, a notice of forfeiture for the non-performance of the Montgomery-Pond agreement. Following this, on October 8, 1926, the present proceedings were brought in the district court of Marshall County, to quiet the title to the entire land in Montgomery, and complete forfeiture of the said original contract with Pond. Additional redress in the nature of a foreclosure of the contract was prayed in the alternative.
As a result of the trial, the forfeiture was denied, and appellant's alternate prayer for foreclosure was granted, so far as the appellee Mundy and his 160 acres of said realty are concerned. Auxiliary to this relief, the court appointed appellant's son, Willard, receiver, to collect the rents and profits during the year of redemption. On the other hand, both the demands for a forfeiture and foreclosure were denied appellant in reference to the 120 acres purchased by the appellee Beller. Furthermore, the trial court found that there was a contract between appellee Beller and appellant, to the effect that, upon the payment of the *Page 281
interest due March 1, 1926, and $1,500 on the principal, the former was to receive a deed for the premises, and the latter was thereupon to be given a note and mortgage, as before described. Pond, the original vendee, disclaims any interest in the controversy, and is not given further consideration here.
Whereupon, appellant demands a reversal.
I. Was appellant entitled to a forfeiture? We think not. Section 12390 of the 1924 Code provides:
"Such forfeiture and cancellation [of a real estate contract] shall be initiated by the vendor * * * by serving or causing to be served on the vendee * * * and on the party in possession of said real estate, a written notice which shall: 1. * * * accurately describe the real estate covered thereby. * * *"
Description of the real estate contained in appellant's notice of forfeiture was not accurate, because it omitted 40 acres of the premises. Consequently, the result of this "notice" was to ask the vendees to pay a consideration, not for 1. VENDOR AND the tract of land purchased, but a different PURCHASER: parcel, containing 40 acres less. By thus contract: eliminating a portion of the tract, appellant forfeiture: could not compel appellees to pay the original erroneous purchase price. Declaration of forfeiture was description intended for the entire farm, not for some of land. lesser portion. Hence appellant is in the position of seeking a forfeiture of a contract on 279.32 acres, while the notice therefor included only 239.32. Such omission is fatal to appellant's cause. Even under a previous Code, when the requirement was not that the real estate be accurately described, it was held by this court that an erroneous description barred a forfeiture. Wolke v. Watts Co., 125 Iowa 321; Lieuwen v. Blau,184 Iowa 327.
Within the purview of the statute above quoted, requiring an "accurate description," the omission amounts to an "erroneous" description of the land. Appellees, or their grantors, did not agree to purchase the land described in the appellant's notice of forfeiture, but rather, they undertook and intended to buy property the necessary description of which would include the additional 40 acres. Wolke v. Watts Co., supra, declares:
"Proceedings to effect the forfeiture of a right, as said, are to be strictly pursued, and for this reason it is unnecessary to *Page 282
indulge in speculation as to whether plaintiff must have understood from the notice that the land purchased by him from Watts Co. was intended. Oral advice might have furnished information, and yet no one would contend it would have been sufficient notice."
Clearly, then, in view of the express statute demanding an "accurate description," there can be no forfeiture in this case, because the notice erroneously described the realty. Therefore, the district court properly refused the forfeiture as to both appellees Beller and Mundy.
Resultantly, the foreclosure of the contract as against Mundy, so far as that compact relates to the 160 acres, was properly granted, because he did not pay either taxes, principal, or interest, as required by the sale agreement. 2. VENDOR AND There then remains the single question as to PURCHASER: whether or not appellant was also entitled to a contract: foreclosure of the written undertaking against foreclosure. appellee Beller. If there was no contract of novation or substitution, as Beller claims, there should be a foreclosure of the original Montgomery-Pond agreement, which covers the 120 acres here involved. We do not here decide whether or not the contract, so far as it related to that portion of the real estate correctly described, could have been forfeited. Reservation of that question is made, because the point is not presented.
II. Material at this juncture is a discussion of the facts as they relate to the purported novation by the substitution of a new undertaking between appellee Beller and appellant. On this phase of the controversy, appellee Beller has 3. NOVATION: the burden of proof. To meet this obligation, he evidence: produced the following evidence. Positive sufficiency. testimony was given by this appellee at the hearing to the effect that he and appellant expressly agreed, on or about March 3, 1926, to the succeeding propositions: First, that appellee should fully liquidate all the interest accruing up to March 1, 1926, on his portion of the said Montgomery-Pond contract, and immediately pay $1,500 on the principal thereof; second, that appellant would then make, execute, and deliver to appellee a warranty deed for the 120 acres; and third, that thereupon appellee was to make a note, payable to appellant, for the sum of $21,500, maturing five years thereafter, which evidence of indebtedness *Page 283
must be secured by a first mortgage on the said 120 acres. Corroborating these statements are the equally positive assertions of the appellee Mundy to the same effect. Substantiation for the testimony of these two witnesses is afforded by the fact that, for at least six years, appellee Beller had possession of this 120 acres. He paid the taxes thereon, and satisfied the interest as it matured on that particular portion of the indebtedness. No objection to this was made by appellant at any time, but rather, he accepted the benefits thus derived from appellee's tax and interest payments, notwithstanding the fact that it amounted to a practical division of the Montgomery-Pond agreement. More than that, it is to be remembered that the conciliatory conference before mentioned was for the purpose of effecting a settlement, and if such was not accomplished, then forfeiture proceedings would be commenced. With this knowledge vividly in mind, would appellee pay $1,182.50 in interest and $1,500 on the principal on or about March 3, 1926, if he knew, when so doing, that there had been no settlement, and that a forfeiture was imminent? Certainly not, because the result thereof amounted to a willful and needless sacrifice, in such event, of $2,682.50. Many other circumstances appear which support appellees' contention.
Rebuttal of the foregoing was offered by the testimony of appellant, his son, Willard, his daughter, Mrs. Kate Moller, and his attorney, F.E. Northup. (Parenthetically, it should be noted here that appellant is a man 87 years old, and the members of his family suggest that he is forgetful, and the record of his own testimony, as disclosed by the abstract, indicates this fact. Because of Mr. Montgomery's feeble condition, business transactions were conducted for him many times by his son, Willard.) Of those witnesses, appellant and his son, Willard, asserted that the alleged novation was not consummated, that concerning the terms thereof a conclusion was never reached, and that refusal was always made to a division of the Montgomery-Pond agreement. Mrs. Kate Moller, the daughter, who was not present at the said arbitration gathering, told of the conversation which she overheard in her home between appellant and appellee Beller. Her testimony in reference to that is:
"I heard him [appellee Beller] ask my father if he wouldn't *Page 284
give him five years' time. Father said `no,' he would not, but said, `I will give you three, provided the children are willing.'"
Moreover, Mr. Northup, appellant's attorney, while on the witness stand, gave his impressions that a final agreement was not reached in reference to the novation, at the conference aforesaid. While testifying, this witness said:
"It was never agreed, according to my best recollection, that Mr. Beller should receive a deed and give back a mortgage in any different sum."
A positive statement in this regard, however, is not made. Also, there are other incidents, facts, and circumstances which tend to explain the evidence submitted on behalf of appellant and harmonize it with the testimony presented by appellee Beller, among which is the fact that, notwithstanding appellant's statements to the contrary, he must have consented to a division of the Montgomery-Pond undertaking, because more than one of his own witnesses suggested that the negotiations proceeded to the point of debate as to whether the duration of the mortgage was to be three or five years.
Again, appellant must have agreed to a so-called "splitting" of the Montgomery-Pond agreement under certain circumstances; otherwise there would have been no need for the dispute between appellant and appellee Mundy concerning appellee Beller's obtaining the abstract for the purposes of the novation. Mundy finally agreed that Beller could have it. Part of the conversation, at least, in reference to the novation was not had in the presence of Mr. Northup, but at a time after the said conference in his office. Originally, the agreement seems to have been that appellee Beller was to pay appellant $1,000, rather than $1,500, on the principal. Nevertheless, at a subsequent meeting with Willard Montgomery, the son and agent of appellant, appellee Beller agreed to pay $1,500, and accordingly that sum was deposited in the bank for appellant, at the express consent and approval of the agent, Willard Montgomery. Appellant used this money. Afterwards, the agent, Willard Montgomery, told appellee Beller that the "jig is up," and the deal could not go through because Mundy was unable to meet his interest and taxes on the 160 acres, due to the fact that the *Page 285
Marshalltown State Bank was in the hands of a receiver. Beller then said:
"`Where do I come in? You know very well we made an agreement I was to get a deed, and your dad was to get a mortgage.' And he said [Willard Montgomery], `Yes, I know, but my dad won't acknowledge — he won't listen to it.' I told him [the agent, Willard Montgomery] I had made the payment of $1,500, and he just threw up his hands, and made no answer."
It seems, too, that the Montgomerys consulted Mr. Northup, their attorney, in reference to the acceptance of this $1,500, and were told to make application of it on the general indebtedness. One more fact is significant, and that is that the forfeiture notice was not served at least until July following the March in which the arbitration conference was held. If, as appellant and his witnesses stated, the result of that meeting had but two possibilities, — the one of settlement, and the other of forfeiture, — it has not been satisfactorily explained in the record why the forfeiture proceeding was so long delayed, in view of the fact that, according to appellant's version, no settlement was reached.
Not all the matters and circumstances have been related. Further details will unduly extend this opinion. However, a careful study of the entire record constrains us to conclude, as it did the trial court, that appellee Beller, by a preponderance of the evidence, substantiated the alleged novation; and under his answer, he is entitled to have the new contract performed by appellant.
III. Yet appellant argues that, even if that be true, nevertheless there must be a reversal because the evidence offered by appellee to prove the novation is inadmissible, for the reason that it sought to change or vary the terms of the original Montgomery-Pond agreement.
Manifestly, in this appellant is wrong. Pond, it is to be remembered, makes no objection to the novation, but rather, acquiesces therein. Clearly, the idea and 4. EVIDENCE: intention of the appellee were not to contradict parol as the writing, but rather, to sustain it, by affecting showing a performance thereof, — or, in other writings: words, a novation. That is permissible. Griffey
proof of v. Lubben, 196 Iowa 465; Walker v. Camp, 63 Iowa novation. 627; Guthrie Ice Co. v. Selby, 166 Iowa 474;Goodman *Page 286 Mfg. Co. v. Mammoth Vein Coal Co., 185 Iowa 253; Price TeeplePiano Co. v. Sheenan, 150 Iowa 189; Fleming Bros. v. Linder
(Iowa), 109 N.W. 771 (not officially reported); 22 Corpus Juris 1273, Section 1692. See, also, Bond v. O'Donnell, 205 Iowa 902. Apt language contained in Griffey v. Lubben, supra, on page 468 is:
"This is only another manner of stating the fundamental proposition that, so long as any contract, written or oral, remains executory, it is an essential attribute of the right of persons to do what they will with their own (so long as their acts do not prejudice the rights of others); that the parties thereto may, by mutual consent, change, alter, or amend its terms, or may abandon it altogether; and that, such agreement once made, it affords a complete defense by either to any assertion by the other of any right based upon the original unperformed contract. It makes little difference whether a defense of this character be classed as waiver or estoppel, or be given any other technical label, it operates, when pleaded and proved, to relieve from liability the party sought to be charged upon the alleged contract."
Likewise, Goodman Mfg. Co. v. Mammoth Vein Coal Co., supra, consistently states:
"The appellant contends that the parol evidence of the agreement was incompetent, for that it tended to vary the terms of a written instrument. It does not have that effect. It merely tended to prove a subsequent independent agreement."
IV. Complaint is further interposed by appellant to the sufficiency of the novation. Incomplete establishment thereof is urged, because there was no consideration to support it. The appellant's theory at this juncture is that 5. NOVATION: Beller was already obligated to discharge the considera- Montgomery-Pond undertaking, and therefore his tion: agreement to pay, and the actual payment of sufficiency. $1,500 after that indebtedness was due, amounted to no more than a part performance of a legal duty. Obviously, this position is untenable. Primarily, this is so because appellee Beller never agreed to satisfy the Montgomery-Pond compact. Assignment thereof was not made to Beller, but rather, he obtained whatever equities *Page 287
he received through an independent agreement. While it is true that his interests therein were subject to the said Montgomery-Pond agreement, yet appellee did not assume or undertake to perform that instrument. Therefore, it cannot be said that, in the payment of the $1,500, he was only doing that which he was previously bound to do. Consideration was furnished when appellant consented to divide the so-called Montgomery-Pond undertaking, and deed the 120 acres to appellee, when the latter, in turn, obligated himself to pay the delinquent interest, advance the $1,500 in cash on the principal, bind himself by the execution of the $21,500 note, and permit the land to be security therefor. This involved the consent of Pond and his grantees, and their relinquishment of the contractual rights under the old Montgomery-Pond agreement through the various assignments and subagreements, as related in the preliminary facts above. A promise may be a consideration for another promise, and the surrender of a right or agreement by a third person may support a contract between two others. So, too, the cancellation of one "contract or agreement" may supply consideration for entering into a new one. Wickham Burton Coal Co. v. Farmers Lbr. Co.,189 Iowa 1183; Commercial Nat. Bank v. May, 187 Iowa 888; City ofFt. Madison v. Moore, 109 Iowa 476; Strahn v. Johnson, 197 Iowa 1324; LeGrand Quarry Co. v. Reichard, 40 Iowa 161. We assume, without deciding, that the contract of novation is not unprovable by parol evidence, because of the statute of frauds. That issue was not presented, and therefore not discussed.
Accordingly, the judgment and decree of the district court should be, and hereby is, affirmed; and if appellee Beller shall pay to the appellant all interest due under the terms of the $21,500 note, and in addition thereto shall deliver to the latter the said note and mortgage tendered and offered in evidence at the trial below, then the appellant shall properly execute and deliver to the said appellee the warranty deed of himself and wife, with the ordinary form of warranty and covenant, conveying to the latter the said 120 acres. Payment of said interest and the delivery of the note and mortgage, as well as the deed, shall be made forthwith, and, if appellant fails to execute and deliver said deed within ten days after the filing of a procedendo from the clerk of this court with the clerk of the district court of *Page 288
Marshall County, the said clerk of the district court is hereby appointed as a special commissioner to execute the deed for said real estate on behalf of appellant and his wife, and make delivery thereof to the appellee Beller. Such deed, if and when thus executed by the clerk, shall be presented to the said district court for approval and delivery to said appellee. —Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430168/ | The Boards of Supervisors of Polk and Story counties on June 25, 1920, established a drainage district known as Polk-Story No. 4, extending into the two counties across their border line. The commissioners and engineer reported that the total acreage in the district was 1,078.88 acres and estimated the cost at $37,893, which later proved to be too low an estimate. Contracts for material and labor were let and the commissioners reported a schedule of assessments for benefits for the lands in both counties totaling $44,668.40, of which the share for Polk county was $37,717.50. On May 22, 1922, the Polk County Board of Supervisors passed a resolution which recited that the share of Polk county lands in the total assessment should be the above sum of $37,717.50, and that there had been paid into the treasury of the drainage district, or otherwise provided for, $14,282.54, leaving then unpaid and not provided for an assessment in the sum of $23,434.96, none of which was in litigation, and no one item of which was $20 or less in amount. Such resolution also provided for the issuance of $23,300 in drainage bonds against the assessment of $23,434.96, which bonds were to be paid over a period of ten years to retire the bonds, Nos. 1 to 24 inclusive. The bonds were issued and sold, and, so far as the records show, the proceeds applied on the cost of the improvement. The bonds were all paid except two, Nos. 22 and 23, for $1,000 each, with $210 of unpaid interest coupons and the interest on the bonds at six per cent from maturity on November 1, 1932.
The original assessments levied against the Polk county lands of $37,717.50 were all paid with interest. The two bonds not having been paid, the Board of Supervisors of Polk county, *Page 619
on October 28, 1942, adopted a resolution in which they recited that two additional assessments had been adopted by the joint meeting of the Boards of Supervisors of Polk and Story counties, one for four and one-half per cent on December 17, 1925, and one for four per cent on April 30, 1930, which assessments Story county had assessed and collected, but that the same had never been spread or collected in Polk county. The resolution recited further that on June 15, 1931, the Polk county board had authorized the spreading of the assessments of four and one-half percent and four per cent, respectively, but the same was never done by the auditor of Polk county; that bonds Nos. 22 and 23, which became due on November 1, 1932, were unpaid and also the interest thereon was delinquent; and directed that the assessments theretofore ordered be spread in order to pay said bonds and interest, making a total reassessment to be spread against the benefited property of eight and one-half per cent. The resolution further extended the maturity date on the two outstanding bonds to November 1, 1943. After the resolution was adopted and the reassessments made and spread upon the land, this action was brought to enjoin the collection of such assessments. It is thus apparent that there have been levied, assessed, and collected against the property owners in the district in Story county reassessments totaling eight and one-half per cent, but no corresponding assessment has ever been collected in Polk county.
[1] The proposition relied upon by appellants for reversal, as stated by them, is that the assessments having been greater than the amount of the bonds issued, and the assessments having all been paid, no new assessments may be made to pay such bonds. There is no question but that assessments of this kind must be used solely for the purpose of payment of the improvement and cannot be diverted to other purposes. It is also true that the land within a district cannot be assessed for any greater amount than is necessary to pay the cost of such improvement. Section 7505, Code of 1939, and previous Codes. The only reason for the levy of additional assessments is in case the cost, when finally determined, is greater than the original estimated expense or is for repairs. When such condition occurs, then the board of supervisors is required to levy and collect additional assessments against the benefited lands. Sections 7479 and 7509, Code of *Page 620
1939, which sections are the same as appeared in previous Codes, both provide for such a contingency, the former section reading:
"If the first assessment made by the board for the original cost or for repairs of any improvement is insufficient, the board shall make an additional assessment and levy in the same ratio as the first for either purpose, payable at the next taxpaying period after such indebtedness is incurred subject, however, to the provisions of section 7484 [which provides for payment by installments]."
Section 7509 provides:
"If any levy of assessments is not sufficient to meet the interest and principal of outstanding bonds, additional assessments may be made on the same classification as the previous ones. Additional bond issues may be made when necessary to complete full payment for improvements, by the same proceedings as previous issues."
Appellants argue that under sections 7505 to 7509 of the Code of 1939, which were, in effect, the same as the Supplement to the Code of 1913, and subsequent Codes, the issuance of bonds in excess of the amount of assessments made and levied is prohibited, and that section 7509 as now interpreted by the court means that if the assessments were not large enough when made to equal the amount of bonds issued, new assessments may be made, but if the assessments were sufficient, were large enough, were greater than the amount of the bonds, and if paid by the landowners, the landowners may not be assessed again to pay these bonds, and that such is really the only question in the case.
Hartz v. Truckenmiller, 228 Iowa 819, 293 N.W. 568, cited by appellants, does not support that theory. There the original levy and a subsequent ten per cent levy, not disputed, were sufficient to pay the bonds and the cost of improvement, but a loss was incurred by failure to collect certain assessments. The proceeds of the tax, if collected, would have paid the cost. It does not hold that the basis of the reassessment is the amount of the bonds rather than the cost of the improvement. Western Bohemian Frat. Assn. v. Barrett, 223 Iowa 932, 934, 274 N.W. 55, 56, also cited by appellants, does not apply here. In that case *Page 621
it is said: "That the assessments were sufficient is not even questionable." In neither of these cases is there any showing that the issue of bonds was insufficient to pay the cost of the project. In Whitfield v. Grimes, 229 Iowa 309, 294 N.W. 346, appellants interpret our holding to have been that if the assessment was large enough in the beginning to cover the bonds, no new assessment may be made. Such was not our holding. We have recently, in the second appeal in the Whitfield case, Whitfield v. Sears, 233 Iowa 887, 892, 10 N.W.2d 564, 567, reviewed a situation in most respects similar to the one in the case at bar. Justice Smith, in his opinion, states:
"We know of no equitable principle that would absolve defendants from levying additional assessments if required underCode sections 7509 and 7479. No cases are cited by defendants enunciating such principle. We have held that the statute reserves to the board of supervisors at all times the power to impose necessary additional assessments, that the burden of this contingency necessarily rests upon every landowner subject to assessment in the district * * *."
The opinion in that case concludes that there was an initial discrepancy in the amount of the original assessment and the cost of the improvement and order was made for writ of mandamus. This case distinguishes Hartz v. Truckenmiller and Western Bohemian Frat. Assn. v. Barrett, both supra, as cases in which the shortage of funds was due to subsequent diversion of the proceeds or failure to collect certain assessments.
[2] II. Under the quoted sections of the Code, if the first assessment is insufficient to pay the cost of the improvement the deficiency may be made up by subsequent assessments. Such is the requirement of the statutes and our previous cases. So what is left to determine is, Were the original levy and assessment sufficient to pay the cost of the improvement? On the trial in the district court there was introduced in evidence a complete record of the district with the receipts and disbursements. In addition there were offered in evidence the reports of the examination made by the checkers from the state auditor's office, showing in detail all such receipts and disbursements, the first of such reports extending from the beginning of the drainage proceedings *Page 622
to January 1, 1929, and the second extending from January 1, 1929, to February 20, 1942. The facts shown by these reports were not contradicted. The balance sheet of assets and liabilities in the second report shows assets of $162.38 in Story county, with no liabilities; and liabilities of $4,166.18 in Polk county, with no assets. The second report sets out the facts as we have heretofore detailed them regarding the assessments levied and the failure to collect such assessments in Polk county, and states that had the eight and one-half per cent total reassessment in Polk county been spread and collected the amount realized would have been sufficient to retire the outstanding bonds when they matured. With this conclusion we agree.
[3] III. As in the second Whitfield case, supra, the difficulty here arises from the fact that there was an initial discrepancy between the amount of the assessment and the bonds issued thereunder and the total cost of the improvement. As we read the record, it is not shown that the amounts realized from the sale of the bonds, and the reassessments for the payment of such bonds, were not properly applied on such payments. No showing is made as to any misapplication of funds. We have examined the list of warrants issued and they appear to have been thus applied. The discrepancy and the cause thereof are indicated on page 2 in the first report of the checker for the state auditor, filed in the office of the county auditor of Polk county on September 30, 1929:
"COST OF DRAIN — Warrants have been issued for the construction of the Drain amounting to $43,323.07 and for repairs amounting to $70.81, making a total of $43,393.88. Interest has been paid on warrants totaling $3,611.51. Interest on bonds paid and yet to be paid amount to $10,436.00. Total cost of the Drain amounts to $57,441.39."
These findings of the accountants are borne out by the reports. The figures are self-explanatory. In making the estimate of cost it is indicated that interest was not taken into consideration — especially interest on warrants — and that the estimated cost to Polk county and the assessments and bond issue based thereon were too small. If the original levy was too small, as appears from the record, it was the duty of Polk county to correct *Page 623
the erroneous estimate by making a proper reassessment to provide for the additional cost and the bonds issued on the basis of the unpaid installments of such cost, as was done in Story county.
[4] IV. Appellants devote some time in their reply argument to the statute of limitations. This question was not touched upon nor discussed in their first brief and argument. It was merely mentioned, but not argued, in appellees' brief and argument as a part of the history of the action. Appellants in their opening brief and argument state as their objection that the assessments having been greater than the amount of the bonds issued, and the assessments having all been paid, no new assessment may be made to pay such bonds. The question of limitations, not having been raised nor argued in appellants' opening brief, need not here be considered. Cohen v. Hayden, 180 Iowa 232, 245, 157 N.W. 217, 163 N.W. 238; Patton v. Lund, 114 Iowa 201, 206, 86 N.W. 296; and Lorimer v. Hutchinson Ice Cream Co., 216 Iowa 384, 249 N.W. 220. Such is the general rule. 4 C.J.S. 1914, section 1333, states:
"A point raised for the first time in the reply brief will not be considered by the appellate court." Citing, among other cases, Luckenbill v. Bates, 220 Iowa 871, 878, 263 N.W. 811, 103 A.L.R. 252; and Fisher v. McCarty, 197 Iowa 369, 371, 195 N.W. 608.
It is our conclusion, as hereinbefore set out, that the holders of bonds Nos. 22 and 23 are entitled to be paid, so far as the proposed levy and reassessment are concerned. Otherwise, the landowners in Story county would have paid a greater proportionate share of the cost of the improvement, and the appellants, although receiving corresponding benefits, would not be assessed in proportion. It would be inequitable that the bondholders would not be compensated for the benefits thus received. Holding, as we do, that the proceeds of these bonds were used in the cost of the improvement, we see no good reason why such cost should not be equitably collected from the owners of the property for whose benefit such expenditures were made. We hold that the district court was right in dismissing appellants' petition, and the ruling thereon should be, and is, affirmed. — Affirmed.
All JUSTICES concur. *Page 624 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033578/ | IN THE COURT OF APPEALS OF IOWA
No. 15-0855
Filed September 14, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEANDREW D. HARRIS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler (motion to suppress) and Kellyann M. Lekar (trial), Judges.
DeAndrew Harris appeals from his convictions and sentences for first-
degree robbery, first-degree burglary, and felon in possession of a firearm as an
habitual offender following a jury trial. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., Tabor, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
DOYLE, Presiding Judge.
DeAndrew Harris appeals from his convictions and sentences for first-
degree robbery, first-degree burglary, and felon in possession of a firearm as an
habitual offender following a jury trial. He asserts the district court erred in
admitting certain evidence and the jury’s verdict was not supported by substantial
evidence. We affirm.
I. Background Facts and Proceedings.
“Viewing the trial evidence in the light most favorable to the jury’s guilty
verdicts,” State v. Romer, 832 N.W.2d 169, 172-73 (Iowa 2013), the jury could
have found the following facts: In the late hours of August 19, 2012, Namho Kye
reported to law enforcement that five black males had just robbed him and his
four friends at his apartment. Kye told the responding police officer that he
and his friends were just sitting around playing cards and video
games and listening to music and . . . things, and he said he had
his wooden door open to the apartment and so there was just a
screen door, and he said the screen door opened and a male
walked through with a shotgun, a long gun, with a wooden stock on
it. They could describe it, and . . . they said that that male was
shorter, stockier, had a short Afro, in his twenties maybe. And then
he said the next person through that he saw was a heavier set male
with really shorthair, and then he described what he looked like,
and then he stated that the third guy through was a male with
dreads[1] that were very distinct because they had about one to two
inches of red dye on the end and he had . . . a silver handgun.
1
“Dreads” or “dreadlocks” refer to a hairstyle in which sections of hair are “permanently
locked together and cannot be unlocked without cutting.” Shauntae Brown White,
Releasing the Pursuit of Bouncin’ and Behavin’ Hair: Natural Hair as an Afrocentric
Feminist Aesthetic for Beauty, 1 Int’l J. Media & Cultural Pol. 295, 296 n.3 (2005). Such
hairstyles are “worn predominately (albeit not exclusively) by Blacks and do not require
the individual to alter his or her natural hair texture through the use of chemical agents.”
Devin D. Collier, Don’t Get It Twisted: Why Employer Hairstyle Prohibitions Are Racially
Discriminatory, 9 Hastings Race & Poverty L.J. 33, 34 n.2 (Winter 2012). Although the
term “dreadlocks” is pervasive in popular culture, it originates from the slave trade;
[w]hen Africans emerged from the slave ships after months spent in conditions adverse
to any personal hygiene, Whites would declare the matted hair that had grown out of
3
Within hours of the robbery, the five victims were separately shown photo
lineups created by an officer. Each lineup was comprised of six 4-by-5-inch
pictures that were printed in color on separate pages. The lineup that contained
Harris’s picture included the photos of five other African-American men whose
hair was worn in locks, none of whom were suspects. Four of the five victims
identified the picture of Harris—photo number four—as one of the intruders. The
one victim that did not identify Harris’s photo in the lineup did not identify anyone
in the lineup.
Harris was subsequently arrested and charged. Harris filed notice he was
presenting an alibi defense, naming Mico Lovelady as one of his alibi witnesses.
Lovelady was also suspected to be one of the five intruders along with Harris,
and four of the five victims had identified Lovelady as one of the intruders in a
different photo lineup.
Prior to trial, Harris filed a motion to suppress any statements by the
victims identifying Harris in the photo lineup. He asserted the photo lineup
containing his picture and the “procedure used in presenting the [lineup] to [the
victims] was suggestive and therefore, unreliable.” Specifically, he claimed the
photo of him used in the lineup showed color in his locks, unlike the other men’s
locks, which were uniformly black in color. The court denied the motion.
their kinky unattended locks to be ‘dreadful.’” Ayana D. Byrd & Lori L. Tharps, Hair
Story: Untangling the Roots of Black Hair in America 104-06 (2001). Because of this
negative connotation, “loc” or “lock” is preferred over the term “dreadlock.” See Angela
Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII,
98 Geo. L.J. 1079, 1081 n.2 (April 2010). Therefore, we will refer to this style throughout
the body of this opinion as “locks.”
4
The matter proceeded to trial in December 2014. By that time, Kye had
moved to South Korea. The State requested a reading of Kye’s deposition at the
trial because he was unavailable to testify, and Harris objected. The court found
Kye was unavailable as defined in Iowa Rule of Evidence 5.804 and that his
testimony given via deposition should be allowed to be read into the record.
Lovelady testified in Harris’s defense, stating he had been with Harris the
entire night of the robbery. He testified he was with Harris at Harris’s home, and
they left around 6:30 or 7:00 p.m. to go to a friend’s house. He testified they
stayed there until around 2 a.m. the next morning, and they then returned to
Harris’s home for the night. In rebuttal, the State called the officer involved in the
photo lineup containing Lovelady’s photo, who testified, over Harris’s objection,
that four of the five victims had identified Lovelady as one of the intruders in the
robbery.
The jury found Harris guilty as charged. Harris now appeals.
II. Discussion.
On appeal, Harris contends the district court erred in three respects.
Specifically, he asserts the court should have: (1) granted his motion to suppress
because the lineup was “impermissibly suggestive,” (2) denied the State’s
request to admit Kye’s deposition testimony into the record, and (3) sustained his
objection to the officer’s testimony concerning Lovelady’s photo lineup and
subsequent identification. Harris also challenges the sufficiency of the evidence
to support the jury’s verdict.
5
A. Motion to Suppress.
“When unnecessarily suggestive pretrial out-of-court identification
procedures conducive to mistaken identification that are incapable of repair are
used, the Due Process Clause requires exclusion of the testimony of the
identification.” State v. Folkerts, 703 N.W.2d 761, 763 (Iowa 2005). Reviewing
the record de novo, we must first determine “whether the identification procedure
was in fact impermissibly suggestive.” Id. at 764. Only then do we proceed in
the second step of the analysis—determining whether, under the totality of the
circumstances, an identification made by the witness is irreparably tainted. See
id. Here, we need go no further than the first step, because the underlying basis
for Harris’s argument—that his picture in the lineup showed red-tipped locks—is
simply not supported by the record.
At the hearing on the motion to suppress, the officer that prepared the
photographic lineup first testified that none of the individuals in the photographs
had red-tipped locks. After he was pressed on the issue, the officer
acknowledged that it did appear that there was “some” color in the photo, but he
clarified that the color in the tips of Harris’s locks was “not very distinguishable”
and could be “mistaken as a photo flash.” In denying Harris’s motion to
suppress, the court found that “[i]f one looks really closely at [the photo of Harris
in the lineup], one can see that the tips of the dreadlocks . . . do have some sort
of coloration to it. This coloration does not immediately stand out, but [it] is
observable if one pays close attention to the photograph.”
Harris’s booking photo revealed Harris had very distinctive locks at that
time—layered, shoulder-length locks that were black at their roots to about the
6
middle of each lock, transitioning to a pinkish-red, before turning a bright,
Raggedy-Ann red at the tips. There is a striking contrast between the booking
photo and the lineup photo. The photo of Harris used in the lineup was an older
photo, which also showed layered locks, but if Harris’s locks were red-tipped at
the time, the red is not readily apparent in the photo. Upon our de novo review,
we find nothing about the color of Harris’s locks in the lineup photo to be
impermissibly suggestive. We affirm the court’s ruling on this issue.
B. Deposition Testimony.
Harris argues the court erred in allowing Kye’s deposition to be read into
the record. Specifically, he asserts Kye should not have been declared
unavailable to testify because “the State did not make a good faith effort to obtain
[Kye’s] testimony for trial.” Though we generally review a district court’s decision
to admit or exclude evidence for an abuse of discretion, we review hearsay
claims, including whether a hearsay exception applies, for correction of errors at
law. See State v. Paredes, 775 N.W.2d 554, 560 (Iowa 2009).
As an exception to the hearsay rule, Iowa Rule of Evidence 5.804(b)(1)
provides for the admission of a deposition of an unavailable witness if the party
against whom the testimony is offered had an opportunity and similar motives to
develop the testimony by direct, cross, or redirect examination. Rule 5.804(a)(5)
defines a witness as unavailable when the witness “[i]s absent from the
trial . . . and the proponent of a statement has been unable to procure the
declarant’s attendance by process or other reasonable means.” Thus, the State,
as the proponent of the hearsay evidence, had the burden to establish Kye was
unavailable and that it used diligence in trying to find him. See State v.
7
Zaehringer, 325 N.W.2d 754, 759 (Iowa 1982). “[D]ue diligence requires more
than the issuance of a subpoena and the return of it not found.” State v. Dean,
332 N.W.2d 336, 339 (Iowa 1983). Yet, the lengths to which the State must go to
produce a witness are not without limits; the ultimate question is one of
reasonableness. See State v. Wells, 437 N.W.2d 575, 579 (Iowa 1989).
We are convinced the facts demonstrate a good faith effort by the State to
locate and present Kye for trial. At the beginning of Harris’s trial, the State
explained the extent of its attempt to procure Kye’s attendance:
[Kye] lived at the apartment for . . . four to six weeks before the
incident occurred, [and he] lived there for a short time afterward
before he moved to Cedar Falls to live with his parents . . . . He
was served at his [parents’] address for the taking of his deposition
[in November 2012]. . . . He was deposed . . . by prior [defense]
counsel . . . regarding his knowledge regarding this incident. We
expected him to be present [for trial]. As the court is certainly well
aware, this case got old for . . . a various number of reasons.
When we went to serve [Kye] his subpoena this most recent time,
we sent a number of investigators with the Waterloo Police
Department out to find him including [a] sergeant with the
Investigative Unit. [Two other investigators were] involved in trying
to track [Kye] down. They went to [Kye’s parents’ residence]. He
does not live there anymore. No one from his family lives at that
address anymore. My understanding, the tenants did not know
these people at all. [The investigators] attempted to track [Kye]
down through his—what we had, his existing phone numbers.
Those phone numbers are no longer valid. They do not work. . . .
They did make contact with some of his associates, some of his
friends. Frankly, they asked all of the other witnesses in this case if
they knew where [Kye] was, and [the investigators] were
told . . . that that relationship sort of fell apart pretty quickly after this
incident. They don’t know where he is. They did track down a
number of [Kye’s] friends through Facebook and did receive
confirmation from at least a couple of his Facebook friends that in
April of this year, he returned with his family to Seoul, South Korea,
where they believe [Kye] was beginning his two-year stint in the
Korean Army, which was a mandatory two-year stint.
....
We attempted to contact [Kye] through [Kye’s] Facebook
page and didn’t receive any kind of response. We’re not even sure
8
if he has access to that account any longer. . . . We have not heard
from him. We do not have an address if we could send him a
subpoena in South Korea anyway, but we don’t have an address or
phone number to contact him at. So he certainly is unavailable for
service of a subpoena. . . .
....
. . . It is pretty apparent he is not in our country any longer,
and even if we could find an address, we’ve been told it’s a two-
year mandatory stint. They probably wouldn’t let him come in in
any event. . . .
It is true, as Harris points out, the State did not attempt “to contact the
government or army of South Korea” to compel Kye’s attendance at trial.
Nevertheless, that the State did not do more to locate him does not compel the
conclusion that its efforts were unreasonable. As the Supreme Court has
observed, it is always possible to think of additional steps the State might have
taken to secure the witness’s presence, but it is not required “to exhaust every
avenue of inquiry, no matter how unpromising.” Hardy v. Cross, 132 S. Ct. 490,
495 (2011). The law simply “does not require the doing of a futile act.” Ohio v.
Roberts, 448 U.S. 56, 74 (1980); see also United States v. Winn, 767 F.2d 527,
530 (9th Cir. 1985) (concluding that illegal aliens previously returned to Mexico
were unavailable). If it was greatly improbable that a given measure would have
resulted in locating the witness and producing him at trial—and we think that is
the case here—it cannot be said that reasonableness required the State to
employ that measure. See, e.g., Hardy, 132 S. Ct. at 494; Roberts, 448 U.S. at
76; see also Ambriz-Rivera v. Mukasey, 270 F. App’x 717, 720-21 (9th Cir. 2008)
(“To rely on the fantasy that a witness will return to testify simply because she is
‘requested’ to do so is not the reasonable effort to secure the witnesses’
presence that due process requires.”); United States v. Pena-Gutierrez, 222 F.3d
9
1080, 1088 (9th Cir. 2000) (“[W]hen the government has ‘no addresses or any
other information that would help locate’ the deported aliens, ‘it [i]s reasonable for
the government to make no effort to find the . . . aliens.’” (citations omitted)). We
agree with the district court that the State established Kye was unavailable to
testify as contemplated by rule 5.804 and affirm on this issue.
C. Rebuttal Hearsay Testimony.
Harris next argues the rebuttal testimony of the officer—that four of the
five victims identified Lovelady as one of the intruders in the robbery—was
inadmissible hearsay. He notes the purpose of the officer’s testimony was to
imply Lovelady was also involved in the robbery, “thereby damaging [Harris’s]
alibi evidence.” Again, our review is for correction of errors at law. See State v.
Musser, 721 N.W.2d 734, 751 (Iowa 2006). Though the district court did not
elaborate on its reasons for overruling the hearsay objection, we “affirm a ruling
which admits evidence over a hearsay objection on any proper ground appearing
in the record, even if it was not raised below.” State v. Weaver, 608 N.W.2d 797,
805 (Iowa 2000).
Hearsay is an out-of-court statement offered in evidence to prove the truth
of the matter asserted. Iowa R. Evid. 5.801(c); Musser, 721 N.W.2d at 751.
However, a prior statement by a witness is not hearsay if “[t]he declarant testifies
at trial or hearing and is subject to cross-examination concerning the statement,
and the statement is . . . one of identification of a person made after perceiving
him.” Iowa R. Evid. 5.801(d)(1)(c). Three of the victims that identified Lovelady
in the lineup testified at trial and were subject to cross-examination. Kye’s
deposition, where he had been subject to cross-examination concerning his
10
identification in the photo lineups, was also admitted as testimony.
Consequently, the statement was admissible under rule 5.801(d)(1)(c). See
State v. Mann, 512 N.W.2d 528, 535 (Iowa 1994) (finding that an officer’s
testimony concerning the victim’s identification was not hearsay and therefore
admissible); see also 7 Laurie Kraky Doré, Iowa Practice Series: Evidence,
§ 5.801:8 (2015) (noting rule 5.801(d)(1)(c) “imposes no limits on the type of out-
of-court identification statement that will be admissible. The ‘perceiving’ of the
individual identified can be the result of a line-up, on-scene identification,
photograph or photographic array, or a chance or previously arranged
encounter”). Consequently, the district court did not err in denying Harris’s
hearsay objection.
D. Sufficiency of Evidence.
Harris also challenges the sufficiency of the evidence to support his
conviction. Our review is for correction of errors at law. See State v. Reed, 875
N.W.2d 693, 704 (Iowa 2016). Viewing all of the record evidence in the light
most favorable to the State, “including all reasonable inferences that may be
fairly drawn from the evidence,” we will not disturb a verdict that is supported by
“substantial record evidence.” Id. “Substantial evidence” is evidence from which
a reasonable jury could conclude, beyond a reasonable doubt, that the defendant
is guilty. See id. at 704-05. Moreover, it is for the jury to determine the credibility
of the evidence, and it may credit some evidence over other evidence or reject
the evidence altogether. See id. at 705.
Examining the evidence in the light most favorable to the State, we find
the verdict is supported by substantial record evidence. Among other things, cell
11
phones were taken by the intruders. All of the victims remembered one intruder
had red-tipped locks and was holding a small silver gun. Four of the five victims
identified Harris—even without bright red locks—in the photo lineup. A small
silver gun was found with the victims’ stolen phones, and Harris’s DNA was
found on that gun. Finally, Harris’s alibi was questionable, and it was for the jury
to determine whether or not Harris’s alibi witness was credible. See id. Here, we
find substantial evidence supported the jury’s verdict.
III. Conclusion.
Because we conclude the district court did not err in admitting the
challenged evidence and the jury’s verdict was supported by substantial
evidence, we affirm Harris’s convictions and sentences.
AFFIRMED. | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033584/ | IN THE COURT OF APPEALS OF IOWA
No. 15-1292
Filed September 14, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRADLEY J. QUALLS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
Bradley Qualls appeals his conviction for invasion of privacy claiming
insufficient evidence and further alleges the trial court abused its discretion in
denying his request for deferred judgment. AFFIRMED.
Kent A. Simmons, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, and Elisabeth Reynoldson, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
POTTERFIELD, Presiding Judge.
Bradley Qualls appeals from his conviction of invasion of privacy, in
violation of Iowa Code section 709.21 (2013). Qualls asserts there is insufficient
evidence to uphold his conviction and requests this court reverse his conviction
for entry of acquittal. He further avers the trial court abused its discretion by
denying his request for deferred judgment. We affirm.
I. Background Facts and Proceedings
Bradley Qualls was charged by trial information with invasion of privacy—
nudity, a serious misdemeanor. The complaining witness is an adult relative of
Qualls’s wife.
In the spring of 2014, the complaining witness went to Qualls’s home to
use a basement shower, as the shower at the complaining witness’s home was
inoperable. While she showered, Qualls admitted to recording her using a cell
phone camera while standing in a bathroom directly above the basement shower.
Qualls removed a floor vent above the basement shower and pried a hole in the
floor that gave him an unobstructed view into the shower below.
Qualls then placed the cell phone over the hole to record the complaining
witness. During the seven-plus-minute recording, the camera is positioned and
re-positioned so the complaining witness is always in the camera’s frame. Qualls
contends that he did not watch as the camera was recording but does admit that
he knew the camera was recording. The video, recorded without any audio,
concluded at the exact time the complaining witness exited the camera’s frame
after finishing her shower and drying off.
3
Qualls’s wife found the unfamiliar cell phone in the laundry room of her
home. Believing that her husband may be having an affair, she contacted the
complaining witness for help accessing the information stored on the phone. It
was later discovered to contain the recording of the complaining witness
showering.
Qualls immediately admitted to recording the video and apologized to the
complaining witness. He blamed his actions on some traumatic events of his
childhood along with the “demons” inside him.
The major issue in this case was not whether Qualls recorded the video,
as that was undisputed; it was whether Qualls recorded it for sexual arousal or
gratification, or to exact revenge on the complaining witness.
Qualls asserts that he and the complaining witness have a troubled past.
He recalled the complaining witness and his wife frequently arguing and the
complaining witness would call the wife names. Further, he stated the
complaining victim had previously wrecked his classic car and never attempted
or offered to reimburse him for his loss. He also remembered an incident where
the complaining witness walked in on him when he was not dressed.
At his bench trial, Qualls testified and presented testimony from a licensed
mental-health counselor who, at the time of trial, had conducted twenty-three
sessions with Qualls during the preceding year. Her testimony indicated that
Qualls had suffered traumatic events during his childhood and had a mindset that
he was powerless to control the people who hurt him. She testified Qualls had
been diagnosed with generalized anxiety disorder, obsessive compulsive
4
disorder, and alcohol dependence in remission. The counselor also indicated
that Qualls exhibited remorse for having recorded the complaining witness.
Additionally, she testified that Qualls had been affected by past incidents
involving himself, his wife, and the complaining witness. She opined that Qualls
felt humiliated by the complaining witness and the past incidents, and that he
wanted to “balance” things out with her; the recording of the complaining witness
in the shower was a means of “settling the score.”
The counselor further testified that, in her opinion, Qualls did not record
the video for sexual purposes but rather because the complaining witness was in
a vulnerable state. She stated that she did not believe Qualls had predatory
inclinations, nor that he was sexually deviant. In its bench trial verdict, the court
made a credibility finding against Qualls and did not mention the counselor’s
testimony.
At the sentencing hearing, Qualls requested deferred judgment; however,
the court sentenced Qualls to 180 days in jail—150 days of which were
suspended. The court also imposed a fine and indicated Qualls would be
required to register as a sex offender. His request for work release during the jail
portion of the sentence was granted.
Qualls appeals.
II. Discussion
A. Sufficiency of the Evidence
Qualls contends the trial court should not have found him guilty because
there was insufficient evidence of sexual motivation, and as such, the conviction
should be reversed for entry of acquittal. Specifically, Qualls argues that his
5
conviction cannot stand because the evidence presented did not prove the
element of sexual purpose. Section 709.21 provides:
Any person who knowingly views, photographs, or films
another person, for the purpose of arousing or gratifying the sexual
desire of any person, commits invasion of privacy if all of the
following apply:
a. The other person does not have knowledge about and
does not consent or is unable to consent to being viewed,
photographed, or filmed.
b. The other person is in a state of full or partial nudity.
c. The other person has a reasonable expectation of privacy
while in a state of full or partial nudity.
(Emphasis added.)
“Challenges to the sufficiency of evidence are reviewed for errors at law.”
State v. Keopasaeuth, 645 N.W.2d 637, 639-40 (Iowa 2002). In so doing “[w]e
consider all of the record evidence viewed in the light most favorable to the State,
including all reasonable inferences that may be fairly drawn from the evidence.”
State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016) (citation omitted). “We will
uphold a verdict if substantial record evidence supports it.” Id. (citation omitted).
“Evidence is substantial when ‘a rational trier of fact could conceivably find the
defendant guilty beyond a reasonable doubt.’” Id. (citation omitted). If the
“evidence only raises ‘suspicion, speculation, or conjecture,’ it is not substantial
evidence.” Id. (citation omitted). In criminal cases tried to the court, the court’s
findings of fact have the force and same effect as a special jury verdict. See
State v. Hall, 287 N.W.2d 564, 565 (Iowa 1980).
Qualls stipulates that he recorded the video while the complaining witness
was showering, where she would have expected privacy. He admits to knowing
she was unaware of the recording and that she had not consented to being
6
recorded. However, he contends that he did not record her for sexual arousal or
gratification but rather did so in an attempt to exact revenge for past occurrences
between the two. In finding Qualls had a sexual motivation, the district court
relied on the circumstances upon which Qualls observed the complaining witness
during the recording—the fact he adjusted the phone so that the camera could
capture a better picture—continued the recording for seven minutes, the
elaborate lengths Qualls went in order to prevent disclosure. The court made
explicit credibility findings against Qualls. The court did not mention in its verdict
the testimony of Qualls’s counselor, who described Qualls’s feelings of
helplessness and humiliation as a motivation for his actions. The rule does not
require the judge to discuss every witness in making its detailed findings of fact.
See Iowa Code § 2.23(3)(d) (2013) .
When reviewing the evidence in the light most favorable to the State, a
factfinder could reasonably conclude Qualls recorded the victim for sexual
arousal and gratification. “Intent is a matter that is seldom capable of direct
proof. Consequently, we have recognized that a trier of fact may infer intent from
the normal consequences of one’s actions.” State v. Evans, 672 N.W.2d 328,
330 (Iowa 2003). The evidence presented from the recording itself show that
Qualls did not simply record a snippet of the complaining witness in the shower;
the recording exceeded seven minutes and indicated that Qualls was
maneuvering the camera during the recording to maximize the view of the
complaining witness. Qualls did not stop recording until she was no longer
visible from the first-floor bathroom vent. The evidence is sufficient to prove
intent, notwithstanding the testimony of Qualls or the counselor. To the extent
7
the counselor’s testimony was based on the statements Qualls made to her, as
argued by the State, the court’s credibility finding against Qualls applies to that
testimony as well. We are satisfied the verdict is sufficiently detailed and there is
sufficient evidence to uphold Qualls’s conviction.
B. Abuse of Discretion in Sentencing
Qualls next argues the trial court abused its discretion by denying deferred
judgment using only one essential factor. At sentencing, Qualls requested
deferred judgment; however, the court sentenced him to 180 days in jail with all
but thirty days suspended. Qualls will also be required to register as a sex
offender. See Iowa Code § 692A.113 (2013).
We review sentencing decisions for abuse of discretion. State v. Evans,
672 N.W.2d 328, 331 (Iowa 2003) (citing State v. Laffey, 600 N.W.2d 57, 62
(Iowa 1999)). “An abuse of discretion is found when the court exercises its
discretion on grounds clearly untenable or to an extent clearly unreasonable.” Id.
We consider “all pertinent matters when determining a sentence including the
nature of the offense, the attending circumstances, defendant’s age, character,
propensities, and chances of his reform. Id. “Sentencing decisions of the district
court are cloaked with a strong presumption in their favor.” State v. Thomas, 547
N.W.2d 223, 225 (Iowa 1996).
A sentencing court must exercise its discretion without application of a
personal, inflexible policy relating only to one consideration. State v. Hildebrand,
280 N.W.2d 393, 397 (Iowa 1979). In doing so, [t]he sentencing court should
engage in an independent consideration in each case, and reject the use of fixed
policies. State v. Hager, 630 N.W.2d 828, 834 (Iowa 2001). If the court focuses
8
on only one factor or has a policy against considering any factor, the court has
abused its discretion. See Hildebrand, 280 N.W.2d at 396.
Here, we do not find that the court focused on one sole factor in
sentencing. At sentencing, the court explained why it imposed the sentence it
did. First, the court recognized that both the State and defense counsel called to
its attention prior similar cases before the court. The court acknowledged those
cases and mentioned that each prior case’s final disposition was expected to be
different than other cases given that “each case stands on its own either merit or
lack thereof.” The court further explained that one reason for its rejecting the
request for deferred judgment was due to the manner in which Qualls committed
the crime. The court focused on the level of trust that existed between Qualls
and the complaining witness, the type of relationship the two had prior to this
incident, and the high level of vulnerability of the complaining witness.
The court further stated Qualls’s method of committing the crime also
justified the denial of deferred judgment. The court described Qualls’s decision
to record the complaining witness for over seven minutes and the calculated
movements of the camera by Qualls justified the imposed sentence. The court
also stated that it had concerns that Qualls may reoffend in a similar crime in the
future.
The court did explain that it considered both longer and shorter sentences
than that which was imposed. However, the court opted for the shorter sentence
because Qualls had a job and had no criminal history. The court considered
these factors and took them into account when granting Qualls’s request for work
release. Furthermore, the court imposed a sentence within the statutory limit.
9
See Iowa Code § 903.1(1)(b) (“For a serious misdemeanor, there shall be a fine
of at least three hundred fifteen dollars . . . . In addition, the court may also order
imprisonment not to exceed one year.”).
A court “is generally not required to give its reasons for rejecting particular
sentencing options.” Thomas, 547 N.W.2d at 225 (citing State v. Loyd, 530
N.W.2d 708, 713-14 (Iowa 1995)). The court need only “state on the record its
reason for selecting the particular sentence.” Iowa Code § 2.23(3)(d).
We do not find the court’s imposition of judgment on Qualls to be clearly
unreasonable or based upon untenable grounds. We find that the sentence
imposed and the denial of deferred judgment were acceptable exercises of the
court’s discretion See State v. Formano, 638 N.W.2d 720, 725 (Iowa 2002)
(stating the appellate court’s “task on appeal is not to second guess the decision
made by the district court, but to determine if it was unreasonable or based on
untenable grounds”).
For the foregoing reasons, we affirm.
AFFIRMED. | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033597/ | IN THE COURT OF APPEALS OF IOWA
No. 16-1129
Filed September 14, 2016
IN THE INTEREST OF K.R., T.R.,
N.R., and R.R.,
Minor Children,
R.L., Father,
Appellant,
A.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
A mother appeals the termination of her parental rights to her four sons;
the father of the two younger children also appeals. AFFIRMED ON BOTH
APPEALS.
Marshall W. Orsini of Carr & Wright, P.L.C., Des Moines, for appellant
father.
Mark D. Reed of Marberry Law Firm, P.C., Urbandale, for appellant
mother.
Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant
Attorney General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem
for minor children.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
TABOR, Judge.
These combined appeals from the juvenile court’s order terminating
parental rights involve four boys—seven-year-old T.R., five-year-old K.R., three-
year-old N.R., and two-year-old R.R. Ashley is the mother of all four children.
Robert is the father of the two youngest.1 Both parents argue the State did not
present clear and convincing evidence to support the statutory grounds for
termination and termination was not in their children’s best interests. After our
independent review2 of the record, we agree with the juvenile court’s decision to
terminate the parental rights of both Ashley and Robert, a decision that allows
the children to settle in a safe and permanent home.
This child welfare case opened in February 2015 when it came to the
attention of the Iowa Department of Human Services (DHS) that Ashley and
Robert were wrapping duct tape around the hands and arms of T.R. and K.R.—
then ages five and four—at night, reportedly to keep the boys from getting
access to adult medications. The DHS workers also determined Robert struck
K.R. in the forehead with a piece of wood. After removing all four boys from the
custody of their parents, the DHS placed them with Ashley’s grandparents, where
they remained through the time of the termination proceedings.
Both parents struggled with managing their anger throughout the course of
the case. Despite having mental health diagnoses of anxiety and depression, the
1
The paternity of the older boys is uncertain. The juvenile court also terminated the
parental rights of any putative fathers.
2
We review termination proceedings de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa
2016). We are not bound by the juvenile court’s fact-findings, but we accord them
weight, especially when assessing witness credibility. Id. Proof must be by clear and
convincing evidence. Id. Evidence is clear and convincing when we have no serious or
substantial doubts as to the correctness of conclusions of law drawn from it. Id.
3
parents were inconsistent in attending therapy appointments. They also made
little progress in developing positive parenting skills and never progressed
beyond supervised visitation.3 According to the DHS worker, the older boys, T.R.
and K.R., did not fully trust their mother.
After hearing dates in April and May 2016, the juvenile court issued its
order terminating Ashley’s parental rights to T.R., K.R., N.R., and R.R. under
Iowa Code subsections 232.116(1)(d), (f), (h), and (i) (2015), and terminating
Robert’s rights to N.R. and R.R. under subsections 232.116(1)(d), (h), and (i).
The mother and father separately appeal.
I. Grounds for Termination of Mother’s Parental Rights
Ashley challenges the juvenile court’s grounds for termination under Iowa
Code section 232.116(1). She contends the record did not include clear and
convincing proof the conditions that led to the finding of abuse and neglect
remained despite the offer of services or the children could not be returned
home. She contends she has “gained insight into how taping the children
traumatized them,” understands how to appropriately deal with the father’s use of
corporal punishment, and has stopped threatening the children with harsh
disciplines. She also asserts she has stable housing and a new job.
When the juvenile court orders termination of parental rights on several
statutory grounds, to affirm we need only find clear and convincing evidence to
support one of those grounds. In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App.
2014). We conclude the record supports termination of the mother’s rights as to
3
Although Robert is not their biological father, T.R. and K.R. call him “dad.” The DHS
did not allow Robert ongoing visitation with them because of the incidents of physical
abuse.
4
T.R. and K.R. under subsection (f)4 and as to N.R. and R.R. under subsection
(h).5
Contrary to Ashley’s assertions, we agree with the juvenile court’s
conclusion she was not ready to provide a safe home environment for the four
children. As the juvenile court observed, the parents’ housing situation remained
“unstable and inappropriate.” While Ashley testified she had qualified for housing
assistance and planned to obtain another apartment, at the time of the hearing
she and Robert were living in the basement of another family’s home with only
one bed and with exposure to various hazards for children. The juvenile court
also concluded Ashley’s employment was “uncertain.” Ashley testified she would
be starting a job at a fast-food restaurant soon, but before that she had
“volunteered” at the restaurant were Robert was working, leading to discord in
the workplace and a reduction in his hours.
Most critically to the juvenile court order and to our decision on appeal,
Ashley did not achieve sustained improvements in her parenting skills. Neither
parent followed a recommendation for anger management classes. At the
termination hearing, Ashley would not fully acknowledge Robert’s physical abuse
4
Iowa Code section 232.116(1)(f) allows the court to terminate parental rights when the
children: (1) are four years of age or older; (2) have been adjudicated as children in need
of assistance under section 232.96; (3) have been removed from the parent’s physical
custody for at least twelve of the last eighteen months, or for the last twelve consecutive
months and any trial period at home has been less than thirty days; and (4) clear and
convincing evidence exists that at the present time the children cannot be returned to the
custody of their parents as provided in section 232.102.
5
Iowa Code section 232.116(1)(h) allows the court to terminate parental rights when the
children: (1) are three years of age or younger; (2) have been adjudicated as children in
need of assistance under section 232.96; (3) have been removed from the parent’s
physical custody for at least six months of the last twelve months, or for the last six
consecutive months and any trial period at home has been less than thirty days; and
(4) clear and convincing evidence exists that the children cannot be returned to the
parent’s custody as provided in section 232.102 at the present time.
5
of K.R. Social workers reported problems with Ashley’s supervised visitation with
the children. Ashley sometimes arrived late and did not always give the children
her full attention during the visits. She admitted she would talk or text on her cell
phone: “It’s just a habit that I can’t break. I’ll admit I’m always constantly on my
phone.” In addition, Ashley acknowledged that when the boys misbehaved she
would get “overwhelmed, worked up, [and] stressed out” to the extent that she
had previously threatened to spank them during the visits.
The juvenile court did not find Ashley credible in her assertion she was
committed to refraining from physical discipline and improving her interactions
with the children. Under these circumstances, we cannot place the four children
at risk while Ashley “experiments” with her parenting skills. See In re M.B., 553
N.W.2d 343, 346 (Iowa Ct. App. 1996).
II. Grounds for Termination of Robert’s Parental Rights
On appeal, Robert contests the statutory grounds for termination as to
N.R. and R.R. under section 232.116(1)(h). But, he did not do so at the
termination hearing. In response to the question, “Are you asking that the
children come home today?” Robert replied, “Today, no. In the future I would like
to see it, but not today.” The State argues Robert did not preserve error on the
question whether the children could be returned to his care under subsection (h).
We agree and affirm the termination of his parental rights on that ground. 6 See
In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994) (noting general rule that
6
Because we affirm under subsection (h), we decline to address the alternate grounds
for termination Robert challenges on appeal. See In re J.B.L., 844 N.W.2d at 704.
6
issue not presented to the juvenile court may not be raised for the first time on
appeal).
III. Best Interests of the Children
Both parents argue we should reverse the termination order because it
was not in the best interests of the children under section 232.116(2) and (3)(c).
The best-interests test is primarily based on three considerations: (1) the
children’s safety; (2) the best placement for furthering their long-term nurturing
and growth; and (3) their physical, mental, and emotional condition and needs.
In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (discussing framework of section
232.116(2)). Using this framework, we find the children’s best interests are
served by termination of the parental rights of Ashley and Robert. We embrace
the sentiments of the juvenile court on this point:
[N]ot only do Robert and Ashley fail to demonstrate an
understanding of how to safely parent a child or an understanding
of the need to nurture children, they often demonstrate a disinterest
in learning how to do so. This disinterest is shown by not sustaining
change and only reluctantly participating either in services or
admitting that striking a child with a board is abuse. They have
wasted a lot of time in denying the abuse; time which would have
been better spent wholly participating in services.
Finally, section 232.116(3)(c) allows the juvenile court to refrain from
terminating parental rights if “[t]here is clear and convincing evidence that the
termination would be detrimental to the child at the time due to the closeness of
the parent-child relationship.” This factor is permissive, not mandatory. See In
re M.W., 876 N.W.2d at 225. Under the facts before us, we do not find the
closeness of the relationships between the children and the parents outweighs
the children’s need for permanency. The record shows the boys have acted out
7
after visits with their parents. K.R. and T.R. have shown aggressive behaviors.
The uncertainty of their situation has taken a toll.
The maternal great-grandparents have demonstrated the ability to nurture
these boys and have expressed a willingness to adopt. Termination of parental
rights would clear the path for that permanent placement.
AFFIRMED ON BOTH APPEALS. | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430239/ | The property involved in this litigation consists of a four-story brick building, situated upon Lot 6, Block 22, Sioux City East addition in Sioux City, Woodbury county, Iowa. In 1923, the Prudential Insurance Company of America placed a loan on this property of $50,000 at 5 1/2 per cent interest per annum, payable semiannually, with installments of principal amounting to $1,000 to be paid annually, which loan came due November 15, 1933. The mortgage was executed by the then owners of the property, H.D. Brown and wife, Martha M. Brown. Mrs. Brown is now deceased, and H.D. Brown is insolvent. Appellee W.S. Gilman acquired title to this property in 1926, but did not assume or agree to pay the mortgage indebtedness. At the time the loan became due, the principal had been reduced by appellee Gilman to $42,000. The interest payments were paid in full, except the last semiannual installment. The taxes were paid up to and including the first half for the year 1932. The agent of the insurance company, shortly prior to the time the loan became due, called on Gilman for the purpose of renewing the loan, and the company stood ready and willing to extend the loan for a period of five years on the same terms. At that time Gilman declined to become personally liable on the indebtedness by signing a note or signing an extension agreement on the terms proposed.
Being unable to get together on the terms of a renewal or extension, the company started foreclosure proceedings in December, 1933, and decree of foreclosure was rendered May 18, 1934, and the property sold at execution sale June 18, 1934. The full amount due on the date of the sale was $45,764.33, and the company bid in the property at $1,000 less than this amount. The judgment draws interest at 8 per cent. No continuance was asked for under the moratorium statute. Plaintiff asked for a receiver, which was resisted, and the court refused to appoint a receiver, although the property sold for less than the amount of the debt. Hence, all the rents have gone to Mr. Gilman, who in turn has paid no taxes since 1932. In a letter to the agent of the company, dated October 25, 1935, *Page 33
Mr. Gilman stated: "I expect to get every dollar out of this property I can get in the way of rent to try to reimburse me to some extent for a loss on this property of over $80,000.00." At the same time he called the company's attention to the danger of the plumbing freezing and declined to make any outlay of cash necessary to employ a plumber to look after turning off the water, and this was done at the expense of the company. Henry P. Lowenstein, agent for the company, testified: "It finally got down to the point where The Prudential thought he should pay five and one-half per cent interest and he wanted to renew the loan at five per cent." Gilman testified to a meeting before the conciliators board as follows: -"We had a hearing before the conciliators board here and I made them a proposition that I would pay them $3,000 cash and pay up the interest and taxes within a year, and $250 every quarter if they would give me a ten-year loan at five per cent. The proposal was rejected."
A few days before the period of redemption had expired, this application for an extension of the period of redemption to March 1, 1937, was filed and the matter set down for hearing and notice given prior to the time the period of redemption expired, and upon the hearing the trial court granted the extension. In a written opinion filed, the court states in his findings:
"That the undisputed evidence in this case shows that said real estate had been appraised for the plaintiff herein, at the time of the execution of said mortgage to plaintiff, at one hundred fifty thousand dollars ($150,000) and that in March, 1934, the said property was appraised for plaintiff at ninety thousand dollars ($90,000). And the court finds that the present reasonable value of said property is at least ninety thousand dollars ($90,000) with a reasonable expectation of further increase in value.
"That the defendant, W.S. Gilman, can reasonably expect to arrange for a redemption by March 1, 1937.
"That a hearing was had upon plaintiff's application in the foreclosure proceedings, for a receiver, and judgment and decree of this court entered on or about the 15th day of December, 1934, denying said application for a receiver, under which judgment and decree the court found that there was no *Page 34
such a showing of inadequacy of security as would jeopardize the rights of the plaintiff herein, and that it would be inequitable on the part of this court to take away from the defendant W.S. Gilman, the rentals and profits during the year of redemption. That said judgment and decree was not appealed from by plaintiff herein."
These findings of the court as to the value find ample support in the evidence. The court further found:
"That the plaintiff has not shown that good cause exists for not granting an extension of the period of redemption, and the court finds that the application should be granted, subject to the conditions hereinafter prescribed."
This building is peculiarly constructed. Just east across the alley is located a hotel building, and the three upper floors of the building involved in this suit are connected by a hallway with this hotel building across the alley and the rooms are fitted for hotel purposes with thirty-nine bath rooms. There is no elevator or stairway connecting the lower floor with the three upper floors, and no way of ingress or egress to said three stories, except a fire escape on the outside. It has no heating plant. It appears that the building was erected as an annex to the hotel property and is known as West Hotel Annex. At the time Gilman purchased it, it was bringing in an annual income of $16,800. During the years of the depression the hotel company was evicted from the hotel building and no satisfactory lease has been made with the present occupant of the hotel property, the difficulty arising over the fact that the Prudential Company and Gilman have been unable to agree upon terms of extending the loan, and the operator of the hotel is not willing to enter into any short term arrangement, because of the outlay of money necessary to furnish the rooms for hotel purposes. The burden of Gilman's contention is that the property will not pay the carrying charges of interest, taxes, etc., unless it can be rented satisfactorily, and that it will require some considerable money expended to fix up the rooms in order to make them habitable, and will require considerable more money to put in an elevator and stairways necessary to equip the building in controversy as an independent hotel building.
The serious question in this case, is, Do the facts bring it *Page 35
within the provisions of the moratorium statute (Acts 46th General Assembly, chapters 109, 110)? Certainly the moratorium statute was not intended to enable the debtor to drive a sharp bargain with his creditor, but was intended to protect one in distress financially, who, because of this, was unable to meet the terms of his contract. In this case we find the agent of the company holding the mortgage coming to the property owner before it became due, offering to extend on the same terms, except that a commission was required, and, after the suit was started, three different propositions were made by the company to the property owner, none of which was drastic in its terms, but all of which were rejected, and the company had no other recourse except to accede to the terms demanded by the property owner, or to foreclose and take the property. In the meantime, taxes and interest were piling up at the rate of some $5,500 a year. There is no showing in this record that the appellee could not meet the terms of the extension agreement tendered by the company, but that he would not. Not being personally liable on the indebtedness, apparently the appellee made up his mind, and so stated to the company, that unless they saw fit to come to his terms and extend the loan at 5 per cent, he would continue to collect the rents and get all out of the property he could. He advised the company that in his judgment they were making a mistake in not acceding to his terms, and in going ahead with their foreclosure. There is no law to compel appellee to put any additional money into this loan. He is not personally liable and the company cannot force him to become personally liable.
Should the court construe the moratorium statute so as to make it an instrument in the hands of appellee or any other creditor similarly situated to dictate terms of an extension agreement or renewal of the loan? True, there is considerable equity above the indebtedness. This property is favorably located near the business center of the town. There is need of additional hotel quarters. By proper co-operation, this property could probably be rented. Conditions are improving and the property is probably worth as much or more at this time than at the time of the trial. It is little more than a year until the period of redemption under the order of the court will expire. Under such circumstances, has the lower court abused his limited discretion *Page 36
in granting this extension? That is the question we are required to determine.
It is plainly apparent that at the time the foreclosure action was begun and up to the time the decree was granted, appellee manifested little desire to retain the property or obligate himself to pay the debt. However, there has been a material change in economic conditions throughout the state of Iowa since 1933 and apparently at the time the application for an extension of the time of redemption was filed appellee had become more interested in retaining the property, and he now manifests a disposition to attempt to refinance the loan. In his testimony at the hearing he said. "I am doing everything in my power to arrange a refinancing of the loan. If an extension is granted in this case, and if some arrangement can be made so that a reasonable lease can be made on the property, I think there will be a reasonable probability of refinancing the loan on the building. It is my whole purpose to try to arrange a reasonable lease, and I believe it would be for the interests of everybody concerned. I am willing to enter into a lease arrangement with any receiver appointed by the court and with the plaintiff. I am not trying to use the Moratorium Law arbitrarily for the purpose of forcing the plaintiff to grant a new mortgage on my terms. I am not trying to force a loan by the plaintiff. If I was in their position I would make this kind of a deal — accept the proposition I made them. I would enter into a lease." He further testified: "I am discouraged about the attitude of the company and don't know that they would enter into an agreement at all. A lease could be made if we could work in harmony, but if The Prudential wants to block it they probably could. I am willing to enter into a lease."
On cross-examination he said: "I can't make any new loan on the property because I haven't any lease, but if I had a lease signed for $6,600.00 I could make a new loan on it without any trouble and I wouldn't have to go to The Prudential Insurance Company for it, either. I have been asking The Prudential to sign a long time lease because I have to get a lease before I can refinance, and the manager of the West Hotel insists that The Prudential Insurance Company consent to a lease before he will go into it. I don't know that I can refinance it but I think I can. I can't do it until I have got the lease signed. * * * If I had that lease signed by the owners of the West *Page 37
Hotel I would be willing to personally sign the note and mortgage. The whole proposition rests on whether I can get a satisfactory lease from the West Hotel. The manager of the West Hotel said he would be willing to pay $200.00 a month and I thought he ought to pay $250.00, and then he talked about making a $500.00 lease on the entire building. He just talked about it. That was about ten days ago. He said he had some way of raising money during July, this year. I have been talking to him for over a year about this matter. * * * The controversy with The Prudential over the renewal was the question of whether the interest rate would be five per cent or five and one-half per cent and whether the loan would be for five years or for ten years." In reference to his ability to meet the interest and taxes at the time the loan fell due, he said: "I had already defaulted in some taxes, and it was more money than I could raise at that time. There was a half year's taxes delinquent and six months' interest, and that was a very big item at the time the loan came due. It looked pretty gloomy then, and it don't look any too bright right now." In reference to the propositions made to him by the Prudential, he said: "I felt that 5 per cent was an ample rate to pay. That wasn't the whole trouble, but I still think they might have conceded that much. I didn't feel any of their propositions were favorable. I offered to pay them $3,000 cash, five per cent interest, and pay up the back installments within a year. I thought that was a reasonable proposition. If I had been on the other side of the fence, I would have grabbed it in a minute."
It is plainly apparent that the crux of the whole difficulty lies in the failure to procure tenants. The only tenant possible for the three stories fitted for hotel purposes as the building now stands is the proprietor of the hotel. The hotel company is not willing to invest any money in fixing up and furnishing the rooms unless they can have a long term lease. A long term lease is impossible unless the Prudential Insurance Company and Gilman can agree. So far they have been unable to agree and the record fails to indicate any reasonable probability of an agreement within the period of the extension. Gilman does not, in his own testimony, hold out any hope of being able to refinance this loan unless and until he is able to lease the building under favorable terms whereby the property would be bringing *Page 38
in some $6,600 annually, and the matter stands in this deadlock.
The lower court in the exercise of his reasonable and limited discretion in the matter has granted the extension. In view of the large equity, which appears by a preponderance of the evidence, above the amount of the indebtedness, we are loathe to interfere with the decision of the lower court, especially in view of the fact that even though appellee does not succeed in successfully refinancing, there appears to be ample security for the debt, with all accumulations that may arise within the period of the extension, and therefore the company will sustain no loss in fact. On the other hand, it is with considerable hesitancy that we overlook the conduct of appellee in failing to accept the offer made by the plaintiff to extend this loan prior to the time the foreclosure action was started. We also have some misgivings relative to appellee's ability to refinance the loan, and if he fails, the company will again be confronted with the same situation at the end of the extension period. Yet, in view of the change which has taken place in economic conditions and the apparent good faith effort that has been made by appellee to refinance this loan, the large equity in the property above the indebtedness, and the tremendous loss which appellee will sustain if this extension is not granted, and in view of the fact that the trial court is on the ground and had the witnesses before him and is in a better position to weigh the conflicting circumstances and to judge of the ability of appellee to refinance the loan, we are constrained to hold that the trial court did not abuse his limited discretion and to affirm his order. — Affirmed.
DONEGAN, C.J., and MITCHELL, PARSONS, ANDERSON, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430240/ | [1] The sole question here is: Which of the parties hereto is the owner of certain accretion lands? The record is such as to render extremely difficult and hazardous any attempt to arrive at definite and certain conclusions regarding many of the facts in the case. The plaintiff filed a petition and two amendments. She describes the land which she claims differently in each document. The land awarded her in the decree does not correspond in terms with any of the descriptions in the petition or amendments. Difficulty arises from several sources. One is that descriptions contained in the documents upon which the issue, to some extent, depends, are not very complete or comprehensive. There are references to monuments, the locations of which do not appear. Moreover, a large part of the testimony *Page 1068
in the case has reference to a plat, and the answers of the witnesses frequently consisted of indicating on the plat various locations called for by the questions. Under such circumstances, a court that is unable to see where the witness is pointing on the plat is unable to get much benefit from the answers. Effort seems to have been made to obviate that difficulty to some extent by having marks made on the plat by the witness. The plat, however, is not before us. It appears to have been lost. No effort was made to replace this missing and important part of the record. Under such circumstances, extreme caution must be exercised in reaching a different conclusion on some of the facts than the conclusion reached by the trial court. Where the complete record on which the trial court reached its conclusion on a proposition is not before us, and where the contrary does not appear, the presumption must be indulged that the trial court properly performed its duty and reached a proper conclusion. Garner v. Pomroy, 11 Iowa 149; State v. Orwig, 27 Iowa 528.
The controversy is over lands in a 40-acre tract described as the southeast quarter of the southwest quarter of section 24, township 74, range 44, west of the 5th P.M., Pottawattamie county, Iowa, and the accretions appurtenant thereto. This description would indicate that there had been originally a government survey of this property. The property appears to have been included also in what the appellants call a "wild cat plat" of Lafayette addition to the city of Council Bluffs. This plat does not appear in evidence. We know nothing as to its date or what it shows as to the location of the river. The property also seems to have been embraced within an auditor's plat made about 1918. It shows the river 1,122 feet from the northern boundary of the 40-acre tract. Neither party claims through any government grant. The rights of each party, originally at least, seem to have been acquired by possession only.
The record is silent as to the history, ownership, and possession of this property prior to about 1881. It appears that about that date this entire 40-acre tract of land had been washed away by the Missouri river, except possibly about 5 acres along the northern boundary. On a part of this 5-acre tract, a man by the name of Batchelor settled. Later appellant Foster seems to have settled on this same tract east of Batchelor. In July, 1919, Batchelor brought an action to quiet title against Foster *Page 1069
based on adverse possession to a part of the 40-acre tract containing about 8 acres and described as follows:
Commencing at a point 411 feet west of the northeast corner of the above-described forty; thence south 1,131 feet; thence west 505 feet to the bank of Mosquito creek; thence northeasterly along the east bank of Mosquito creek to the north line of the 40-acre tract; thence east 80 feet to the place of beginning.
What claim Foster had at that time to any part of the 40-acre tract does not appear. No part of the record in that case is before us. The abstract of record in the instant case contains the statement that the decree in that case quieted the title in Batchelor to the property as above described. The circumstances seem to indicate that Foster was occupying and had at that time, by reason of such occupancy, a superior claim to the east 411 feet of the 40-acre tract, the part lying east of the Batchelor land. The appellee in the present case is the grantee of Batchelor. There is some dispute in the evidence as to whether, when the Batchelor case was decided the Missouri river constituted the south boundary of the tract. It appears that the river is now some half mile further south than the southern limit of the description in the Batchelor decree, and it is this additional land that is in controversy. The court in the trial of the instant case found that at the time the Batchelor decree was entered, the south boundary of the land was the Missouri river, that the land had a riparian boundary, and that all accretions resulting from the river working further south belonged to the appellee as the successor to the Batchelor title. The court found that the appellants owned the east 411 feet of the 40-acre tract and that all accretions south of and within the limits of the extended lines on the east and west boundaries of that tract belonged to the appellants; that the remaining accretions south of the 40 belonged to the appellee. The trial court further found that the appellee had been in adverse possession of the accretions for more than the statutory period of ten years. The grounds on which this decree is challenged will be separately noticed.
[2] I. Appellants claim that the southern boundary of the tract in which title was quieted in Batchelor was not a riparian boundary at the time the decree in the Batchelor case was entered and, therefore, there could be no accretions to said tract. The evidence satisfactorily and without dispute shows that prior to the time Batchelor instituted his action, he had a survey made *Page 1070
and that the survey extended from the north boundary of the 40-acre tract to the river and then west along the river to Mosquito creek, a distance of 505 feet. Batchelor commenced his action in July, 1919. The case was not tried, however, and the decree was not entered until February, 1921. There is evidence from which it may properly be inferred that during that interval the river worked some distance further south. From this appellants argue that it was not riparian land at the time the decree was entered establishing the Batchelor title and, therefore, there could be no accretions.
It appears that the Batchelor title was based on adverse possession; that all of the land, title to which was quieted in him, was accretion land except a few acres at the north where his buildings stood and on which he settled in 1881, when the river occupied all the rest of the forty. If Batchelor was entitled to the accretions appurtenant to the tract on which he settled, it is unreasonable to suppose that the court intended to stop part way to the river. If he was entitled to accretions at all, he certainly was entitled to them extending clear up to the river, and we think it quite clearly and satisfactorily appears that the decree intended to accomplish that purpose. The fact that some accretions may have been, and probably were, added between the time the survey was made on which the petition was based and the time the decree was entered, would not defeat that purpose, and would not deprive the land of its riparian boundary.
[3] II. Appellants further contend that since the land, title to which was quieted in Batchelor, was described by metes and bounds both in the decree and in the conveyance to the appellee herein, no accretions attached thereto. It is, of course, true that a riparian landowner may convey a tract of his land and so describe it as to negative an intention to convey with it any riparian rights, including the right to accretions. This is sometimes accomplished by using a mete and bound description. But where it is held that such a description carries with it no rights of riparian ownership, it is where the circumstances are such as to negative an intention on the part of the grantor to convey such rights. Rivas v. Solary, 18 Fla. 122. No such situation exists in this case. Indeed, the description put into the decree and the circumstances under which it was put in clearly indicate a contrary intention, because a large part of the land *Page 1071
embraced within the description was itself accretion land. See 45 C.J. 572.
[4] III. The final challenge of the appellants to the decree, and the one which seems to be urged with greater confidence, relates to the effect of a tax deed which was issued affecting the property in controversy. It seems that the taxing authorities of Pottawattamie county, prior to about 1919, assessed taxes against the property in this forty-acre tract by subdivisions as they appeared on a plat of an addition to Council Bluffs. About that date there was levied a tax against the entire 40 acres described as a government subdivision. The forty acres were sold at tax sale in 1920. It will be noticed that this was during the time the suit between Batchelor and Foster was pending. Foster had some arrangement with one Arnd, who bought the forty acres at tax sale before the purchase was made. After Batchelor had obtained his decree quieting his title against Foster and before tax deed was issued, Batchelor sent his attorney to Arnd about the matter of making redemption, and Arnd suggested that as a means of helping to strengthen the title of both Batchelor and Foster that the tax deed be allowed to issue and then Arnd would convey to Foster the land that belonged to him, and to Batchelor the land that belonged to him. This arrangement was acquiesced in by Batchelor, who paid, and Arnd received, the amount necessary to redeem the Batchelor land. Arnd, subsequently and in 1922, acquired a tax deed and conveyed to Batchelor by quitclaim deed the land specifically described in the decree quieting his title, as hereinabove set out. The deed he made to Foster, however, conveyed the entire forty acres with the exception of the eight-acre tract described by metes and bounds which was conveyed to Batchelor. The description in the Foster quitclaim deed is as follows:
"The Southeast Quarter of the Southwest Quarter of Section 24, Township 74, Range 44, with all accretions thereto, excepting the following: Commencing at a point on the north line of said tract 411 feet west of the northeast corner thereof, thence running south paralleling the east line of said forty acre tract 1131 feet; thence west 505 feet to the east bank of Mosquito Creek; thence following the east bank of said Creek in a northeasterly direction to the north line of said forty acre tract, thence east 80 feet to the place of beginning, being about eight acres, more or less." *Page 1072
It will be observed that if the descriptions in these deeds from Arnd are to be controlling, the appellee herein, as grantee of Batchelor, has only the eight acres substantially in the middle of the forty-acre tract, and that the remaining portion of the forty entirely surrounding the eight-acre tract on the east, south, and west, belongs to Foster. Under such circumstances, all accretions to the forty would, of course, belong to Foster. If the tax deed accomplishes what appellants contend for, there is much to support an inference that it may have been indulged in by Foster as a means of depriving Batchelor of much of the fruits of the decree quieting Batchelor's title entered shortly prior thereto. But can it be said to have that effect under the circumstances here? One who is under obligation to pay taxes on land cannot allow the taxes to default and obtain a tax deed and thereby strengthen his title to or claim upon the land. Doud v. Blood, 89 Iowa 237, 56 N.W. 452. Payments so made for a tax sale certificate are merely payments of taxes. In this case the court could have found that Arnd bought this land at tax sale for Foster, and in pursuance of an arrangement with Foster. Moreover, the payment by the landowner of the amount necessary to redeem to the holder of the tax sale certificate operates as a redemption. Swan v. Whaley, 75 Iowa 623, 35 N.W. 440. The court must have found, so far as Batchelor was concerned, that Arnd had the money with which to make redemption when he obtained his tax deed. Under such circumstances, it cannot be said that the issuance of the tax deed vested in Arnd any right to this land. If he had no right to the land, he certainly conveyed none by the quitclaim deeds which he subsequently made to Foster and to Batchelor. Moreover, all accretions to the eight acres which Batchelor owned were properly a part of it and passed by a conveyance of it. So that the deed to Batchelor must be construed as covering all the accretions properly appurtenant thereto. This would give to Batchelor what he had before the tax deed was issued. That was the obvious intention. The deeds, even if treated as conveying anything, are susceptible of that construction. The title and ownership of this land, therefore, as between these parties must be determined without reference to the tax deed and subsequent quitclaim deeds.
IV. Appellants also complain of the finding of the trial court that appellee had been in adverse possession of the land *Page 1073
in controversy for the statutory period. Of course, if appellee is entitled to these lands as accretions to lands which she admittedly owns, it is not important to determine whether or not she has been in adverse possession for the statutory period. Conversely, if adverse possession for the statutory period appears, it is not important to determine whether or not they are accretions to appellee's land. The trial court found for appellee on both propositions. In view of the absence of the plat to which so much of the testimony of witnesses refers, and without which some of the testimony of the witnesses is not intelligible, it cannot be said that the finding of the trial court that appellee has been in adverse possession for the statutory period is not sustained by a preponderance of the evidence. The trial court had the benefit of evidence which we do not have. As previously indicated in this opinion, the presumption that the trial court acted properly must prevail in such a situation.
No satisfactory reason appears for disturbing the decree of the trial court. It is therefore affirmed. — Affirmed.
KINTZINGER, C.J., and all Associate Justices concur, except RICHARDS, J., who took no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247143/ | Amit P. Mehta, United States District Judge
I. INTRODUCTION
Plaintiff Jean-Gabriel Bernier, a federal prisoner, brought this action against the Federal Defendants1 alleging, among other things, that the Federal Bureau of Prisons violated his Eighth Amendment right to be free from cruel and unusual punishment by refusing to prescribe him the drug Harvoni to treat his Hepatitis C. The court previously dismissed Plaintiff's Bivens claims for money damages on qualified immunity grounds, but allowed his claim seeking injunctive relief in the form of Harvoni treatment to move forward.
This matter is before the court on the Federal Defendants' Motion to Dismiss the remaining claim for injunctive relief as moot, and Plaintiff's Motion for Reconsideration of the court's dismissal of his damages claim against Defendant Allen, Chief Physician of the Federal Bureau of Prisons. For the reasons discussed below, the Federal Defendants' Motion to Dismiss is granted and Plaintiff's Motion for Reconsideration is granted in part and denied in part.
II. BACKGROUND
A. The Federal Defendants' Initial Motion to Dismiss
The court described the facts alleged in Plaintiff's pro se Complaint in its March 2017 opinion granting in part and denying in part the Federal Defendants' Motion to Dismiss, and it need not repeat them at length here. See generally Bernier v. Trump , 242 F.Supp.3d 31 (D.D.C. 2017). To summarize, Plaintiff challenged two aspects of his confinement in his Complaint, seeking both injunctive relief and money damages. See id. at 34-37. Only one of those challenges is at issue here.2 That challenge is premised upon the decision by the Federal Bureau of Prisons ("BOP") to deny Plaintiff the drug Harvoni to treat his Hepatitis C. See generally Defs.' Mot. to Dismiss, ECF No. 50 [hereinafter Defs.'
*153Second Mot. to Dismiss]; Pl.'s Mot. for Reconsideration Regarding Court's Dismissal of Pl.'s Eighth Amendment Bivens Claim on Grounds of Qualified Immunity, ECF No. 57 [hereinafter Pl.'s Mot. & Opp'n]. Plaintiff alleges that "the Federal Defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment by 'deny[ing] Plaintiff treatment for Hepatitis C pursuant to the BOP treatment guidelines and allowing [him] to suffer from the debilitating effects of [Hepatitis C ].' " Bernier , 242 F.Supp.3d at 39 (alterations in original) (quoting Compl., ECF No. 1, ¶¶ 45-46).
The Federal Defendants ("Defendants") previously moved to dismiss Plaintiff's Eighth Amendment claims. See Bernier , 242 F.Supp.3d at 34, 38-40. Defendants sought dismissal on multiple grounds, but the court's opinion focused on only two. First, Defendants sought dismissal of Plaintiff's Eighth Amendment claim for injunctive relief, asserted against Defendants in their official capacities, for failure to state a claim. Id. at 40 ; see Compl. ¶¶ 1-7, 45-46; see also id. at 16 (requesting that the BOP Director direct Defendant Allen to approve Plaintiff's treatment with Harvoni). The court, however, found that Plaintiff had stated a cognizable claim under the Eighth Amendment. See Bernier , 242 F.Supp.3d at 40-41. Specifically, after concluding that Plaintiff had sufficiently alleged a serious medical need, the court found the following allegations "more than adequate" to satisfy the Rule 8(a) pleading standard with respect to Defendants' deliberate indifference to Plaintiff's serious medical need:
Plaintiff alleges that the BOP has violated its own policies and the standard of care in the medical profession by ignoring test results-his FibroSure scores from 2012, 2014, and 2015-indicating he has cirrhosis that requires treatment with Harvoni. Compl. ¶¶ 13, 15, 18-19. The BOP's exclusive reliance on APRI scores and old biopsy results to deny him Harvoni, he further contends, is not premised on valid medical criteria, but instead driven by "avoiding the costs of the Harvoni treatment by denying mostly all prisoners who presently suffer from Hep[atitis] C." Id. ¶ 25. Plaintiff posits that if he were to receive Harvoni now, then "the liver damage already done to the liver will most likely be reversed and the painful [symptoms] which he Plaintiff suffers as a result of the present liver damage will cease to exist." Id. ¶ 24.
Id. at 41 (first alteration in original). Thus, the court allowed Plaintiff's Eighth Amendment claim seeking injunctive relief in the form of Harvoni treatment to proceed. See id. at 44-45.
Second, Defendants also moved to dismiss Plaintiff's claim against Defendant Jeff Allen, then-Chief Physician of BOP, in his individual capacity, seeking money damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Compl. ¶¶ 1, 7, 45-46; see also id. at 16 (seeking $50,000 in damages assessed against Defendant Allen for the denial of medical treatment). The court dismissed this claim on the ground of qualified immunity. Bernier , 242 F.Supp.3d at 38-40. The court held:
Plaintiff's Bivens claims are easily dismissed on the second prong of the qualified immunity test because the rights Plaintiff claims were violated were not clearly established at the time the alleged violations occurred. Plaintiff has cited no binding case, and the court is aware of none, holding that denying a prisoner Harvoni to treat Hepatitis C based only on his APRI score violates the Eighth Amendment ....
Id. at 39. So, in summary, following Defendants' initial motion to dismiss, the court *154permitted Plaintiff to proceed with his Eighth Amendment claim for injunctive relief, but dismissed his Bivens claim for damages against Defendant Allen. In light of this conclusion, the court appointed pro bono counsel to represent Plaintiff with respect to his remaining claim.3 Id. at 45.
B. The Present Motions
Following the court's ruling, instead of answering Plaintiff's Complaint, Defendants moved once more to dismiss Plaintiff's Eighth Amendment claim for injunctive relief. In their present motion, Defendants argue that Plaintiff's claim is now moot because "Plaintiff's (and other inmates') priority level(s) have been adjusted and Plaintiff is now receiving treatment for his Hepatitis C condition." Defs.' Second Mot. to Dismiss at 1. Plaintiff appears to concede that his claim for injunctive relief is now moot. See Pl.'s Mot. & Opp'n, Pl.'s Consolidated Mem. of Points & Authorities in Supp. of Mot. for Reconsideration and in Opp'n to Federal Defs.' Mot. to Dismiss, ECF No. 57 [hereinafter Pl.'s Mem.], at 22-23.
Plaintiff, however, seeks to revive his previously dismissed Eighth Amendment Bivens claim against Defendant Allen and, thus, avoid the end of this action. See id. Plaintiff asks the court to reconsider its dismissal of the Bivens claim on the ground that the court erred in recognizing Defendant Allen's entitlement to qualified immunity, or at least did so prematurely. See id. at 6-22. If the court were to grant his Motion for Reconsideration, Plaintiff reasons, then there would be no basis for dismissal of his claim under the Eighth Amendment. Id. at 23.
III. DISCUSSION
A. Defendants' Motion to Dismiss Under Rule 12(b)(1)
The court begins with Defendants' Motion to Dismiss, which arises under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A motion filed under Rule 12(b)(1) challenges a court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). In addition, the court may consider "such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics , 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ); see also Mykonos v. United States , 59 F.Supp.3d 100, 103-04 (D.D.C. 2014) (applying rule in mootness context). Specifically, when it is necessary to look beyond the face of the complaint to determine whether the court has subject matter jurisdiction, the court may consider "the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." See Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation mark omitted).
Mootness is one ground for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Indian River Cty. v. Rogoff , 254 F.Supp.3d 15, 18 (D.D.C. 2017) ("A motion to dismiss for mootness is properly brought under Rule 12(b)(1) because mootness *155itself deprives the court of jurisdiction."). "Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies." Conservation Force, Inc. v. Jewell , 733 F.3d 1200, 1204 (D.C. Cir. 2013) (quoting Iron Arrow Honor Soc'y v. Heckler , 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) ). "A case is moot when 'the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated' in circumstances where 'it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.' " United States v. Philip Morris USA, Inc. , 566 F.3d 1095, 1135 (D.C. Cir. 2009) (quoting City of Erie v. Pap's A.M. , 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) ). As relevant here, a case becomes moot when "the court can provide no effective remedy because a party has already 'obtained all the relief that [it has] sought.' " Conservation Force , 733 F.3d at 1204 (alteration in original) (quoting Monzillo v. Biller , 735 F.2d 1456, 1459 (D.C. Cir. 1984) ). "The initial 'heavy burden' of establishing mootness lies with the party asserting a case is moot, but the opposing party bears the burden of showing an exception applies[.]" Honeywell Int'l, Inc. v. Nuclear Regulatory Comm'n , 628 F.3d 568, 576 (D.C. Cir. 2010) (citations omitted).
In this case, Defendants argue that Plaintiff's claim for injunctive relief is moot because, after this court's previous decision, Plaintiff started receiving treatment for his Hepatitis C condition. Defs.' Second Mot. to Dismiss at 6. According to Defendants' declarant Elizabete Stahl, a licensed physician employed as the Clinical Director at FCI Allenwood, the facility where Plaintiff was formerly housed, the BOP released in October 2016 an updated guidance for treating incarcerated patients with Hepatitis C. See Defs.' Second Mot. to Dismiss, Ex. A, Second Decl. of Elizabete Stahl, D.O., ECF No. 50-1, ¶ 4. Pursuant to this new guidance, the medical team at FCI Allenwood submitted a request that Plaintiff be treated with a 12-week, daily regime of Harvoni. See id. ¶ 5. Although not approved for Harvoni, Plaintiff was approved for treatment with a different drug Zepatier, a newly approved medication that the FDA "consider[s] [to be] an equivalent treatment option for Hepatitis C," as compared to Harvoni, "depending on the clinical presentation of each individual patient." Id. ¶ 7. Plaintiff then began a twelve-week Zepatier treatment regimen that was scheduled to end in July 2017. See id. ¶ 8. As of May 23, 2017, there was no Hepatitis C viral load detected in Plaintiff's blood. See Notice of Filing Exs., ECF No. 61, Ex. F, Third Decl. of Elizabete Stahl, D.O., ECF No. 61-1, ¶ 3.4
Plaintiff does not dispute that he is now receiving treatment in the manner described in Defendants' declaration. See generally Pl.'s Mot. & Opp'n; Pl.'s Mem. Nor does he dispute the efficacy of Zepatier as an equivalent treatment option to Harvoni. To the contrary, in his Complaint he identified Zepatier as a lower-cost treatment alternative to Harvoni. Compl. ¶ 27. Instead, to the extent he opposes Defendants' Motion to Dismiss, he does so only on the ground that the court should reconsider its previous decision and allow Plaintiff's Bivens claim to proceed. See Pl.'s Mot. & Opp'n at 2 ("[S]ince the revitalization of the damages claim would require this case to continue irrespective of *156the fact that Plaintiff is now receiving appropriate (albeit unjustifiably belated) treatment for his Hepatitis C, the Federal Defendants' pending Motion to Dismiss on the grounds of mootness must be denied."). Thus, Plaintiff effectively concedes that his claim for injunctive relief is moot.5 See NetworkIP, LLC v. FCC , 548 F.3d 116, 120 (D.C. Cir. 2008) ("[W]hile arguments in favor of subject matter of jurisdiction can be waived by inattention or deliberate choice, ... no action of the parties can confer subject-matter jurisdiction upon a federal court." (emphasis added) (internal quotation marks omitted) ); cf. Honeywell Int'l , 628 F.3d at 576 (noting that the party opposing a mootness challenge bears the burden of showing an exception applies). Accordingly, the court grants Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claim seeking injunctive relief in the form of Harvoni treatment.
B. Plaintiff's Motion for Reconsideration
The court now turns to Plaintiff's Motion for Reconsideration. The court evaluates Plaintiff's Motion under Rule 54(b) of the Federal Rules of Civil Procedure, which governs reconsideration of non-final decisions. See Cobell v. Norton , 355 F.Supp.2d 531, 538-39 (D.D.C. 2005). Rule 54(b) provides that "any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Relief under Rule 54(b) may be granted "as justice requires." See Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc. , 630 F.3d 217, 227 (D.C. Cir. 2011). "Courts in this district interpret that abstract phrase narrowly and will grant a motion to reconsider 'only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.' " Ferrer v. CareFirst, Inc. , 278 F.Supp.3d 330 (D.D.C. 2017) (quoting Zeigler v. Potter , 555 F.Supp.2d 126, 129 (D.D.C. 2008) ); cf. U.S. ex rel. Westrick v. Second Chance Body Armor, Inc. , 893 F.Supp.2d 258, 268 (D.D.C. 2012) ("Under this standard, reconsideration may be warranted where the court has patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or [where] a controlling or significant change in the law has occurred." (alteration in original) (internal quotation marks omitted) ). While these considerations "leave a great deal of room for the court's discretion," that discretion "is limited by the law of the case doctrine and subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Ali v. Carnegie Inst. of Wash. , 309 F.R.D. 77, 80 (D.D.C. 2015) (internal quotation marks omitted).
*157Plaintiff here seeks reconsideration of the court's prior dismissal of his Bivens claim for damages against Defendant Allen on the basis of qualified immunity. See Pl.'s Mem. at 6. According to Plaintiff, this claim was "based on the contention that in denying [Plaintiff] treatment for his acknowledged Hepatitis C with Harvoni, the drug representing the current medical state of the art, on the basis of arbitrary guidelines, the[ ] Defendants manifested deliberate indifference to his serious medical needs in violation of the Eighth Amendment." Id. at 6-7. Plaintiff complains that this court, "with virtually no analysis," dismissed this claim on the second prong of qualified immunity because of an absence of case law " 'holding that denying a prisoner Harvoni to treat Hepatitis C based only on his APRI score violates the Eighth Amendment.' " Id. at 7 (quoting Bernier , 242 F.Supp.3d at 39 ).6 Plaintiff argues that the court erred in so holding because it "defined the 'clearly established right' that Plaintiff contends the Defendants violated too narrowly" and "overlooked or disregarded relevant case authorities demonstrating the existence of that right." Id. at 9; see id. at 6-7. Thus, Plaintiff asserts that "justice requires" the court to reconsider its previous decision dismissing his Bivens claim against Defendant Allen. Id. at 6.
The court agrees with Plaintiff that it framed the asserted right at issue too narrowly in its previous decision. In other words, by asking whether it was clearly established that "denying a prisoner Harvoni to treat Hepatitis C based only on his APRI score violates the Eighth Amendment," the court erred by defining the right in accordance with "the very action in question." See Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ; see also Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) ("We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ) ). Thus, the court agrees with Plaintiff that "justice requires" reconsideration of its decision.7
Such reconsideration will not, however, result in the revival of Plaintiff's Bivens claim against Defendant Allen-at least not yet. In Defendants' initial Motion to Dismiss, Defendant Allen moved to dismiss for lack of personal jurisdiction. See Fed. Defs.' Mot. to Dismiss, ECF No. 28 [hereinafter Defs.' First Mot. to Dismiss], at 6-11. The court did not reach that ground because it dismissed the Bivens claim against Allen on the alternative *158ground of qualified immunity. See Bernier , 242 F.Supp.3d at 40 n.8. That was a mistake. "[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of the claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ; accord Gilmore v. Palestinian Interim Self-Government Auth. , 843 F.3d 958, 964 (D.C. Cir. 2016). Qualified immunity is not a jurisdictional issue, but rather a defense on the merits. See Nevada v. Hicks , 533 U.S. 353, 373, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) ; see also Crawford-El v. Britton , 523 U.S. 574, 587, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ("[Q]ualified immunity is an affirmative defense."). Accordingly, before reaching the question whether Plaintiff's claims were subject to dismissal under Rule 12(b)(6) on qualified immunity grounds, this court should have considered whether it could properly exercise personal jurisdiction over Defendant Allen. See Forras v. Rauf , 812 F.3d 1102, 1105 (D.C. Cir. 2016) ("The district court plainly should have satisfied any [personal] jurisdictional concerns before turning to [the] merits question.").
Defendants premised their motion to dismiss for lack of personal jurisdiction on two grounds. First, Defendants moved to dismiss Plaintiff's Bivens claims against the non-resident defendants sued in their individual capacity, including Defendant Allen, for lack of personal jurisdiction under Rule 12(b)(2). See Defs.' First Mot. to Dismiss at 6-10 (arguing that Plaintiff failed to meet his burden to establish that personal jurisdiction satisfied due process requirements and was authorized under the District of Columbia long-arm statute). Second, Defendants moved to dismiss Plaintiff's Bivens claims for lack of personal jurisdiction based on insufficient service of process, which is a basis for dismissal under Rule 12(b)(5). See id. at 6, 10-11; see also Hickman v. Fed. Election Comm'n , No. 14-295, 2014 WL 5902547, at *1 n.1 (D.D.C. Nov. 13, 2014) ). For the reasons that follow, the court should have dismissed Plaintiff's Bivens claim against Defendant Allen on the second ground. See Mwani v. bin Laden , 417 F.3d 1, 8 (D.C. Cir. 2005) ("Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." (quoting Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co. , 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) ) ); cf. Forras , 812 F.3d at 1105.
If a plaintiff wants to pursue a Bivens action against a federal official in his or her individual capacity, that federal official "must be served as [an] individual[ ], pursuant to Rule 4(e)." Simpkins v. District of Columbia Gov't , 108 F.3d 366, 369 (D.C. Cir. 1997) ; see also Fed. R. Civ. P. 4(i)(3) ("To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g)."). Rule 4(e) provides that service may be effected on an individual by one of the following methods:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e)(2). Alternatively, a plaintiff may properly serve an individual *159by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(1).
In this case, the summons to Defendant Allen was returned unexecuted. See Process Receipt and Return, ECF No. 24. As a pro se party proceeding in forma pauperis , Plaintiff relied on the Clerk of Court and U.S. Marshal Service to serve Defendants. See Gonzalez v. Holder , 763 F.Supp.2d 145, 148 (D.D.C. 2011) ; see Fed. R. Civ. P. 4(c)(3) ; 28 U.S.C. § 1915(d). In his Complaint, Plaintiff listed the Central Office for BOP as Defendant Allen's address. See Compl. ¶ 9; Compl., Attach. A, ECF No. 1. A U.S. Marshal attempted to personally serve Defendant Allen at the Central Office for BOP on three separate occasions, but was unsuccessful. See Process Receipt and Return, ECF No. 24. There is a likely explanation for that failure: the Process Receipt and Return contains a handwritten note indicating "[w]orkers stated that Allen no longer works for BOP." Id.
In light of the foregoing, the court agrees that Plaintiff has not properly served Defendant Allen pursuant to Rule 4(e). Thus, the court grants Defendants' Motion to Dismiss Plaintiff's Bivens claim against Defendant Allen under Rule 12(b)(5) for insufficient service of process. Importantly, however, the court will dismiss this claim without prejudice. While a pro se plaintiff proceeding in forma pauperis "is not wholly relieved of his obligation to serve the defendants," judges in this District repeatedly have held that such plaintiffs "generally should not be penalized for court officers' failure ... [to] properly effect[ ] service." See, e.g. , Gonzalez , 763 F.Supp.2d at 148. Thus, the court will give Plaintiff additional time to properly serve Defendant Allen. See Morris v. U.S. Sentencing Comm'n , 62 F.Supp.3d 67, 71 n.1 (D.D.C. 2014) (noting that in such circumstances, "the court typically w[ill] give plaintiff the opportunity to provide additional information to cure any service deficiencies before dismissing the case under ... Rule 12(b)(5)"); Nabaya v. Dudeck , 38 F.Supp.3d 86, 96-97 (D.D.C. 2014) ("[D]ue to the plaintiff's pro se status, dismissal of his case without giving him the opportunity to perfect service is inappropriate."). Such service shall be accomplished within 60 days of the date of this opinion.
* * *
Before concluding, the court directs Plaintiff to proceed as follows regarding this action. If Plaintiff intends to continue to pursue his Bivens claim against Defendant Allen, he shall do so in one of two ways. Plaintiff must either: (1) file and serve an amended complaint, or (2) serve the original complaint and, within 21 days of service, submit a more definite statement under Rule 12(e). See Momenian v. Davidson , 878 F.3d 381, 391 (D.C. Cir. 2017) (stating that "a court can sua sponte order a plaintiff to submit a more definite statement" (citing 2 J. Moore et al., Moore's Federal Practice § 12.34[1][b] (3d ed. 2017) ) ); see also Pinson v. U.S. Dep't of Justice , 975 F.Supp.2d 20, 26 (D.D.C. 2013). The amended complaint or more definite statement should set forth with greater specificity, to the extent known, (1) the time, place, and personnel involved in Plaintiff's institutional testing and treatment for Hepatitis C ; (2) the institutional personnel involved in making a recommendation regarding treatment with Harvoni and their recommendations; (3) the BOP approval process for receiving Harvoni treatment; and (4) Defendant Allen's role in denying treatment with Harvoni. The court requires these additional factual allegations to make an informed determination about the qualified immunity question should Defendant Allen once more raise *160that defense as a ground for dismissal. Additionally, in preparing his supplemental pleading, Plaintiff shall take into account recent developments in the case, including Plaintiff's treatment with Zepatier and the fact of BOP's policy change regarding prisoner priority levels for Hepatitis C treatment, as those events might bear upon the required showing of "deliberate indifference" given "the rapidly evolving legal and medical developments in this area." Cf. Cunningham v. Sessions , No. 16-cv-1292, 2017 WL 2377838, at *4 (D.S.C. May 31, 2017) (holding that the BOP defendants were entitled to qualified immunity from any damages claims arising from the denial of direct-acting antiviral drugs, such as Harvoni, to inmates with chronic Hepatitis C ). Finally, if Defendant Allen is properly served, he remains free to move for dismissal on any ground.
IV. CONCLUSION AND ORDER
For the foregoing reasons, Defendants' Motion to Dismiss, ECF No. 50, is granted, and Plaintiff's Motion for Reconsideration, ECF No. 57, is granted in part and denied in part.
The court hereby vacates its previous decision to the extent it dismisses Plaintiff's Bivens claim for damages against Defendant Allen in his individual capacity on qualified immunity grounds, and grants Defendants' Motion to Dismiss this claim under Rule 12(b)(5) for insufficient service of process. This claim is dismissed without prejudice. Plaintiff shall be afforded 60 days from this date to properly serve Defendant Allen. If Plaintiff does not accomplish service within 60 days from the date of this opinion, unless additional time is requested and granted, the court will enter a final order dismissing this action.
As in its previous opinion, the court uses the term "Federal Defendants" to refer collectively to Defendants Donald J. Trump, President of the United States; Jeff B. Sessions, Attorney General of the United States; Thomas R. Kane, Director of the Federal Bureau of Prisons ("BOP"); Angela P. Dunbar, Assistant Director of Correctional Programs at the BOP; Bradley T. Gross, Assistant Director of Administration at the BOP; and Jeff Allen, Chief Physician at the BOP. See Bernier v. Trump , 242 F.Supp.3d 31, 34 n.1 (D.D.C. 2017). The court used this term to distinguish these Defendants from Defendant Gilead Services, Inc., who Plaintiff also sued for its decision not to accept him into a patient assistance program designed for those who are unable to afford Harvoni. Cf. id. at 34. The court granted Defendant Gilead's Motion to Dismiss, see id. at 43-44, and Plaintiff does not challenge that decision in his Motion for Reconsideration.
The other challenge related to the conditions in which Plaintiff was housed. See id. at 34, 37. The court dismissed Plaintiff's claims relating to the BOP's housing practices, id. at 39-40, 43, and Plaintiff does not seek reconsideration of that decision in his Motion.
The court is grateful to pro bono counsel for his service to the court and his zealous representation of Plaintiff.
The May 2017 test results are the most recent results submitted by Defendants, even though Plaintiff was not scheduled to complete treatment until July 4, 2017. See id. ¶ 4 ("The treatment plan will be to continue treatment until July 4th, 2017. He will continue to undergo clinical and laboratory monitoring according to established clinical guidelines.").
The D.C. Circuit also has suggested that Plaintiff's claim for injunctive relief is now moot. In August 2016, prior to deciding Defendants' initial motion to dismiss, this court denied Plaintiff's motion for preliminary injunction, which sought, among other things, treatment with Harvoni. See Bernier , 242 F.Supp.3d at 38 ; see also Bernier v. Obama , 201 F.Supp.3d 87 (D.D.C. 2016). Plaintiff appealed, see ECF No. 30, and in November 2017, the D.C. Circuit dismissed the appeal as moot to the extent Plaintiff sought "review of the district court's denial of his request for a preliminary injunction to compel [Defendants] to treat him with Harvoni," Per Curiam Order at 1, Bernier v. Trump , No. 16-5281 (D.C. Cir. Nov. 17, 2017), Document No. 1704957. The court reasoned that Plaintiff "ha[d] been treated with Zepatier, which his complaint names as another FDA-approved drug for the treatment of Hepatitis C, similar to Harvoni." Id.
Whether an official is entitled to qualified immunity "depends on the answers to two questions: (1) Did the [official's] conduct violate a constitutional or statutory right? If so, (2) was that right 'clearly established' at the time of the violation?" Jones v. Kirchner , 835 F.3d 74, 84 (D.C. Cir. 2016) (quoting Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). As noted above, this court dismissed Plaintiff's Bivens claim on the second "clearly established" prong of the qualified immunity test. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that courts are vested with the discretion to decide which of the two prongs to address first "in light of the circumstances in the particular case at hand").
To be clear, by granting Plaintiff's Motion for Reconsideration in part, the court leaves for another day whether Plaintiff's broad framing of the right in question as "[t]he right of prisoners to adequate medical care, and to be free from deliberate indifference to their serious medical needs" is correct. See Pl.'s Mem. at 10 (citing Estelle v. Gamble , 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ). Instead, the court simply finds that it framed the right too narrowly in its previous decision. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4039149/ | THE STATE OF TEXAS
MANDATE
*********************************************
TO THE 392ND DISTRICT COURT OF HENDERSON COUNTY, GREETING:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 21st
day of August, 2014, the cause upon appeal to revise or reverse your judgment between
IN THE INTEREST OF K. S., A CHILD
NO. 12-14-00061-CV; Trial Court No. 2013B-0015
Opinion by James T. Worthen, Chief Justice.
was determined; and therein our said Court made its order in these words:
“THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the
same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court
below be in all things affirmed, and that this decision be certified to the court below for
observance.”
WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court
of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the 22nd day of January, 2015.
CATHY S. LUSK, CLERK
By: _______________________________
Chief Deputy Clerk | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430222/ | In September 1942, certain heirs at law of Josiah Early, deceased, designating themselves as plaintiffs-proponents, petitioned the court asking that a certain written instrument dated March 13, 1915, and purporting to be the will of Josiah Early, be admitted to probate. The defendants-contestants, by way of answer, resisted the claim of the petitioners and alleged that said written instrument was not entitled to probate due to lack of proper attestation and lapse of time in being offered. The case was tried as a law action, with the jury waived, and on the 23d day of February 1943, the lower court made an order sustaining the petition and admitting the will to probate. The defendants-contestants appeal.
[1] I. Hereinafter in this opinion we will refer to the plaintiffs-proponents as appellees, and the defendants-contestants as appellants.
The case presents a very unusual situation and some circumstances out of the ordinary. The will was made in 1915; Josiah Early died in February 1917. At the trial both of the subscribing witnesses were dead. On April 3, 1917, the instrument sought to be admitted to probate was filed in the office of the clerk of the district court of Guthrie County, Iowa, and thereafter notice was given that the same would be probated on May 2, 1917. This notice and a proper return showing publication thereof were filed in the clerk's office on September 7, 1917. So far as the record shows, no further proceedings were taken with regard to the instrument filed until the present action.
On the probate docket, after the filing, there appears an undated notation, "withdrawn, May 9, 1917." There is no record to show how or by whom this entry was made, its purpose, or under what arrangement. There appears to be no order of court *Page 572
authorizing or approving said action. The offered instrument has since remained on file in the clerk's office.
About May 9, 1917, Hannah E. Early, a daughter of said Josiah Early, a beneficiary under the purported instrument and an appellant herein, petitioned for letters of administration in the estate of Josiah Early, alleging that said Josiah Early died intestate and asking that she be appointed administratrix therein. Said application was verified by one J.H. Mount, who subsequently acted as attorney for said administratrix. Said application was granted, Hannah E. Early was appointed administratrix, and all the proceedings thereinafter had were as in an intestate estate. The estate has not been closed.
The instrument offered for probate as the will of Josiah Early opens with the following paragraph:
"I, Josiah Early, residing in Panora, Iowa, and being of the age of 79 years and of sound mind and disposing memory, do hereby publish and declare this instrument as and for my last Will and Testament, and hereby direct:"
Then follow the various paragraphs of the will, in one of which (paragraph 2) there was devised to the widow, Sarah A. Early, and two daughters, Hannah Elizabeth Early and Flora Caroline Early, a life estate in and to the balance of his estate after payment of the debts, obligations, and expenses of the estate. The will closes with the following paragraph:
"In Witness Whereof, I have hereunto subscribed my name at Panora, Iowa, on this 13th day of March, A.D., 1915. Josiah Early. [Signed] E.E. Kellogg [and] J.R. Mount [witnesses]."
As above stated, the appellants resisted the probate of the instrument on the grounds that (1) same is lacking in proper attestation and (2) that by reason of the lapse of time it is not entitled to probate. Other matters in resistance were pleaded by appellants but are not urged in this appeal. The second ground, to wit, lapse of time in offering said instrument for probate, has not been urged or argued in this appeal.
When the case was reached for trial the following record was made: *Page 573
"The Court: As I understand it in this present case we are simply attempting to dispose of the probate matter and the only question now involved is whether the purported will now offered for probate should, or should not be admitted to probate. Mr. R.E. Duffield: That is correct. Mr. H.E. Newton: Correct. Mr. R.E. Duffield: It is stipulated by both parties, plaintiff and defendant, that the instrument marked Exhibit `A' was filed in the office of the Clerk of the District Court in and for Guthrie County, on the 3rd day of April, 1907. Mr. H.E. Newton: 1917. Mr. Duffield: 1917. And the instrument marked Exhibit `B' was also filed * * * on the said date. Exhibit `A' being the instrument alleged by the plaintiffs to be the last will and testament of Josiah Early, and Exhibit `B' being the petition for its probate."
It will be seen from the foregoing that the one issue in the case before the lower court was whether or not the proffered instrument was entitled to be probated as the will of Josiah Early. The burden of proof rested upon the appellees to establish that fact. The action being at law, and having been tried to the court with the jury waived, the finding of the court is equivalent to the verdict of the jury.
[2] II. It will be noted that the will does not have an attestation clause. It purports to be signed by Josiah Early and names as its witnesses J.R. Mount and E.E. Kellogg. While it is customary and is considered the better practice to use an attestation clause in the execution of a will, still the statute does not so require. Section 11852, Code, 1939; Hull v. Hull,117 Iowa 738, 89 N.W. 979; Nixon v. Snellbaker, 155 Iowa 390, 136 N.W. 223. We do not understand appellants to seriously argue that the lack of an attestation clause will, in and of itself, prevent probate.
[3] As both witnesses were deceased at the time of trial it was proper to show that they had signed the instrument by other evidence. In re Estate of Allison, 104 Iowa 130, 73 N.W. 489; Scott v. Hawk, 105 Iowa 467, 75 N.W. 368. In Lawson's Rights, Remedies, and Practice, section 3198, the text is as follows:
"Where the witnesses are all dead * * * proof of the *Page 574
handwriting of the witnesses and of the attestation [clause] may be given."
"The most satisfactory proof of handwriting is, of course, the testimony of the person whose writing is in issue, if he is available as a witness. If he is unavailable, the next best proof is the testimony of a witness who saw the instrument in question executed and is able to identify it. The next best testimony is thought to be that of witnesses who have seen the party whose writing is in controversy write or who have had access to, or possession of, his writing so as to impress the character of the writing upon the mind and are able to form an opinion by comparing the impression of the writing on their minds with that which is admitted for examination." 20 Am. Jur. 618, section 742.
In the same volume, 619, section 743, it is said that it is difficult to lay down any precise rule by which to determine the authenticity of the writing used for comparison beyond saying that the proof must be satisfactory. It is further said in the same section that "the decision of the trial court upon the question of the admissibility of a writing as a standard is ordinarily not reviewable by the appellate court, if there is any competent evidence to support it." It has also been held that the signatures of officials on documents produced from official archives, the genuineness of which has never been questioned, and which are officially treated as authentic, may be admitted in evidence as a standard of comparison. See, also, 31 C.J.S. 599, section 38.
Twenty-seven years had elapsed between the execution of the disputed instrument and the time the case was tried. J.R. Mount, a subscribing witness to the instrument offered, was a lawyer who had practiced at Panora many years and during a part of that period had been county recorder of that county. As such he was custodian of the records of the recorder's office. E.E. Kellogg, the other purported witness, was for many years a resident of Panora and for a part of said period was mayor of such city and had in his possession as such official a mayor's docket. The records of the recorder's office were produced at the trial. These records showed numerous signatures of J.R. Mount. The mayor's docket was produced and this was shown to *Page 575
contain many signatures of E.E. Kellogg. These records were offered and received in evidence.
Appellants do not deny that the name "Josiah Early" attached to the instrument offered for probate is the signature of Josiah Early. Appellees called as a witness C.A. Early, a son of Josiah Early. The following is his testimony on the matter:
"I am a farmer. I am a son of Josiah Early. I was one of those who signed the objections to the probating of the will of Josiah Early. As far as I know the signature on the will is his signature. It looks like it might be his signature. I didn't see him sign it. I wouldn't swear to it being his signature."
Appellees, to establish the signature of the witness Mount, offered as a witness W. Frank Moore, who had practiced law at Guthrie Center for over forty years and also operates an abstract business at that place. This witness had known Mount for many years, was related to him by marriage, and had been associated with him in cases in court. He testified that he was familiar with the signature of J.R. Mount and on many occasions had come across his signature on the official records of the county and also on abstracts. Moore testified that the signature "J.R. Mount," appearing as a witness on the purported will of Josiah Early, was the signature of J.R. Mount.
Appellees offered a witness, D.D. Rees, of Panora, to identify the signature of E.E. Kellog as the same appeared on the purported will. Rees testified that he had lived in Panora for many years and was well acquainted with E.E. Kellogg, and that for some years he was manager of the light-and-water service of that city and that part of this time E.E. Kellogg was mayor and witness worked under his supervision. Rees testified he received his pay in warrants signed by Kellogg; said he had seen Kellogg sign his name and that he was familiar with his signature.
The mayor's docket kept in that office was produced and in it Rees pointed out and identified signatures thereon as having been made by E.E. Kellogg. Rees testified that the signature "E.E. Kellogg," appearing as a witness on the purported will of Josiah Early, was the signature of E.E. Kellogg. *Page 576
It seems to us that these witnesses were amply qualified to give the testimony elicited. In the abstract business Moore would doubtless frequently examine the records in the recorder's office and in so doing would come in contact with the signature of the recorder. In addition, he had had contact with Mount over a long period of time and had been associated with him in a professional capacity. Rees had known Kellogg for a number of years. They both lived in the same town. Rees had worked under Kellogg while the latter was mayor and in so doing had been in frequent contact with him and had witnessed him writing his name.
The witnesses Moore and Rees were giving testimony concerning certain signatures purporting to be by J.R. Mount and E.E. Kellogg while acting as witnesses to an instrument claimed to be the will of Josiah Early. This testimony dealt with the handwriting of Mount and Kellogg. Each testified as to knowledge, identity, and familiarity with such handwriting. The objection was made to the competency of such testimony. The long period of time during which each of these witnesses was in contact with the alleged witnesses to the will should give much weight to their testimony, especially in view of the fact that their testimony in that respect stands without contradiction. We hold that the evidence of these two witnesses was admissible. The matter presented to the court called for a determination of a fact question. Whether Josiah Early signed the instrument offered as his will presented that question. In re Estate of Chismore,166 Iowa 217, 147 N.W. 297; Seibel v. Fisher, 213 Iowa 388, 239 N.W. 34; State v. Wickett, 230 Iowa 1182, 300 N.W. 268. The court had before it the purported will, the various records bearing signatures purporting to be those of J.R. Mount and E.E. Kellogg, and the witnesses who gave testimony. Such court held that the record before it was sufficient to entitle the instrument offered to be probated as the will of Josiah Early. We hold that there was substantial evidence upon which the court could base its finding and feel that such finding is binding upon this court. The decree of the lower court is affirmed. — Affirmed.
All JUSTICES concur. *Page 577 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430224/ | This law action was brought to set aside the probating of the will of one R.R. Wilson, deceased, on the ground that decedent was a person of unsound mind and incapable of making a will at the time of the execution of the instrument. At the close of plaintiffs' evidence, defendants moved for a directed verdict, on the ground that plaintiffs had not introduced evidence sufficient to warrant submitting the issue to the jury. The motion was sustained, judgment was rendered against plaintiffs, and therefrom they have taken this appeal. The only question presented is whether there was error in the sustaining of the motion.
The alleged will was executed on February 3, 1930, decedent being then a few months past eighty-eight years of age. He died in January, 1934. His estate consisted of an eighty-acre farm in Dallas county, some lots in Waukee, $2,000 of county road bonds, forty-two shares of 6 per cent stock in a power company, a $500 Liberty bond, and money on deposit and in certificates of not large amount. Decedent was a pensioner of the United States government, and from that source he derived a considerable increment of his estate. For many years prior to 1904, he had lived on and farmed the 80 acres. At this farm *Page 1099
home decedent and his wife reared their family of three sons and four daughters. In the spring of 1904, the land was rented to the son Charles, and decedent and his wife and two unmarried daughters, Susie and Genarie, removed to the town of Waukee and into a large residence which decedent had constructed at about that time. The title to the residence was in decedent's wife. From 1904 until 1929, the family consisted of decedent, his wife, and the two unmarried daughters, excepting that for considerable periods the daughters were away, working as domestics. The wife died in 1929 and thereafter until decedent's demise the family consisted of himself and the two mentioned daughters. The record indicates that decedent was a man of meager education. He could read and write, but always experienced difficulty in even simple calculations involving multiplying or dividing figures and amounts. During his entire life he relied more or less upon others to compute his business transactions or to verify the calculations he himself made. The son Charles conducted all the business and attended to all the details connected with the building of the home in Waukee in 1904. Through his lifetime decedent exhibited not more than mediocre ability or mentality. He was small of stature and considering his advanced age retained well his physical health until his death. At the time the will was made and thereafter until his death his method of life included a measure of light work in the garden, daily walks to various places in the small town of Waukee, together with the habit of sleeping an unusually large part of the daytime. When the will was made, there had been an undoubted recession of his mental powers and energy. Two years previously he had turned over to an agent, one Ellsworth, the management of the farm. However, decedent, until his death, continued transacting the business of depositing his pension checks, and collecting interest on certificates of deposit, although the daughter Susie frequently accompanied and assisted him. At the time of the making of the will, he had adopted the practice of having the daughter draw all necessary checks and the habit of signing his name by mark although he could write his name. There is considerable evidence that before the will was executed decedent had in his home a number of toys, appropriate for small children, and that he would exhibit these toys with an apparent interest and pleasure, but without permitting any children to use them in play. The element of *Page 1100
childishness on part of decedent that might be drawn therefrom is somewhat lessened by the fact that among these toys was a small horn, a gift from a very young grandchild. The horn seems to have been the most highly prized of the collection, quite possibly on account of its association in the mind of decedent. Before the will was executed, there had developed in decedent a noticeable practice of repeating questions and repeating his own remarks. The topics of his conversation with others pertained largely to his former acquaintances and the locality of the home farm, and during visits with various witnesses, after making some inquiry about some subject, he would repeat the question during a later part of the conversation and would listen again to the answer. In this connection the evidence discloses that decedent's sense of hearing was considerably impaired. Likewise if he had observations of his own to make he would frequently repeat them in the same conversation. The two daughters living in the home exercised considerable authority over decedent particularly in restraining him from activities apparently too strenuous for one of such advanced age. At times this resulted in considerable disagreement on part of decedent, and aroused his anger, exhibited by his mumbling and muttering his displeasure, and at times by his refraining from speaking to the daughters for a day or two. In 1908 decedent bought a share of stock in a local elevator and when in 1928 the charter was renewed there was allocated to decedent an additional share. Thereafter he had two or three conversations with the company manager expressing the thought that he should have interest on his money, saying that he had just as well get the cash if he could not get any returns. But a careful reading of the record in this respect might easily lead to the conclusion that decedent fairly understood his investment and was maneuvering for a means of withdrawal of funds from an unprofitable venture. Two twin grandchildren, thirteen years old, testified that they made visits to decedent nearly every summer and upon their arrival decedent apparently did not know or recognize them, indicated by the fact that he made inquiry of Susie and Genarie as to their identity. There is evidence decedent through forgetfulness would feed the cow a second time. There is evidence that when grandchildren discussed Christmas presents desired by them decedent's statement was that he had no money. There is evidence that decedent found pleasurable amusement in the *Page 1101
impression in the mind of a child in the neighborhood that he, decedent, was Santa Claus, and apparently decedent encouraged the child so to believe, promising that he would make him Christmas presents. Decedent in no way redeemed his promise.
All must appreciate the difficulty in the trial of an issue such as was in this case, to present through the medium of witnesses the definite picture of a mental condition that is apparent to one having actual contact and observation. Nor is it an easy task to set out, as we have attempted, a complete statement of the evidence. But having set it out as best we can, our prior holdings compel the conclusion that the court did not abuse its discretion in sustaining the motion. There was no evidence that decedent possessed any insane delusions with respect to any of the natural recipients of his bounty, nor apparently was there sufficient directly bearing evidence to make controversial the questions whether decedent had mental capacity sufficient to comprehend the nature of the instrument he was executing, or to recollect the property he meant to dispose of, or to recollect the natural recipients of his bounty, or to know the manner in which he desired to dispose of his property. Examination of the instrument itself adds but little if any weight to contestant's position. The will appointed a trustee during the lifetime of the two unmarried daughters, benefiting them to the extent of the income, with distribution to the grandchildren upon the decease of the two daughters. It is true four other children of decedent were living and one child was dead leaving issue. But there is no evidence as to the financial status of the four children, nor of any facts peculiar to their condition in life that would make the manner of disposition particularly unreasonable or unnatural. In Re Estate of Fitzgerald, 219 Iowa 988, 259 N.W. 455, the quantum of showing necessary to take to the jury the issue that is in this case having been recently reviewed, no good purpose would be served by repetition in this opinion.
The judgment below must be affirmed. — Affirmed.
DONEGAN, C.J., and ANDERSON, KINTZINGER, MITCHELL, PARSONS, STIGER, HAMILTON, and ALBERT, JJ., concur. *Page 1102 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430226/ | This appeal challenges the correctness of certain rulings upon motions in an action at law. The petition alleged plaintiff owned a 40-acre tract adjacent to Emmetsburg, upon which were his dwelling house and other buildings, and which constituted his homestead; that the City of Emmetsburg had constructed upon abutting property and was maintaining and operating a sewage disposal plant from which emanated foul, noxious and nauseous gases, vapors and odors, which spread over plaintiff's property, interfering with the peaceable, quiet and comfortable enjoyment of said premises, homestead and dwelling by plaintiff and his family and causing them to suffer nausea, discomfort and illness; that said conditions rendered the premises unfit for use as a dairy or dairy farm and interfered with its use as such and as a chicken ranch and for similar purposes; that said conditions have, are now and will in the future constitute a nuisance causing special injury to plaintiff and depreciation of his property.
"Plaintiff alleges that he has been damaged by reason of the premises, including damages for the permanent nuisance *Page 680
heretofore described and including past, present and future damages in the amount of $12,500.00 * * *."
Defendant first filed a motion to require plaintiff to make his petition more specific in two particulars. Both grounds of this motion were sustained following which plaintiff amended his petition.
Thereafter defendant attacked the petition as amended by motion to strike and for more specific statement. Two grounds of the motion to strike were addressed to the amendments and were based upon their failure to comply with the ruling of the court on the former motion to make more specific. These grounds of the motion were overruled and defendant assigns error to said ruling.
[1] I. In considering this assigned error it may be noted that plaintiff took no appeal from the ruling on the first motion to make more specific. Instead he attempted to comply with it. Therefore, the correctness of the ruling on the former motion is not before us and our inquiry will be limited to the question whether the trial court erred in refusing to strike plaintiff's amendment for failure to comply with said ruling. Hunn v. Ashton,121 Iowa 265, 96 N.W. 745.
The first ground of the motion sustained had required plaintiff to state what "special injury" he claimed to have suffered as alleged. The amendment stated, in substance, that the special injury was that the nuisance caused discomfort to plaintiff and family and the deprivation of their comfortable enjoyment of the home and homestead and that because of the immediate proximity of the sewage disposal plant the conditions complained of were more offensive and caused plaintiff special and peculiar injury and damage not suffered by other more remote property owners or the public generally.
We think the amendment substantially complied with the order. It sufficiently explained that the expression "special injury" was used in said paragraph for the purpose of defining plaintiff's claimed injury as a private injury suffered *Page 681
specially by him as distinguished from others or the public in general.
The original petition alleged plaintiff had been damaged, including damage for the permanent nuisance and including past, present and future damages. The second ground of the motion sustained had required plaintiff to "specifically state what sum he claims as damages for alleged `past, present and future damages' and what sum he claims as damages for any other items, specifically specifying and detailing such other items of damages." It will be noted that plaintiff was not required to itemize his claim for past, present and future damages but only for other items. The effect of the ruling is not entirely clear. Whether there could be "other items" is questionable. Whether the claimed damage from permanent nuisance could have included anything in addition to past, present and future damages is likewise uncertain.
Plaintiff sought to comply with the ruling by adding an amendment which when considered with the paragraph amended may be construed as stating, among other things, that the only damages claimed were for the entire injury and were the past, present and future damages resulting from the permanent nuisance. Under this construction there would be no other items to be specifically detailed. The trial court in overruling the motion to strike the amendment apparently adopted this construction and in effect held the amendment satisfactorily excused further compliance with the former order. We conclude the record justifies this holding and that the ruling should be affirmed.
[2] II. The remainder of defendant's motion was stricken. Error is predicated upon this ruling. One division of the motion was merely a renewal of the former motion for more specific statement. We have already held the amendments substantially complied with the order sustaining said former motion. In view of this holding a refusal of the court to again sustain the same motion would not constitute error.
Other paragraphs of defendant's motion sought to strike *Page 682
various other portions of the petition upon the general ground that the same were irrelevant and immaterial, conclusions only and evidence only. In its brief defendant does not discuss the merits of these paragraphs of its motion or argue that they should have been sustained. However, we have examined the portions of the petition thus assailed and find that none of such portions should have been entirely stricken on account of any of the reasons stated in the motion. Therefore, overruling this portion of the motion would not have been error.
However, the court did not overrule the portions of defendant's motion referred to in this division. Instead plaintiff's motion to strike such portions was sustained. The error assigned to this ruling assails the procedure adopted. It is true that a motion to strike another motion is regarded as improper procedure. State v. Carvey, 175 Iowa 344, 347, 154 N.W. 931, 932; German Sav. Bank v. Cady, 114 Iowa 228, 230, 86 N.W. 277, 278.
An objection to a motion may be considered in the ruling on the motion itself. If a party desires to present such objection by a pleading this may be done by a resistance to the motion or other pleading in which no order is applied for.
But it does not follow that an order sustaining a motion to strike another motion constitutes error. The effect of an order striking a motion amounts to no more than an order overruling it. Such procedure is at most irregular and if an overruling order would have been proper the order to strike will not be erroneous. Headford Bros. Co. v. Associated Corp., 224 Iowa 1364, 1374, 278 N.W. 624, 630; Mains v. Des Moines Nat. Bank, 113 Iowa 395, 403, 85 N.W. 758, 761. As above stated the overruling of the stricken portions of the motion in the case at bar would have been proper. Therefore, the order striking these portions of defendant's motion was not erroneous.
This conclusion renders unnecessary the discussion or decision of plaintiff's contention that these portions of defendant's motion were improper procedure under section 11135.1, Code of 1939, as a second motion assailing the same pleading. *Page 683
We express no opinion as to the measure, elements or proper method of pleading damages in this case.
The ruling and order of the trial court is affirmed. — Affirmed.
HAMILTON, C.J., and HALE, SAGER, MITCHELL, RICHARDS, STIGER, MILLER, and BLISS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430234/ | On or about August 13, 1918, appellee, who was a farmer, was injured by the fall of a hay derrick, which resulted in an oblique fracture of the femur of his right leg, an alleged injury to his knee, and an alleged fracture of the neck of the femur. Dr. Jinderlee was immediately called, and took *Page 276
charge of the patient. He moved him to the hospital at Cresco. Dr. Kessel, one of the appellants, was the chief surgeon of that hospital. On the succeeding day, the appellants, Kessel and Jinderlee, reduced the fracture of the femur, applied splints thereto, and, by the use of weights attached to the foot, carried out what is designated in the record as the "method by extension and counter-extension." His limb was later put in a plaster cast. They took an X-ray picture of the femur, did not discover anything wrong with the hip, and for that reason did not X-ray it. Appellants are charged with negligence in this respect, as well as with negligence in failing to discover the condition of his knee. Generally, they are charged with negligence in the care and treatment of the patient with relation to his injury.
Appellee was released from the hospital in a little less than six weeks from the time he was admitted. Later, it developed that the injured leg was approximately three inches shorter than his left leg, and it was about two years thereafter before he could walk without the aid of a crutch or cane, and then only by the assistance of a shoe so constructed as to add an extension to the limb, to meet the length of the other.
This is a sufficient statement of facts, for the present, and any additional facts deemed necessary will be referred to as the opinion progresses.
Sixty-five errors are assigned, urged, and argued in this appeal, 49 of which refer to the admission or rejection of testimony. After laboriously checking up these assignments of error attacking the testimony, we find that 24 of them refer to instances where questions were asked and objections sustained, but the record further shows that the objection was withdrawn, or that the question had been previously or subsequently fully answered, if not in terms, in substance at least. We regret that we are called upon to review such assignments of error. While the ruling on the objection, when made, was probably erroneous, at the same time, when the matter sought to be proven has been previously or is subsequently admitted, the error originally committed is, of course, without prejudice.
Several other errors are based upon the sustaining of objections to questions in which the witness was asked whether or not the line of treatment used by appellants was the usual and *Page 277
1. EVIDENCE: ordinary practice of the profession in Cresco opinion and similar communities, in 1918. This line of evidence: questioning was objected to on the ground that unallowable it called for a conclusion, and invaded the conclusion. province of the jury. We have made a pronouncement on this question, in which we held that this form of question was subject to the objection herein made. The rule in this state, as we understand it to be, is that the witness should testify as to what the usual and ordinary line of treatment is, in similar cases, at the place in controversy and like localities; next, show what line and character of treatment was used, but leave the conclusions or deductions to be made therefrom for the jury. In other words, after the witness has shown the line of treatment actually used, and also what the usual, ordinary, and customary line of treatment is in such cases, it is for the jury, and not for the witness, to draw the conclusion. We confess that this is rather narrow, but it is apparently a definite line, and we have so announced the rule inVan Sickle v. Doolittle, 184 Iowa 885, at 888. It is, therefore, obvious that the ruling of the court on these objections was correct.
Under objection, witnesses were not permitted to testify that the result of the line of treatment used by appellants was "satisfactory." In one instance, where the witness testified that the result was "satisfactory," that part of the 2. EVIDENCE: answer was stricken by the court. Both of these opinion rulings were correct, because the matter stated evidence: is wholly a conclusion, and, in fact, is not unallowable enlightening. The conception of what is conclusion. satisfactory rests wholly in the mind of the witness, and gives no light to the jury. The testimony that the result was good or bad is of the same character, and is subject to the same objection.
Testimony was offered by one of the appellants, tending to show that, in a case of oblique fracture, particles of flesh and muscle were likely to obtrude themselves between 3. PHYSICIANS the fractured ends of the bone, and thus cause a AND slipping. This evidence was rejected, when it SURGEONS: should have been admitted. The evidence shows negligence: that the bones did slip, and this proposed evidence to evidence may have thrown light on the question rebut. of why they slipped.
One of the appellants was asked to describe to the jury, *Page 278
in his own way, appellee's condition when he left the hospital, when the witness last saw him, and what happened to the fracture of the neck of the femur before that time, and 4. PHYSICIANS at the time the X-ray pictures were taken. AND Objection was made to this, and sustained. It SURGEONS: should have been overruled, as there can be no negligence: question as to the competency and materiality of evidence. this testimony.
Appellee's expert testified that one of the recognized methods of treating such condition as existed in this case is what is known as the "open method." To meet this, 5. PHYSICIANS appellants sought to prove that such "open AND method," was not the usual and ordinary method SURGEONS: of practice in Cresco at the time in negligence: controversy. Objection was sustained to this, usual and when it should have been overruled. Appellee ordinary injected the "open method" of treatment into the treatment: case, and appellants had the right to show that evidence. such treatment was not used in the ordinary practice at the place in controversy.
This action is brought against appellants jointly. The prayer of the petition and the verdict of the jury both run against them as joint defendants. As heretofore stated, appellant Kessel had nothing to do with the case until it reached the 6. PHYSICIANS hospital at Cresco, and, as the claim is against AND them jointly, any negligence on the part of SURGEONS: Jinderlee prior to that time would not be negligence: chargeable to them jointly. With this situation, joint appellee sought to show that there was some action: negligence in the care of his limb after the evidence. accident occurred, and before he reached the hospital. An objection to this line of testimony was rightfully sustained, as it was not a material issue in the case, and could not be a basis for a judgment against the appellants jointly.
The evidence shows that appellee's injured limb was more than 7. PHYSICIANS three inches shorter than the uninjured one. AND Appellants sought, by questions, to show that a SURGEONS: shortening of one or two inches would be the negligence: ordinary result, under such circumstances, but, undue over objection, were refused this line of shortening testimony. The questions asked did not measure of limb: up to the facts in the case, and therefore there evidence. was no error in sustaining the objection.
Some of appellee's witnesses testify that, at various times *Page 279
8. PHYSICIANS after being taken to the hospital, appellee made AND certain complaints of pain and discomfort. SURGEONS: Appellants offered testimony to negative this, negligence: but were not permitted to introduce it. This was pain and error. suffering: rebuttal. Appellant Jinderlee was asked:
"What was the usual and ordinary practice among physicians and 9. PHYSICIANS surgeons in Cresco and similar communities, in AND the treatment of a knee such as you found in the SURGEONS: plaintiff at that time?" negligence: usual and This was objected to, and the objection ordinary sustained, when it should have been overruled. treatment: The question follows the usual and ordinary line competency of questions in matters of this kind. of witness.
Appellants asked the following instruction:
"You are instructed that, if you find from the evidence that, at the time the plaintiff left the hospital, and at the time the defendant Jinderlee removed the lower part of 10. PHYSICIANS the splint from the plaintiff's leg, that the AND plaintiff's legs were substantially the same SURGEONS: length, and there was no substantial deformity negligence: therein, and that thereafter the said leg new presented an altogether different appearance, condition and was in an altogether different condition, it subsequent is the law that, even though no instructions to were given to the patient with respect to discharge. decalling upon the defendants or notifying them of the conditions, the plaintiff was required to exercise such ordinary prudence in reference to reporting to the doctors as would be expected of a person in his condition, and the failure on his part to exercise such ordinary prudence and care would prevent him from recovering for any damages thereafter caused to him by reason of the failure to treat the plaintiff."
We do not know whether we exactly comprehend the meaning of this instruction, but think that if, after appellee left the hospital, new conditions arose which were not the natural result of the previous existing conditions, in order to hold the doctors for damages for the result of such new conditions due care on the part of appellee required that he notify the physicians of such new conditions, and that, if he failed to do so, then they would not be liable for the damages caused by such new conditions. *Page 280
As thus construed, the equivalent of this instruction should have been given.
Appellants also asked an instruction stating in substance that, if allowance were to be made for pain and suffering, it was only to apply to the pain and suffering caused by the negligence or unskillfulness of appellants in their treatment, 11. PHYSICIANS and that no allowance could be made for pain and AND suffering incident to the condition of the SURGEONS: injuries or incident to the treatment exercised negligence: with a reasonable degree of care and skill. This damages: was refused, and the only instruction given was pain one excluding the pain and suffering sustained incident to by appellee prior to the time appellants treated injury. him. The vice of this given instruction is emphasized by another instruction, in which the jury was told that, in measuring the damages, it might take into consideration pain and suffering. It is a well known fact that an injury such as the appellee suffered is bound to be accompanied by pain and suffering. For such pain and suffering as are incident to the injury, of course no recovery can be had. Therefore, the instructions should have limited the consideration of the question of pain and suffering to that caused by the negligence and unskillfulness of the physicians in charge. Having failed to do so, the instructions given are erroneous.
Other instructions were asked by appellants, but we feel that they were fairly covered by the instructions given by the court. In the instructions given by the court, Instructions 6 and 7 state that "it is alleged and admitted" that certain conditions existed. Both of these instructions are wrong in this respect, because none of these matters are admitted, but all are specifically denied by appellants.
In Instruction 16 given by the court, the question of the weight of hypothetical questions is considered. 12. TRIAL: This instruction is identical in wording with instruc- the instruction set out in Ingwersen v. Carr
tions: Brannon, 180 Iowa 988, at page 1005. We need not hypothetical copy the same here. The same attack is made on questions: the instruction in the case at bar as was made jury on the instruction in that case, to wit: that it determining left to the jury the determination of the materiality material facts involved. We have repeatedly and of fact. consistently condemned this type of instruction, and we have no disposition to recede *Page 281
from our rule in that respect. See Hall v. Rankin, 87 Iowa 261;Kirsher v. Kirsher, 120 Iowa 337; Stutsman v. Sharpless, 125 Iowa 335; Ball v. Skinner, 134 Iowa 298; Madden v. Saylor Coal Co.,133 Iowa 699; and Stanley v. Taylor, 160 Iowa 427. The argument of the dissentient in the Ingwersen case does not appeal any more strongly to us now than it did to the court at that time. To say that certain facts must be substantially proven or established does not, to our minds, convey the same meaning as to say that the jury may determine what facts are material. In other words, materiality and substantiality are not synonymous.
Some other errors are assigned and discussed, but we do not deem them of materiality, and we think that they are not likely to arise on a retrial of the case; hence they are given no further attention.
The court erred on the matters hereinbefore set out, as in this opinion explained, and the case is — Reversed.
De GRAFF, C.J., and EVANS and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430269/ | Ada O. Daniel died intestate and spouseless, on May 17, 1936, leaving the plaintiffs and the defendant J.E. Daniel as her only heirs at law. The other defendant, O.B. Monroe, was the administrator of her estate. The plaintiffs are grandchildren or great grandchildren of the decedent, and J.E. Daniel was her only remaining child. Since O.B. Monroe, the administrator, was made defendant only because he would not join with the plaintiffs, we will refer to him as the administrator and to J.E. Daniel as the defendant.
Ada O. Daniel was almost ninety-four years old at her death. Her husband had preceded her in death many years. She had three sons and one daughter. The latter who was the mother of the plaintiff, P.W. Robbins, died in 1893. The son Charles died in 1919, and the son Kenneth died on September 20, 1924. She and her husband were pioneer farmers in Clarke county, but, after his death, she spent her remaining years in a modest home in Osceola. Her son Kenneth made his home with her for some years before his death, in 1924. For two or three years she lived alone, but, in 1926 or 1927, the defendant came to live with her, and continued to do so until her death. On January 13, 1932, the defendant's son Jefferson Daniel and his wife also moved into the grandmother's home and remained until her death. In addition to her home, she owned about four hundred and twenty acres of land. Most of it was poor land, and the administrator, in his inventory, estimated its value at $13,000. It was unincumbered. At her death she owned this farm land, about $800 in notes, and nothing more, and owed debts of about $500.
After her husband's death, her brother A.P. Jenks, a member of the private bank, known as Simmons and Company Bank, of Osceola, advised her some in business matters. Jenks was wealthy, and at his death, Mrs. Daniel received considerable money from his estate. She did her banking business at the *Page 681
Simmons bank, and made both demand and time deposits therein. Commencing in January 1924, approximately eighteen or twenty thousand dollars went through her accounts in this bank, up to the time it closed on December 9, 1930. Items of deposit and withdrawal in her account, for a considerable part of this time were put in evidence. At times money would be transferred from her checking account to time deposits. At other times money was withdrawn and loaned to different individuals.
On March 1, 1926, she loaned $12,000 to A.F. Switzer and wife, for which they gave to Mrs. Daniel their note for that amount, payable March 1, 1931, with interest at five per cent, and their real estate mortgage as security. When the bank closed she had $6,500 on time deposit and $500 on demand deposit. The record does not disclose what she realized on these deposit claims.
On March 14, 1928, an assignment of that date, of the Switzer mortgage to the defendant, bearing the name of Ada O. Daniel, as assignor, was filed and recorded in the Lucas county recorder's office. On the same day the $12,000 note was indorsed to the defendant. The indorsement over her name was in the handwriting of W.M. Temple, a lawyer of Osceola. The acknowledgment of the execution of the assignment was before him. In 1928 the defendant collected the mortgage indebtedness, less a discount.
On May 16, 1933, a deed was filed for record with the recorder purporting to have been executed and acknowledged, on January 23, 1933, by Ada O. Daniel, before O.M. Slaymaker, notary public, conveying to the defendant her home in Osceola.
Application was made for the appointment of O.B. Monroe as administrator of his mother's estate, by the defendant on the day following her death, and shortly after he qualified as administrator and as receiver for the real estate. On September 10, 1937, the plaintiffs, consisting of fifteen grand and great-grandchildren, filed their petition in this action. In division one thereof they asked for judgment of $12,000 and interest on the note and mortgage assigned to the defendant. In division two, they asked judgment for $11,533.55 for money alleged to have been wrongfully withdrawn from her bank deposits and from rentals. In division three, they asked that the conveyance of the home be set aside. In division four they asked that if the relief granted in the first three divisions be denied, the *Page 682
property received by the defendant be adjudged to have been advancements, and that the amounts thereof be deducted from any share which the defendant might have in his mother's estate. The basis of all of the divisions was the mental incompetence of Mrs. Daniel, and the fiduciary relation of herself and the defendant. They further alleged that the alleged signatures of Mrs. Daniel to the assignment and deed were forgeries. The plaintiffs had filed a similar petition on October 30, 1936, after the administrator had refused to bring such action. This action was dismissed by the plaintiffs on August 10, 1937, and the present action was brought.
In their answer the defendants admitted the assignment of the mortgage papers and alleged that they were transferred for a valid and valuable consideration; admitted the conveyance of the home as a voluntary gift; alleged that all claims were barred by the statute of limitations; alleged that plaintiffs were guilty of laches; alleged that Ada O. Daniel was at all times of sound mind and that the transfers were of her own free will; alleged that the administrator alone could maintain the action; and that there had been an adjudication of all the causes of action alleged in the petition, because all of said matters were either alleged or could have been in the answer, which the plaintiffs in this action, as defendants, filed in a suit brought by J.E. Daniel to partition the farm land. All other allegations were denied.
The partition action was brought, by Daniel, in May 1936, against all of the parties, who are plaintiffs in this action, asking the partition of the farm land, and alleging the interest of each of the parties therein. The defendants therein pleaded affirmative defenses, the nature of which are not definitely shown in the record. Although the trial court, in its findings and opinion preliminary to its decree, in this action, states that "everyone of the things that are now raised in this action were set up in the answer in the partition proceeding."
Whatever these affirmative defenses were, they were all withdrawn by the defendants in the partition action, and decree was entered therein as prayed, and establishing the interest of J.E. Daniel in the farm land, as an individual one fourth thereof.
[1] The controlling issues in this case are those of fact. One of these is the mental capacity of Ada O. Daniel. The appellants *Page 683
alleged her mental incompetency, and introduced some evidence in support of the allegation, but have not particularly stressed it in argument, except as an element of the alleged fiduciary relation between the defendant and his mother. The appellants offered no expert testimony on this issue. A number of their lay witnesses, on this issue, were incompetent under section 11257 of the Iowa Code. None of them offered a fact basis for the opinion given that was at all strong.
Mrs. Isabel Smith, who worked in the Daniel home for about a year in 1928, was the best witness for the appellants on this issue. She testified: That Mrs. Daniel was away from the home but twice while she was there, but was up and about the house and yard; that she never saw her write or do any business; that she noticed some peculiarities about her actions and mind, and that she was quite odd in her ways, "like any old person"; that "I observed her mind was failing her"; that she was not competent to do business; that she would get mixed up and forget; that sometimes she would remember people when they came in, and sometimes she would not, "but she would know them in a little while"; "I thought she was just like any old lady, and she was failing; when some one called she would sometimes go to the door, and sometimes I would go; she had little sick spells but they didn't last long; when she talked to me sometimes she was pretty badly confused, and part of the time worried, but she never told me of her troubles." She testified that in the presidential election in 1928 she saw her mark her ballot, when it was brought to the home.
The only other competent witness offered by the appellants on this issue was Mrs. Cora Robbins, the stepmother of the appellant, P.W. Robbins. She had known the deceased intimately for forty years, and during the last twenty years of her life, she spent much time in her company. Usually on each visit she would spend a day or a half day. If the witness did not call, Mrs. Daniel would telephone her. From this it would appear that Mrs. Daniel was good company, and yet the witness testified that, commencing ten years before her death, "she got so she was very forgetful, and couldn't remember anything, and she finally got so she didn't even recognize me when I went there. I expect it has been ten years ago when I first began to notice that she didn't recognize me. * * * In 1928 which was eight years before she died, I would say she wasn't mentally competent *Page 684
to transact business at that time. I think she continued growing worse from that time on up to the time she died, because each time I could see she was more feeble in mind and body both. She could walk around, and talked, but she got so her sight was very poor. In 1933 I certainly would not say that she was intellectually competent to transact business at that time." George Schmitt, a witness for appellants testified that he had known Mrs. Daniel for many years, and that "she was capable of visiting with people and going about seeing people and tending to her own business. I have never seen anything wrong about her mind while I knew her."
A.D. Simmons, another witness of the appellants, had known Mrs. Daniel as a patron of his bank for thirty years, and saw her in the bank occasionally. Sometimes at her request and at other times at his own desire he called upon her at her home on business matters. He testified: "I think she was a lady who understood my explanations and had mental capacity to understand about business and things that I explained to her. I saw no change in her condition as long as my visits continued there. She was a lady capable of managing and understanding her own business affairs. I don't think she was a woman that would be easily influenced by outsiders, or others; she exercised an independent will concerning business affairs, and I would say that her condition and mental capacity continued up and until at least December 1930."
For the defendant, Dr. Stroy testified that he was acquainted with Mrs. Daniel and had treated her as a patient, on December 29, 1931, and August 28, 1933, for colds in her respiratory organs. He said: "I examined her and talked to her and questioned her as I would any other patient. There wasn't anything to indicate that her condition was other than normal so far as I could see. I would say to the court that both times I served her, for a lady of her age, she was mentally well preserved. I saw nothing at all that would indicate that she wasn't of good mentality. My impression was she was perfectly competent and had a mind of her own. * * * I naturally would be in a position to judge as to whether her answers were fair or rational. There was no question raised at that time with me or by anybody as to her mental condition, nor was it brought to my attention in any way incidentally." *Page 685
Dr. W.F. Dean, a practicing physician in Osceola for thirty two years, testifying for defendant, said:
"I was acquainted with Ada O. Daniel during her lifetime. I treated her as a patient, at different times, and I was attending her at the time of her death. The mental condition of Ada O. Daniel during the period of time from 1928 up until the time of her death was the average mental condition of any person of her age. She looked after her own business affairs. She wasn't particularly easily influenced. She was rather a strong minded woman, kind of wanted her own way about things and had them usually. In the last two or three days of her life she was sick, and she would be a little delirious at times, but her mental condition was the average mental condition of a good strong minded person up to that time. She died sometime in 1936. I have been the medical member of the Commission of Insanity for Clarke County for twenty years, and I occupy that position at the present time." He testified that he had attended her professionally, mostly for digestive ailments, eleven times in 1928, five times in 1929, two times in 1931, two times in 1932, once in 1935, and seven times in May, 1936, the month of her death. During her last illness she was suffering from uremia, weak heart, and chronic nephritis.
Other old neighbors, who saw her about her home and visited with her during the last ten years of her life and before that period, testified that she had normal possession of her mental faculties at all times, and that they observed nothing wrong or unusual in that respect. It is true that she reached an age much beyond that usually attained, and that she had the physical ailments incident to those years. No doubt she was not as alert mentally as in earlier years, and her memory was not as retentive nor as subject to impression, as it once was. But it requires greater mental retrogression than this to deprive old persons of the right to dispose of their property, as their judgment and their feelings dictate. Mrs. Daniel had many relatives, with most of whom she had little contact. That was true of most of the appellants. Jerry Daniel was her only surviving child. He had given his personal attention to her. She reciprocated as she was able. Every night she went into his bedroom to turn down the covers on his bed. He was still her boy. It is neither strange, nor unnatural, nor evidence of *Page 686
mental incompetency, that she preferred him, in the disposition of her property. It is our judgment that the appellants have failed to establish her mental incapacity.
[2] II. The appellants insist that there was a fiduciary or a confidential relation existing between the mother and son, and that because of her physical and mental weakness, and his stronger personality, he dominated her in the transactions in question, and in all business and property matters. Mrs. Daniel, very naturally, could not give her personal attention to many of the matters connected with the operation of the farm land by tenants. The defendant did these things for her. She could not be in personal contact with many of these matters, and much was necessarily left to his discretion. But there is competent testimony that the tenants consulted with her and she would give general directions to them. The physical labor about the home was performed by the defendant or others. The defendant bought the groceries, and they apparently were paid for when bought. The appellants brought into court the books and records of the Simmons bank, showing many debit and credit entries in her account. A large number of checks were drawn against her account, and frequent deposits were placed in this account. Appellants' witnesses, who had been employed in the bank, or who were merchants about town, had no knowledge or recollection as to who signed her name to these checks. They were not always in the same handwriting. Appellants cross-examined the defendant fully on this matter. He admitted making purchases about town and paying for them by checks on her account. Of the approximately four hundred and fifty checks referred to at the trial, he said that he had not signed very many. Appellants in argument urge that beginning with 1924 $20,542.68 was deposited in her bank account, and that of this amount the defendant had misappropriated approximately $12,000. The record does not sustain this. Of this money $12,000 was loaned to the Switzers. When the bank closed in December 1930, she had $7,000 on time and demand deposit in the bank. The necessary household expenses would readily account for other withdrawals. Whether any dividends were paid on her claims against the closed bank does not appear. There is no evidence that Mrs. Daniel ever complained to the bank about withdrawals from her account. We are satisfied *Page 687
that the appellants are not entitled to recover under division two of their petition.
[3] III. Division one of their petition is based upon the alleged wrongful procuring of the $12,000 Switzer note and mortgage. This note and mortgage bear date of March 1, 1926. The maturity was March 1, 1931. On the back of the note is the following indorsement:
"March 14, 1928
"For value received I hereby assign the within note to Jerry E. Daniel without recourse.
"(signed) Ada O. Daniel."
The indorsement is in longhand and written in ink. There is no evidence disputing the fact that it is the handwriting of W.N. Temple, a lawyer who practiced at Osceola, until his death in 1934. He had been attorney for Mrs. Daniel. The assignment of the mortgage is on a printed form, with the blanks filled by typewriting. It bears the name, Ada O. Daniel, and the date of March 14, 1926. The acknowledgment was taken by W.N. Temple. The instrument was filed for record on the date it bears. There is no evidence disputing testimony that the typewriting was made on a typewriter in Temple's office. The appellants urge that the name, Ada O. Daniel, was not written by her, on either instrument. They offer no proof of their contention, other than the testimony of Mrs. P.W. Robbins, the wife of one of the appellants. We have before us the admitted signature of Mrs. Daniel made in 1920, 1922, 1923 and 1924, and also enlarged photographs of the disputed signatures. We detect nothing to indicate that the questioned signatures are not the genuine signatures of Mrs. Daniel. The defendant testified that the note and the assignment were delivered to him by W.N. Temple, who had had the assignment recorded before delivering it to him. The defendant admitted that he had collected the note and settled with the Switzers. The appellants have failed to sustain the allegations and claim for relief in division one and division three of their petition.
[4] IV. In division four of their petition, the appellants ask that the deed conveying the home to defendant be set aside. The direct proof of the validity of this transfer depends almost entirely upon the testimony of O.M. Slaymaker. His testimony has been viciously attacked by counsel for the appellants. He *Page 688
has been prominent in the practice of law for over thirty years, with his office at Osceola during all of that time. He knew the Daniel family very well, but had done little if any work for Mrs. Daniel, before this occasion. Mr. Slaymaker was one of the attorneys for J.E. Daniel in the partition action. He was one of the attorneys for the administrator. He appeared as one of the attorneys for the defendants in the earlier action brought by the appellants, and which they dismissed. His name is signed individually to the answer of Daniel in this case, although he did not participate in the trial below or in the oral submission in this court. He testified that the attorney trying the case for the defendants was not a member of his firm, and that they were all in the same office together. Because of these circumstances, and the relation of Mr. Slaymaker to the matters involved, and the importance of his testimony, we have given his testimony most careful and critical consideration.
He testified: That a son of the defendant came to his office on January 23, 1933, and told him that Mrs. Ada O. Daniel wished him to come to her home; that she met him at the door as he called, and told him that she wished to sign some papers before him; that she brought to him a deed, fully prepared, but unsigned, conveying her home in Osceola to the defendant; that she told him Will Temple had prepared it for her; that the deed bore the same date as the assignment of the mortgage — March 14, 1928; that upon his inquiring what the defendant was giving her for the property, she said:
"`He has been with me here a number of years and looked after me and taken care of me and he has been good to me,' and she says, `I am turning it to him for the things he has done for me.' I said, `Is this to be taken out of his share of the estate?' and she says, `It isn't.' Then I said, `Here some four or five years ago you assigned to him this Switzer mortgage of $12,000.00 out there.' I said, `What about that, is that to be taken out of his share of the estate?' and she said, `It is not.' She says, `I gave that to him for the same reason I am giving this, that he has been very kind to me and looked after me for a number of years and there was nobody else to do it.' He was the only living child that she had at that time. She signed the deed there in my presence that day. That is her genuine signature on the deed. She not only signed it but she went to her *Page 689
desk and she got the pen and ink and she brought it out there and she signed it on a table that was right there in the room. I would say it was a dining room table, and I said to her, `You are signing this deed for the purpose of transferring this property to Jerry?' and she said, `Yes.' I said, `It is your voluntary act and deed', and she said, `Yes.' I said, `What do you want me to do with it?' and about that time or the time before we got through, Jerry came in and she said, `I want it given to him', and I brought it on down to the office and here at the office we changed the dates so as to be the date that I was there, and I put my name and seal on it and gave it to Jerry. He was not there at the house any time before the time I was telling you he came in while she was telling me these things. I had not seen him there that morning. I saw her granddaughter-in-law back in the kitchen, it was open there and I could see her going back and forth about her work, but she didn't come out in the room where we were." The witness said he was there for twenty minutes or a half hour, during which time she discussed what property she had both in farm lands, and what money she had in the bank when it closed. He said her mind was clear, and he could see nothing wrong with her.
To our minds there was nothing strange about the inquiries which were made to her. They were about matters concerning which any lawyer would have been likely to inquire when on such a mission. No one disputes his being there. The deed was kept in his office for some months and was recorded on May 16, 1933. While the connection of the witness calls for careful scrutiny of the transaction, we find no basis for the aspersions cast upon O.M. Slaymaker or his testimony. Certain unimpeachable circumstances refute these animadversions. This deed has been certified to us. Mr. Slaymaker testified that he took the deed to his office and changed the date and the acknowledgment. These changes clearly appear. We have compared the typewriting in the deed, which was signed January 23, 1933, with the typewriting in the assignment, which was prepared and recorded on March 14, 1928. As we have stated it definitely appears that the latter was prepared in Temple's office. It requires but a cursory examination with the careless eye of a non-expert, in matters of typewriting, to fully convince this court that the deed was prepared at the same time, on the same typewriter, *Page 690
and with same ribbon, used in the preparation of the assignment. This establishes definitely that Mr. Slaymaker had nothing to do with the preparation of the deed, but that Mrs. Daniel had it prepared almost five years before, but delayed its execution and delivery, and called in Mr. Slaymaker simply to witness her signature and take her acknowledgment.
It is our judgment that there was no fiduciary or confidential relation between the defendant and his mother at any time. It is our further judgment that if any such relation existed, the defendant has established by testimony, of the weight and character necessary in such cases, that whatever property he received from his mother, was by her voluntary and intelligent act, and without duress, dominance or overreaching on his part.
[5] V. There remains the contention of the appellants, as alleged in the fifth division of their petition, that whatever property the defendant received was by way of advancement, and should be deducted from his share of the estate. This was an affirmative defense which could and should have been raised in the partition action. There are statements in the record that the appellants did plead advancement as a defense in that action. But whether this is true or not such defense could have been there adjudicated. That issue is res adjudicata so far as this case is concerned. Most of the claims of the appellants were barred by the statute of limitations, but we have felt that the case should be decided on its merits, and we have done so. We have not considered appellee's motion to dismiss the appeal.
It is our judgment that the judgment and decree of the trial court should be and it is affirmed. — Affirmed.
MITCHELL, C.J., and RICHARDS, SAGER, OLIVER, MILLER, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430270/ | No dispute of fact is presented. The contention of plaintiff turns wholly upon a question of law. The plaintiff is the assignee of a judgment obtained October 21, 1921, by one Boyle against De Goey. De Goey was at that time owner of certain real estate upon which the Boyle judgment became a lien. This real estate was under previous incumbrance of two mortgages, for $35,000 and $19,000, respectively. In November, 1922, the second mortgage was foreclosed. Boyle was party-defendant to such foreclosure suit. Pursuant to the foreclosure decree, the land was sold under special execution on January 25, 1923.
On December 13, 1921, De Goey leased the land to Vander Voort for the term of three years, beginning March 1, 1922. The rent stipulated was partly in crop share, and partly in cash. Vander Voort executed notes for the cash rent, and took possession under his lease on March 1, 1922. In June, 1922, the rent notes were sold by De Goey to defendant Smorenberg. On December 30, 1922, the balance of rent due under the lease was assigned by De Goey to defendant Stubenraugh. Such was the chronology of the case up to the date of the foreclosure sale, January 25, 1923.
On January 26, 1923, the plaintiff, as assignee of Boyle, caused general execution to issue under his judgment, and a levy to be made upon De Goey's "right of possession" during the year of redemption. On February 26, 1923, sale was had *Page 992
under this execution, and plaintiff became the purported purchaser of such "right of possession." On January 30, 1923, De Goey executed a deed for such real estate to the defendant Shankland.
The contention for the plaintiff is, in substance, that a landowner's "right of possession" of his real estate during the year of redemption is, in and of itself, a property right, and is distinct and severable from the title, and is subject to execution sale as such. He also contends that such property right is an interest in real estate, within the meaning of the statute, and that his judgment was a lien thereon at all times since its rendition, and that he thereby takes priority over all rights acquired subsequent to the date of the judgment. That the plaintiff's judgment was a lien upon De Goey's real estate and upon his full interest therein (in the absence of homestead) goes without saying. That it was subject to the prior incumbrances is conceded. That the enforcement of such lien against the real estate was subject to statutory procedure and to all the limitations of such procedure is also plain. Does it follow that a judgment-creditor may carve out of the title of his debtor a temporary "right of possession" for one year, or for more or less, and sell the same under execution as property separate and distinct from the land itself or the title thereto? The right of redemption and the "right of possession" during the year of redemption are incidents of ownership of the land. Ownership carries with it the "right of possession" and the right of redemption from incumbrances. While these rights differ in their nature, and are not identical, yet both are parts of the same thing, and that is the title of the judgment-debtor. Each of them is the creature of a merciful statute, which comes to the relief of the hard-pressed debtor and stays the hand of a creditor for twelve months after an execution sale. Neither of them is an estate which can be carved out of the larger estate at the will of a creditor. The owner had the "right of possession" before the foreclosure sale. Under the statute, that "right of possession" was extended for him for twelve months after the execution sale. Granted that the plaintiff had a lien, and that he had a statutory right to execution and to levy such execution upon the debtor's land to the full extent of the debtor's interest *Page 993
therein, yet this would only be a sale of the land subject to superior incumbrances. The proceeding would be purely statutory. The same statute which gave to the owner the "right of possession" for twelve months after the foreclosure sale gave him likewise the "right of possession" for twelve months after plaintiff's sale under general execution. With certain specified exceptions, there is no provision in our statute for the sale of real estate under execution, or any interest in real estate, except it be subject to the right of redemption and possession for the period of twelve months.
In Wissmath Packing Co. v. Mississippi River Power Co.,179 Iowa 1309, we had occasion to consider the question of the power of the owner himself to carve the right of redemption, as a separate estate, out of his larger estate of ownership, and we held adversely to such a contention. In that case we said:
"The parties dispute in argument whether the plaintiff's so-called `right of redemption' was `other property,' within the meaning of the Congressional Act. The plaintiff's theory of the case carves out of the fee-simple estate the `right of redemption,' as being plaintiff's distinctive and exclusive property. The defendant contends that such `right of redemption' is not `land or other property,' within the meaning of the Congressional Act. Defendant also contends that, under the rule of ejusdem generis, the term `other property' must be construed to refer to landed property; whereas the plaintiff contends that the `right of redemption' is an interest in real estate, and in any event is `property,' and that the rule of ejusdem generis has no application. The packing plant was land. The plaintiff was the owner of it in fee simple. If the water damaged it, it was a damage to the land. The fact that the plaintiff had incumbered its title with a mortgage did not change its relation to the fee title. By the terms of the mortgage, it had a right to pay the debt and discharge the lien at any time. Independent of the terms of the mortgage, it had such a right as a matter of equity. This was its `right of redemption.' This right would continue indefinitely until foreclosure sale and until one year thereafter. As a matter of terminology, the right of redemptionbefore sale is often referred to as the equitable right of redemption, and the right after execution sale as the statutory
right of *Page 994
redemption. Whether exercised before sale or after, the right of redemption is essentially the same. It is the right to discharge the lien by payment of the debt. The purchaser at execution sale holds a lien, and a lien only, until his right to a deed matures by the expiration of one year. The mortgagor holds his fee-simple title for the same period. It was expressly so held in Dolan v.Midland Blast Furnace Co., 126 Iowa 254, 256. The title of the mortgagor being thus complete, the `right of redemption' adds nothing to his title or estate, and carves nothing out of it. * * * What we have already said indicates our view that the right of redemption is not an estate nor an interest in lands in any other sense than that it is a necessary incident of ownership, attaching to it and following it at all times. While the ownership continues, the right of redemption continues. When the ownership ceases, the right of redemption ceases likewise, of necessity. There can be no right of redemption without ownership, and ownership without a right of redemption would not be ownership. * * * Conceding that a right of redemption has value, as contended, such value is precisely the same as the value of ownership subject to the incumbrance, and such was the measure of damage submitted by the court to the jury."
Plaintiff's special reliance in his brief is upon two of our former cases: Curtis v. Millard Co., 14 Iowa 128; and HartmanMfg. Co. v. Luse, 121 Iowa 492. The plaintiff relies especially upon the following quotation from the first cited case:
"Under our statute the legal estate of a judgment debtor is not divested by a sale of his land under execution, until after the expiration of the time for redemption, and the title has vested in the purchaser by deed from the sheriff. Prior to the delivery of such deed (which cannot be made until after the time for redemption runs out), the legal estate, the possession, and usufruct, all remain with the execution debtor, and is an interest of value, or such an estate as may be the subject of a lien, or of sale under an execution, or of a conveyance by deed from the debtor."
The quoted excerpt will not bear the interpretation which plaintiff puts upon it. The possession therein is not carved out from the legal estate by the statement that "the legal estate, *Page 995
the possession, and usufruct * * * is an interest of value," etc. Notwithstanding the foreclosure sale, the plaintiff had a right to sell again the legal estate of the debtor. This legal estate would carry the possession and usufruct, subject only to the limitations of the statute. This is not saying that it could be sold under execution in disregard of the statutory right of redemption and possession. If it could be said that the decision in this case carried an implication to the contrary, it must also be said that such implication has never been recognized in our subsequent decisions, the whole trend of which is in the other direction.
In Hartman Mfg. Co. v. Luse, all that was actually decided was that a sale of the right of redemption did not necessarily carry with it the "right of possession." It was said by way of illustration that the debtor could dispose of his right of redemption and yet reserve to himself the right of possession, or dispose of such "right of possession" to another. Because the debtor may do these things voluntarily, it does not follow that a creditor may enforce such disposition upon him. The debtor himself is under no statutory inhibition against making such disposal as he chooses; whereas the creditor is under statutory disability, so far as the enforced subjection of these rights is concerned. It was not held in this cited case, as is assumed in the brief, that the "right of possession" was subject to sale under execution.
In Harrison v. Wilmering, 72 Iowa 727, we held expressly that the sale of the right of redemption under a second execution could not deprive the judgment-debtor of his right of redemption from both sales, within the statutory period. To the same effect, in substance, was American Inv. Co. v. Farrar, 87 Iowa 437. We think the views herein expressed are in accord with the great weight of authority in other jurisdictions. The following quotations from other courts will be sufficiently illustrative:
"The levy of the defendant was upon the lands of the plaintiff. It was not a levy upon plaintiff's right to redeem, or his right to contract with reference to such redemption. While the second levy is frequently spoken of as a levy upon the equity of redemption, cases which have the question squarely involved *Page 996
hold that the levy is not a levy upon the right to redeem."Pellston Planing M. Lbr. Co. v. Van Wormer, 198 Mich. 648
(165 N.W. 724, at 726).
"But whatever may be the technical character of the interest springing from the right of redemption given to a judgment debtor whose lands have been sold under execution, it is not one which may be reached and subjected to sale by a creditor who is in condition to redeem as provided by statute. This is not an open or debatable question in this state." Ewing v. Cook, 85 Tenn. 332
(4 Am. St. 765, at 767).
"The only interest which Bostwick then had was the right to redeem; and to allow this right to be sold on execution would defeat the whole policy of the law allowing redemptions. The right was designed as a favor to the debtor, to afford him an opportunity to save his real estate by the payment, at any time within twelve months, of the price for which it sold, with ten per cent interest; but it would be entirely cut off by allowing this right to redeem to be sold on a second judgment. Again, such a practice would interfere directly with the mode prescribed by the legislature for redemptions by judgment creditors. The law will not permit them to redeem till the expiration of twelve months from the first sale, and it would be inconsistent with the provision of the statute to allow a judgment creditor to accomplish the same object by a sale made within the twelve months." Merry v. Bostwick, 13 Ill. 398 (54 Am. Dec. 434, at 438).
To put the matter in still another form, and briefly, the "right of possession" during the redemption year, as a right of property, is purely statutory; it is a right carved out of the estate, and is reserved to the debtor, to the exclusion of the creditor; it is in the nature of an exemption; the execution of the creditor is not permitted to reach it. It would be an anomaly to say that it is not subject to appropriation by a senior creditor under execution, but is subject to appropriation by a junior creditor under execution. If this right could be taken under execution at all, consistency would require that it should be first available to a senior creditor, rather than to a junior.
It is our conclusion that the plaintiff's judgment was a lien upon the full ownership of the judgment-debtor in the real *Page 997
estate involved, subject to prior incumbrances; that the right of the judgment creditor was to sell such interest in its entirety, in so far as it pertained to any particular tract of land; that, if the execution sale by plaintiff had validity at all, it was valid only as a sale of the land by a junior lien holder; that the sale was subject to the same statutory provisions as any other execution sale of the same land would be.
The decree dismissing the petition is affirmed. — Affirmed.
FAVILLE, C.J., and ALBERT and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430273/ | Appellant, Jones, was the owner of 160 acres of land situated near Des Moines. The city of Des Moines instituted proceedings for the purpose of condemning the tract of land for a municipal airport. The sheriff's jury fixed the value of the land at $65,000. Jones was not satisfied with this valuation and appealed to the district court. In these matters he was represented by George Wilson, a member of the Polk county bar. Appellee, Graeser, is a member of the Polk county bar. He was employed by Jones in the condemnation proceedings as an expert on real estate values.
It is Graeser's contention that he met Jones on the streets of Des Moines and was orally employed by Jones to negotiate a settlement of the controversy between Jones and the city of Des Moines respecting the value of the land; that pursuant to such employment he conducted negotiations which finally resulted in the property being taken over by the city at $80,000. This suit is brought to recover the reasonable value of the services so rendered. It may be noted in passing that Mr. Wilson was not discharged as counsel by Jones, but continued to represent Jones as his attorney until *Page 501
the entire matter was fully adjusted. The case was tried to a jury, which returned a verdict in favor of Graeser. Jones appeals from the judgment upon the verdict and the refusal of the court to grant a new trial.
[1] I. This action is based upon an oral contract of employment and is brought for the purpose of recovering the reasonable value of the services alleged to have been performed under the contract. In the course of the trial, the mayor of the city of Des Moines was called as a witness and testified to conversations had by him with Graeser. Such conversations were objected to by appellant as being hearsay. The conversations were undoubtedly subject to this objection if offered for the purpose of proving the existence of facts stated in such conversations, but this was not the purpose for which the conversations were introduced in evidence. The purpose of their introduction was to establish the fact that plaintiff performed services such as were called for by his contract. For this purpose the testimony was competent, and was not vulnerable to the objection that it was hearsay.
II. Appellant predicates error on the action of the trial court in submitting the case to the jury, claiming that there was not sufficient evidence that a contract was entered into, as alleged, to warrant the submission of the question to the jury. Plaintiff testified to the conversation with Jones in which it is claimed the agreement was made. He testified to every fact necessary to create a contract. The defendant denied essential portions of the conversation as related by plaintiff. This conflict in the testimony did not destroy plaintiff's testimony. It was a question for the jury to say whether they would believe plaintiff or defendant. It follows that the court properly submitted the case to the jury.
[2] III. Guy Miller, a member of the Polk county bar, was called as a witness in behalf of plaintiff and testified to the reasonable value of the services performed by plaintiff. The record indicates that this witness was recalled and over objection was permitted to testify that he was city attorney of Des Moines during the years 1916, 1917 and 1918, and had had experience in suits for the condemnation of property, and that it was easy to get a reduction but difficult to get an increase in the price. It is somewhat difficult to understand how these matters were material in view of the fact that the character of the services rendered by plaintiff was revealed in detail by the evidence. The situation complained of will *Page 502
not arise upon a retrial of the case. We think the court might well have excluded the testimony of the witness to the effect that his experience in the city attorney's office had indicated to him that it was easy to secure decreases but difficult to secure increases in the prices of condemned property. The case would not be reversed, however, upon this assignment of error alone.
IV. In one instruction the court inadvertently used the word "plaintiff" in referring to Graeser and the word "plaintiff" in referring to Jones as appellant in the condemnation proceedings. It is said that such use of the word "plaintiff" was confusing. We have examined the instruction carefully in the light of this complaint and reach the conclusion that the jury could not have been confused or misled by the instruction as given.
[3] V. It has been noted that the action is based on an oral contract of employment, and that the answer of the appellant was a general denial. In an opening, unnumbered paragraph of the instructions the court stated the issues presented by the pleadings. In the fourth paragraph of the instructions the court restated the issues. After stating that appellee claimed that he had been employed to negotiate a settlement and had negotiated a settlement pursuant to such agreement, the court stated that the defendant denied such contract and claimed that the settlementresulted from the negotiations of appellant and his attorney,George Wilson. No such claim was made by appellant in his pleadings. The court then told the jury:
"In this connection it appears without dispute in the evidence that George Wilson was at all times material to this lawsuit, acting as the defendant's attorney in handling said condemnation proceedings and the settlement of all litigation arising out of the same, and therefore, any information acquired by the said George Wilson as to the efforts or work or services performed by the plaintiff, would be imputed to the defendant, whether communicated to the defendant or not."
Proceeding, the court required the jury to find that appellee had been so employed and that he had negotiated a settlement of the condemnation proceedings, before returning a verdict for appellee, and then told the jury:
"In this connection, it is the law that where one performs services for another, at the request of the latter, who receives and *Page 503
accepts the benefits of such services without objection and there is no agreement as to the amount of compensation, then the person so performing the services may recover the reasonable value of such services."
By this instruction the court injected into the trial an issue not raised by the pleadings and wholly immaterial to the determination of the suit; namely, whether appellant knew that appellee was negotiating in appellant's behalf. If appellee had a contract of employment and negotiated the settlement he was entitled to be paid. On the other hand under the pleadings, if he had no contract he was not entitled to be paid even though he negotiated the settlement. The injection of the element of knowledge on the part of appellant of appellee's activities and the idea that appellant accepted the benefits of appellee's services without objection when charged, as he was under the court's instruction, with the knowledge had by Wilson would inevitably obscure the issue whether a contract of employment had been entered into, which had been performed by appellee. Appellant contends that the giving of the part of the instruction first above quoted, in connection with the remaining portion of the instruction, was erroneous and prejudicial to him. We think his position is well taken. Deppe v. C., R.I. P.R. Co., 36 Iowa 52; Friesner Fruit Co. v. C.G.W.R. Co., 199 Iowa 1143, 201 N.W. 112; Seddon v. Richardson, 200 Iowa 763, 205 N.W. 307; Sioux City P.R. Co. v. Walker, 49 Iowa 273. While not questioned by appellant, we doubt whether the part of the instruction first quoted is a correct statement of the law. It is doubtful, to say the least, whether appellant was charged with knowledge of appellee's activities on account of Wilson's knowledge of them. Wilson was not employed by appellant on any matter connected with appellee or with appellee's alleged employment by appellant.
In view of the fact that the judgment of the trial court must be reversed, it is not necessary that other errors assigned be discussed, for such assignments are either in effect disposed of by the foregoing discussion or are not likely to arise upon a retrial of the case. For error indicated in the fifth division, the judgment of the trial court must be and is reversed. — Reversed and remanded.
ALBERT, C.J., and EVANS, KINDIG, and DONEGAN, JJ., concur. *Page 504 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430221/ | On the 21st day of March, 1929, the plaintiff, Albert Jackovach, by his father and next friend, brought a suit at law in the District Court of Lucas County, Iowa, for the April, 1929, term of the District Court, asking damages for $15,000.00.
It appears that on the 10th day of March, 1929, plaintiff, then a boy of about seventeen years of age, living with his parents at Williamson, a mining town in Lucas County, Iowa, in company with a young man of about the same age, boarded a freight train at Williamson to ride the same to Chariton, some eight or ten miles away. As the freight train approached Chariton, it became apparent it was not going to stop and thereupon both boys arranged to jump off the train as it passed through Chariton at a rate of speed variously estimated at from fifteen to thirty-five miles per hour.
William Wood, the plaintiff's associate, jumped first.
Apparently the boys were riding oil tank cars and as the plaintiff jumped off, he left the car upon which he had been riding in such a way as that an iron step on the car immediately behind the car upon which the plaintiff was riding struck the plaintiff on the head.
In attempting to save himself as he fell to the ground, he lit on one of his hands. This was between two parallel tracks, the space between which was filled with cinders. The plaintiff was either dragged or rolled, and the evidence does not very clearly show which, a considerable distance, possibly fifty to eighty feet. *Page 916
When he jumped, he had on an overcoat, undercoat, shirt and a long-sleeved undershirt.
A disinterested witness described his condition as follows:
"When picked up, his overcoat was pretty badly shredded, his hat was gone, his face was all scratched and his hand dangled."
He was helped into the waiting room of the station and the defendant, Dr. Yocom, was immediately called and responded at once.
The boy was taken to a hospital, known as the Yocom Hospital and operated by the defendant.
On examination, it was found that he had a long scalp wound, two or three inches in length, from which he was bleeding profusely. It was discovered that he had a crushed elbow joint, there being what is known as a compound, comminuted fracture thereof.
After an examination, the boy was removed to the operating room of the hospital, two other physicians were called, an anesthetic administered and the wound on the head was treated by stopping the flow of blood and sewing up the cut. After a consultation of the doctors, the arm was amputated.
This suit is brought on the theory that the defendant was employed and instructed to "reduce and mend" the said fractured arm and not to amputate the arm and that the amputation was without the express consent of the plaintiff or of his parents. The cause was tried to a jury, all of the issues having been withdrawn from the consideration of the jury except the charge that the amputation was performed without the consent of the plaintiff or his parents. The jury returned a verdict for the defendant, and the plaintiff appeals.
[1] I. The appellant contends that the lower court erred in not granting a change of venue upon the plaintiff's application.
As has been stated, the petition was filed on the 21st day of March, 1929, for the April, 1929, term of court. The defendant made an appearance at the April, 1929, term of court and upon request of defendants' attorneys the time for answer was extended until the 11th day of April, 1929, on which day an answer was filed. By that time, the condition of the trial *Page 917
work at that term of court was such that it became necessary to continue the cause over the April term.
On the 20th day of August, 1929, the plaintiff filed a Motion for Change of Venue, the substance of which is that the defendant had for many years been a leading physician and surgeon of Lucas County where he had practiced for many years and that his influence extended throughout the county, that he had patients from all parts of the county, that he was connected with various lodges and organizations and that plaintiff could not obtain a fair and impartial trial in said Lucas County for the trial of his cause. It is also alleged that the attorneys of Lucas County would exercise their influence in behalf of the defendant.
In the affidavits in support of the motion, it is claimed that the plaintiffs were unable to secure legal assistance at Chariton, the county seat of Lucas County. Affidavits of several residents of Lucas County were filed in support of the motion. A Resistance was filed, objecting to the change upon the grounds, among others, that the application came too late, it having been filed after a continuance and denying the claims of prejudice.
There is a showing by a half-dozen or more attorneys living in Chariton to the effect that they had not been employed and that no attempt had been made to employ them in the plaintiff's behalf.
The court overruled the motion.
Section 11414 of the Code of 1927 is as follows:
"11414. Application for change. The application for a change of place of trial may be made either to the court or to the judge in vacation, and if made in term time shall not be awarded until the issues are made up, unless the objection is to the court, nor shall such application be allowed after a continuance, except for a cause not known to the affiant before or arising since such continuance, and after one change no party is entitled to another for any cause in existence when the first was obtained."
The fact of the long residence of the defendant in Lucas County, his occupation as a physician and surgeon, and the other statements were matters of common knowledge or easily ascertained at or before the time of the continuance. There is *Page 918
nowhere in the application for a change of venue any claim or proof that the grounds for the requested change were not known to the affiant before the continuance or that they arose since such continuance, as provided in the statute.
There is a claim in the application for a change to the effect that it was impossible for the plaintiff to procure legal assistance in the county. This charge is abundantly met by counter-affidavits of practically all, if not all, of the attorneys of that county.
Upon the whole record in reference to a change of venue, we think the lower court correctly ruled.
[2] II. It is next argued by the appellant that the court committed prejudicial and reversible error in relation to the admission of testimony and the instructions concerning X-ray pictures taken of the amputated stump of the arm. These X-ray pictures were taken by one Dr. Gutch several days after the amputation. The father of the plaintiff secured the amputated member from the defendant and afterwards carried it to Dr. Gutch who made the X-ray pictures thereof.
It appears, without contradiction, that before the amputated member had been turned over to the plaintiff's father, and while the member was still pliable, the defendant had "put the bones back in shape". He had "moulded up the arm", and thereafter stiffness set in. In other words, the X-rayed member was in an entirely different condition when X-rayed than it was at the time the defendant and his associates examined the member before the amputation, and it was in an entirely different condition from that in which it was immediately after the amputation. Moreover, the pictures were not excluded.
The court instructed the jury in relation to said exhibits, as follows:
"There is no evidence that the condition of plaintiff's arm or the relation of the bones to each other as shown by said pictures were the same at the time the defendant was treating the plaintiff as at the time said pictures were taken."
The court further instructed the jury that the said pictures were to be considered only "as evidence of the condition of plaintiff's arm and the situation of the bones therein at the time said pictures were taken." *Page 919
There was no error in this instruction. The jury had the benefit of the pictures for what they were worth. It being undisputed, it was entirely proper for the court to call the attention of the jury to the fact that the arm was not in the same condition when the pictures were taken as when the defendant diagnosed the case and performed the operation. The record conclusively shows that at the time of the diagnosis and the operation, the elbow joint was very severely mangled, a portion of the fractured bone protruded through the flesh, the broken fragments of the bones in and about the elbow joint were separated and as widely scattered as the crushed and mangled flesh would permit. After the amputation, these scattered fragments were "moulded up" and pressed together, after which normal stiffness which followed the death of the member set in, making it an entirely different looking object when photographed than what it was at the time of the diagnosis and the amputation.
[3] III. One of the complaints of the plaintiff is that the amputation was made without taking an X-ray of the arm prior thereto. The court withdrew this question from the jury, and rightly so. As was said in Snearly v. McCarthy, 180 Iowa 81:
"The purpose, of course, in using the X-ray is to diagnose the case, and if this may properly be done without the use of this modern appliance, then no negligence is to be inferred from failure to use one. Moreover, the record here shows that the nature of the fracture was discovered when defendant was first called; hence an X-ray examination would have added nothing."
This language is peculiarly applicable to the case at bar.
While the plaintiff and his young companion undertook in a most general way, as laymen, to describe the appearance of the arm before amputation, nevertheless, the expert testimony of the three physicians is that the mangled, crushed and shattered condition of the elbow of the arm was plainly apparent by sight and feeling, without the use of any X-ray device. Moreover, it is apparent that under the facts in this case, the opinion of the plaintiff and his young companion, based solely upon a mere casual examination of the outward appearances, though without even a close examination of the condition of the arm, raises no conflict as against the positive expert evidence of those skilled in the science of examining and determining conditions of the *Page 920
character such as obtain in this case, who made careful examinations to ascertain the actual conditions.
The evidence of the plaintiff and his companion was offered upon the theory that a surgical operation was not necessary. It was offered in the face of the unanimous and uncontradicted testimony of the physicians, the defendant and another experienced physician who assisted in the operation, and still a third, who gave the anesthetic and observed the arm generally, without giving it detailed close examination. Whether the arm should be amputated without first using an X-ray was not a question to be determined by the jury upon a record such as that. This court said, in Snearly v. McCarthy, 180 Iowa 81:
"As a general rule, it may be safely affirmed that, in matters requiring special skill and training, it is not permissible for laymen as nonexperts to set up any artificial standards as to methods of treatment. This is especially true in surgery; for in that field neither courts nor juries are presumed to know more regarding methods of treatment than ordinary laymen, and that is practically nothing. After hearing the theories, deductions and scientific facts from experts, both judge and jury must often oppose one set of opinions against another and determine which is the more reasonable, but they cannot, without some guide, presume to fix any standard upon which to determine the correctness of any kind of treatment. This is pointed out in many cases from other jurisdictions. Ewing v. Goode, 78 Fed. 442; Getchell v. Hill, 21 Minn. 464; Tefft v. Wilcox, 6 Kan. 46; Farrell v. Haze, (Mich.) 122 N.W. 197. We have adhered to that doctrine in Morrow v. National Mas. Acc. Assn., 125 Iowa 633."
No expert testified an X-ray was necessary. The opinions of the nonexperts under the facts in this case were not material. The court properly withdrew from the jury all claims based upon the failure of the defendant to use an X-ray before performing the amputation.
[4] IV. It is contended that the question whether the arm should have been amputated should have been submitted to the jury. We think not. The undisputed evidence of the defendant and his assistants is that an operation was necessary. The question was one peculiarly within the domain of science. All the *Page 921
professional witnesses agree that the amputation of the arm was within the usual and ordinary practice of the profession, at the time, in Chariton and similar communities and that the amputation was necessary to save the plaintiff's life. There is no testimony whatever that the operation was unskilled or negligently performed. There is no evidence whatever that there was no necessity for the operation. The experts agree that there was an emergency demanding activity.
Dr. Gutch, the plaintiff's witness, is not in any real dispute with the professional witnesses who testified on behalf of the defendant and he frankly admits that:
"Without the examination by the doctor a description of an arm that has suffered a fracture such as is shown in these plates Exhibits 4 and 5 given by a layman and particularly boys 16 and 17 years of age would not be considered reliable data on which medical men could make a diagnosis, and map out their procedure."
It is wholly impractical and unnecessary to quote at length from the testimony regarding the necessity for an amputation. We quote the following from the defendant's testimony:
"The periosteum is a membrane covering the bones of the human body. Its object is to furnish the blood supply to the bone and the periosteum of the bones in this joint, the radius and ulna and humerus were destroyed and when this happens the blood supply is destroyed and you have no opportunity for new bone formation, there is no possibility of a broken bone mending itself. I knew the periosteum was destroyed by examination. There were very many pieces of this bone broken off and loose inside the arm and too many to enumerate. The effect of breaking bones into fragments, such as I have described, is to destroy or badly damage the soft parts. In this individual case the soft parts were lacerated all to pieces inside the arm and all those muscles and capsule of the joint and the periosteum. There was absolutely no opportunity in this case of adopting any method whereby these comminuted fragments of bone could have been put back in their approximately relative position and held there and healed. It could not have been done either by splints nor by opening up the arm and using a fixation of wire or catgut or anything of that kind and without putting these *Page 922
fragments back into their approximately relative position there was no possibility of saving the lower part of the arm on account of the damage to the bones, capsule of the joint, muscles and circulation, and if an attempt had been made to put these fragments into position and hold them there the arm would have rotted off. The flesh and muscles were absolutely destroyed and mashed beyond comprehension. If a piece of the fascia remained in that arm and circulation not restored through it you would have had gangrene and unless gangrene is removed the patient dies."
As was said in Cozine v. Moore, 159 Iowa 472:
"All experts agree that every difficult case presents a zone wherein the question of the best method becomes largely a question of judgment of the attending surgeon under all the apparent circumstances of such particular case."
In Nelson v. Sandell, 202 Iowa 109, this court said:
"The physician is bound to bring to the service of his patient and apply to the case that degree of knowledge, skill, care, and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances and in like localities. Smothers v. Hanks, 34 Iowa 286; Whitsell v. Hill,101 Iowa 629; Ferrell v. Ellis, 129 Iowa 614; Haradon v. Sloan,157 Iowa 608; O'Grady v. Cadwallader, 183 Iowa 178; Flanagan v. Smith, 197 Iowa 273; Furgason v. Bellaire, 197 Iowa 277. He does not impliedly guarantee results. Smothers v. Hanks, supra; Kline v. Nicholson, 151 Iowa 710. Whether the defendant exercised the degree of care and skill required of him cannot be determined from the testimony of laymen or non-experts, since it is only those learned in the profession who can say what should have been done, or that what was done ought not to have been done. Smothers v. Hanks, supra; Kline v. Nicholson, supra; Cozine v. Moore,159 Iowa 472; Snearly v. McCarthy, 180 Iowa 81; Flanagan v. Smith, supra."
No expert in this case testified that an amputation was not necessary or should not have been performed. It must indeed have been apparent to even an inexperienced layman that no other course was open.
Under the record in this case, there was no issue to submit *Page 923
to the jury on the question of the advisability or necessity of an operation.
[5] V. The appellant objects to the instruction of the trial court under which it submitted to the jury the question whether the operation was performed without the consent of the plaintiff and whether the defendant was warranted in performing the operation without the consent of the plaintiff or his parents.
The record shows that the plaintiff was born in Jugo-Slavia in 1912 and came to this country with his parents nine or ten years ago. He had five brothers and sisters. The family first went to Minnesota where they lived for two years. They then lived in Des Moines for two years where the plaintiff went to school. They afterwards lived in Tipperary, Iowa, in 1925. They went to Chicago from there where the boy worked in a can factory and for a paper company. He went to Williamson about Christmas time, 1928.
The plaintiff testified he knew when he was taken into the operating room of the hospital. He was asked:
"Q. What did you think he (the defendant) was going to do when he took you into the operating room? A. I thought he was going to fix it (the arm). Q. And you expected him to do whatever was necessary to fix it, didn't you? A. What was necessary. I don't know what was necessary."
The testimony shows that at the time the plaintiff was taken into the operating room and put under an anesthetic he had a cut on the back of his head approximately 2 1/2 or 3 inches in length from which the patient was bleeding profusely. It was absolutely necessary to stop this flow of blood to save his life. Two other physicians were in attendance, one assisting directly in the operation and the other giving the necessary anesthetic.
It clearly appears from the record that prior to the time the operation was begun, an effort was made by the defendant to get word to the parents of the plaintiff. They lived in another town some eight miles away and did not have a telephone. The father was at work, underground, in a coal mine and the mother was either not at home, or sick in bed, and the record does not very clearly show which. One or more telephone messages were sent to the little town of Williamson and *Page 924
neither the father nor the mother could be found and they were not found for some little time after the operation was completed.
The defendant was confronted with the question whether he would release the plaintiff from the anaesthetic necessarily used in connection with stopping the flow of blood from the wound in the head and sewing up the wound and thereafter ascertain whether the plaintiff and his parents would consent to an amputation of the arm, or perform the amputation under the one anesthetic. Necessarily, if an amputation were to be performed, it would involve the use of a second complete anesthetic. This would greatly add to the shock suffered by the plaintiff.
The crushed and mangled condition of the arm was in itself a menace to the life of the patient. The expert medical opinion was that an emergency existed and an amputation was necessary. The defendant used his best judgment under all the facts and circumstances in the case.
When the young man was put upon the operating table, he expected the surgeon to "fix" his arm. He manifestly did not know what was necessary and so admitted in his testimony. There was here an implied consent to the amputation if, in the skilled judgment of the surgeon, the same was found to be necessary.
The surgeon had promptly ordered word sent to the parents and they could not be reached. The boy was bleeding profusely from the wound in the head. That must be stopped promptly. An anesthetic was necessary for that purpose. The mangled condition of the arm presented to the experts not only an arm which could not be set and saved but, by reason of its condition and the bleeding therefrom, it constituted a menace to the life of the plaintiff. An emergency from accident confronted the defendant and his skilled judgment told him he must amputate at once. In this he was joined by his associate in the operation.
The appellant objects because the instructions did not define "emergency" and "implied consent" and because the instructions were not sufficiently specific in reference to the matter of notice to the parents of the plaintiff. While the plaintiff requested eight instructions, all of which were refused, none of them pertained to a definition of implied consent or emergency.
The court's instructions in reference to the consent of the *Page 925
parents were entirely fair to the plaintiff. In substance, the jury was told, among other things, that, in the absence of an emergency calling for immediate action for the preservation of the life or health of the patient, an operation on a patient in possession of his faculties and in such physical health as to be able to consult about his condition, without the consent, express or implied, of the patient, or someone authorized to act for him, constitutes an assault.
While the courts are not entirely in harmony upon the question of consent to an operation, we think the better reasoning supports the proposition that if a surgeon is confronted with an emergency which endangers the life or health of the patient, it is his duty to do that which the occasion demands within the usual and customary practice among physicians and surgeons in the same or similar localities, without the consent of the patient.
In Delahunt v. Finton, (Mich.) 221 N.W. 168, that court said:
"Plaintiff claims the court erred in his instructions concerning a surgical emergency. It is settled that a surgeon may lawfully perform, and it is his duty to perform, such operation as good surgery demands, in cases of emergency, without the consent of the patient. Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L.R.A. (N.S.) 290, Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A. (N.S.) 609, 8 Ann. Cas. 197. In so doing he is not liable for an honest error in judgment. Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L.R.A. (N.S.) 290, Williams v. Poppleton,3 Or. 139. In conduct, like that of a surgeon, resting upon judgment, opinion, or theory, the ordinary rules for determining negligence do not prevail. Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L.R.A. (N.S.) 290; The Tom Lysle (D.C.) 48 F. 690; Brown v. French, 104 Pa. 604; Williams v. LeBar, 141 Pa. 149, 21 A. 525. One reason for the rule is that, when one acts according to his best judgment in an emergency, he is not chargeable with negligence. Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L.R.A. (N.S.) 290; Staloch v. Holm, 100 Minn. 276, 111 N.W. 264, 9 L.R.A. (N.S.) 712; Williams v. Poppleton, 3 Or. 139; 30 Cyc. 1587; Sherwood v. Babcock, 208 Mich. 536, 175 N.W. 470." *Page 926
In McGuire v. Rix, 225 N.W. 120 (Nebr.), the surgeon was charged with failure to make proper efforts to reduce the fracture by external manipulation and extension before resorting to a surgical operation. The court said:
"How far such efforts should have been pursued under all the circumstances was a question of professional judgment which defendants exercised. In this respect there is nothing to show that they were prompted by unworthy motives or that they acted in bad faith or that they did not possess and exercise the degree of skill and care ordinarily possessed and exercised by physicians and surgeons in Omaha. A capable physician and surgeon in active practice would naturally hesitate to treat a case like plaintiff's, if he could be held liable in damages for abandoning treatment by external manipulation, after having earnestly tried it until his judgment told him that further efforts of that kind would be hazardous and unavailing, before resorting to a surgical operation that is the only alternative. If such were the law, a person in dire need of professional skill in a distressing emergency might be left without necessary attention. The presumption is that a licensed, skillful physician in active practice performs his duties with the requisite degree of skill and care, in absence of evidence to the contrary."
There is in the case at bar no showing whatever of unworthy motives or bad faith. There is no evidence of any attempt to mislead.
In McGuire v. Rix, 225 N.W. (Nebr.) 120, supra, there was evidence on behalf of the plaintiff that the doctors, before giving the plaintiff an anesthetic, told the plaintiff they would be able to reduce the fracture, under an anesthetic, by manipulation. This was strenuously denied by the defense. The court said:
"Each defendant, however, denied the giving of assurance that an operation would not be performed; but, accepting as true her version of what defendants said to her, it does not follow that she did not consent to a necessary operation. She admitted defendants were called to reduce the fracture. At the time of the conversations defendants had not together attempted to reduce the fracture by manipulation. If they made the remarks attributed to them, they may then have considered *Page 927
an operation unnecessary, though they had discreetly prepared for one. Their responsibility for an operation accrued when manipulation failed. The law did not require defendants to restore plaintiff to consciousness for the purpose of procuring consent to surgery — the only alternative in the line of professional duty for which they were called. The use of anesthesia in modern surgery has modified to some extent the ancient rule of the common law requiring consent. Of course, the general rule requires consent of the patient, but consent may be implied from circumstances and an operation may be demanded by an emergency without consent. Delahunt v. Finton, 244 Mich. 226,221 N.W. 168; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A. (N.S.) 439, and cases cited in note, 111 Am. St. Rep. 462, 5 Ann. Cas. 303; Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L.R.A. (N.S.) 290, and cases cited in note; King v. Carney, 85 Okla. 62, 204 P. 270, 26 A.L.R. 1032, and cases cited in note."
In the above case, the court directed a verdict for the defendant.
In Luka v. Lowrie, (Mich.) 136 N.W. 1106, 41 L.R.A. (N.S.) Page 290, an action was brought by the plaintiff to recover damages for amputating plaintiff's foot without his consent or that of his parents. He was a boy fifteen years of age who was injured in an accident. In the course of the opinion sustaining a directed verdict for the defendant, the court said, among other things:
"In an ordinary action for negligence, the fact that defendant has acted according to his best judgment is no defense. * * * In conduct, resting upon judgment, opinion, or theory, however, a different rule has been recognized. * * * `One reasonable justification for this exception is the elementary principle that when a man acts according to his best judgment in an emergency, but fails to act judiciously, he is not chargeable with negligence. Physicians, in the nature of things, are sought for and must act in emergencies, and, if a surgeon waits too long before undertaking a necessary amputation, he must be held to have known the consequences of such delay, and may be held liable for the resulting damage', — citing Du Bois v. Decker, 130 N.Y. 325, 29 N.E. 313, 14 L.R.A. 429, 27 Am. *Page 928
St. Rep. 529; Martin v. Courtney, 75 Minn. 255, 77 N.W. 813. It would be unreasonable to hold a properly qualified physician or surgeon responsible for an honest error of judgment, where, as in the instant case, he is called upon to act in an emergency and must choose between two courses of action, either one of which involves the possibility of the gravest hazard to the patient. As was said by Upton, J., in Williams v. Poppleton, 3 Or. 139: `In cases like this the court and jury do not undertake to determine what is the best mode of treatment, or to decide questions of medical science upon which surgeons differ among themselves.' It is, we think, very clear upon this record that the question presented to the defendant, at the moment he was called upon to act, was one of judgment only. Instant action of some sort was imperative. * * * Called upon to act under such circumstances, and to determine which of two courses (one entailing certain mutilation and the other probable death to the patient) should be followed, it is apparent that the defendant is not bound by the ordinary rules of negligence, but is entitled to insist that, having used his best judgment, he is not liable. * * * But defendant testifies, and in this he is not contradicted, that he made inquiry for relatives of the plaintiff and was told that none were in the hospital. Suppose that his informant was in error (which is not certain) the defendant had a right to rely upon the information, and to act in the emergency upon the theory that to obtain consent was impracticable. In Pratt v. Davis,224 Ill. 309, 79 N.E. 565, 7 L.R.A. (N.S.) 609, 8 Ann. Cas. 197, it was said: `In such event the surgeon may lawfully, and it is his duty to, perform such operation as good surgery demands without such consent.'"
Other cases might be quoted, but the foregoing, with the cases cited, is sufficient.
In this complicated life which we are now living, surrounded on every hand by complicated machinery and rapid transportation of all sorts, with more or less serious accidents occurring very frequently, with persons, young, middle-aged and old, carried in great numbers daily into offices and hospitals, more or less injured and mangled, the rules of conduct on the part of trained and educated expert surgeons must be fixed to reasonably fit the conditions. If the surgeon, confronted by an emergency, is not to be permitted, after having fairly *Page 929
and carefully examined the situation, to exercise his professional judgment in his honest endeavor to save human life, then the public at large must suffer. If the surgeon is not to be permitted to honestly use his best judgment upon the necessity for an operation, without waiting to get the consent of either the patient or his parents, then is the skilled hand of the expert stayed by an unreasonable rule, often to the detriment of the patient and humanity at large.
Upon the facts in the case at bar, there is no merit in the appellant's complaint on this subject. Indeed, upon the facts of this case, the court might very properly have directed a verdict for the defendant.
VI. The foregoing disposes of all of the errors properly presented and argued by the appellant. There are a number of other questions raised, but they are not presented within the requirements of the rules of this court and will not be considered.
It follows that the cause must be, and is, — Affirmed.
ALBERT, C.J., and EVANS, MORLING, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430227/ | At about four o'clock in the afternoon of October *Page 709
28, 1929, the plaintiff-appellee Richard Steele, while riding on a bicycle over the Cedar River bridge in Charles City, was struck by a towed truck, belonging to the defendant-appellant Marvin F. Schlick, being towed over the bridge by an automobile owned and driven by George Brada, defendant and appellant. This towing car was pulling the towed truck over the bridge in the same direction that the bicycle was traveling. The bridge extends across the river in a northeasterly and southwesterly direction. It is 258 feet long and 19 feet one inch wide.
Appellee, who was working for the Sherman Nursery, claims to have ridden his bicycle onto the bridge from the south and had proceeded on the structure about thirty feet when struck by the towed truck. Appellant George Brada operated a garage, and had been called out into the country to tow in the said truck owned by the appellant Marvin F. Schlick. The truck was unable to run on its own power. A wide band was used to attach the defective truck to the towing car. Dale Reetz, employee of the appellant Marvin F. Schlick, was at the wheel of the towed truck to manage it while being towed. When appellant Brada's towing automobile approached appellee on his bicycle, the former sounded the horn as a warning to the latter. Upon hearing the automobile horn of the towing car, appellee turned to his left and permitted appellant Brada's towing car to pass to the right, but he was struck by the towed truck.
There is a dispute at this point concerning what, if any, warning appellee had of the approaching towed truck. On the one hand appellants claim that a warning was given the appellee by Dale Reetz, who, as before explained, managed the towed truck; while on the other hand appellee contends that he heard no such warning. Appellee says the towed truck crashed into him without warning. Furthermore, it is claimed by appellee that the appellant Brada was moving the towing car at an excessive rate of speed. Again, it is said by appellee that the appellant Schlick was negligent: First, because no warning of the approaching truck was given; second, because the attendant Dale Reetz failed to properly put on the brakes; and third, because the towed truck was not properly controlled by the said Reetz.
Both appellants pleaded that the appellee was guilty of contributory negligence. That is true, the appellants declare: *Page 710
First, because the appellee turned to the left, rather than the right, to permit the car and truck to pass; and second, because when turning to the left he did not remain in a place of safety until both car and truck had passed, but, after the towing car had gone by, negligently swerved to the right into the on-coming truck.
[1] Throughout its instructions, with the exception of one paragraph, the district court told the jury that the appellee could not recover if his negligence contributed to the injury. In paragraph six, however, the trial court interposed another theory, and because of this novation the appellants complain. This new theory in effect amounted to an instruction on the last clear chance doctrine. Complaint was made of this by the appellants because a cause of action on that basis was neither pleaded nor proven. To understand the instruction fully, it will be necessary to consider the various portions thereof.
First the district court told the jury that the appellants as well as the appellee had a right upon the highway on the occasion in question. Then that court told the fact-finding body that if the appellants overtook the appellee "when so traveling (in the manner and way before explained), and desired to travel faster than he (appellee) was traveling, they (appellants) had a right to signal him (appellee) by sounding the horn to warn him of their (appellants') intention to pass him (appellee) on the left side, in which case it would have been his (appellee's) duty remain on the right side until they passed him, unless as he (appellee) claims, they (appellants) were so close upon him (appellee) and that they (appellants) were going at such a speed as to render it dangerous to him (appellee) to remain where he was, in which case he (appellee) would have a right to do whatever ordinary care would require under the circumstances in the way of increasing his (appellee's) own speed or turning to the left side of the street in order to escape danger; and if you find that he (appellee) did this, and passed to the left and remained and traveled on the left of them (appellants) as far as reasonable care would require, he (appellee) would not be guilty of contributory negligence in that respect."
Apparently the district court was asking the jury to apply that rule of law which will not permit a defendant to complain after he has put the plaintiff in a place of danger because the *Page 711
latter does not act discreetly in avoiding the catastrophe. See Lein v. John Morrell Co., 207 Iowa 1271; Elmore v. Des Moines City Railway Co., 207 Iowa 862; Kern v. Des Moines City Railway Co., 141 Iowa 620. During the discussion in the Kern case it was said:
"If it (the Railway Company) created the peril, it can not be heard to say, `Well, you do not act discreetly in avoiding it.'"
The effect of the district court's instruction up to this point is that the appellee would not necessarily be negligent in turning to the left rather than the right. Nowhere, however, up to this place is there indication in the instructions anywhere that the appellee could recover were he guilty of contributory negligence. Following the foregoing statement in Instruction Six, the trial court then proceeds to say that the appellants are not liable unless they were guilty of some ground of negligence charged in the appellee's petition and proven in the evidence. Immediately thereafter, in the same instruction, the district court then proceeds with what in effect is a charge on the last clear chance. Such portion of the instruction is as follows:
"But if you (the jury) find the defendant (appellant) Brada warned him (appellee) by sounding of the horn, but did not warn him (appellee) in time as required by law or the exercise of ordinary care at the rate of speed at which they (appellants) were traveling or was going at a greater speed than permitted by law or the exercise of such care under the conditions then existing, and that the striking of plaintiff (appellee) resulted from this, after the defendants (appellants) discoveredplaintiff's (appellee's) peril, they (appellants) would still beliable even though you find plaintiff (appellee) was negligent."
(The italics are ours).
Manifestly the italicized portion of that charge is inconsistent with all the other instructions. In this italicized portion of the instruction the jury was told that the appellee could recover under the circumstances named even though he were guilty of negligence. If that portion of the instruction is not intended to present the last clear chance doctrine, it is clearly erroneous and entirely inconsistent with all the remainder of the court's *Page 712
charge to the jury. It is erroneous because a plaintiff cannot recover if his own negligence contributed to the injury unless it be under the last clear chance doctrine. So, too, that charge is contrary to other instructions, and therefore inconsistent unless it presented the last clear chance theory. Naturally the jury would be confused and misled by the instruction unless it embodies the theory of the last clear chance. While it is true that in the concluding sentence the district court in effect says to the jury that the appellee cannot recover if he negligently turned his bicycle into the truck, yet that sentence does not remove the error from the instruction. Even with that sentence considered, the charge is still inconsistent and erroneous if it does not present the last clear chance doctrine. Clearly the district court did attempt to present such doctrine. In so doing, however, the form of the instruction does not contain all the elements of the doctrine.
[2] Appellants therefore contend that the last clear chance doctrine has no place in this case because there is neither pleading nor proof to support it. Regardless of what may have been vaguely said in Crowley v. Burlington, Cedar Rapids
Northern Railway Company, 65 Iowa 658, it now is the established law of this state that the last clear chance doctrine cannot be presented to the jury without a supporting pleading. Phelan v. Foutz, 200 Iowa 267. There we said, reading on page 270:
"When one bottoms his action and seeks to recover on the doctrine of the last clear chance, he should plead the facts giving rise to such doctrine."
Appellee's petition in the case at bar nowhere contains allegations sufficient to present this doctrine. For that reason, then, the instruction should not have been given.
[3] Assuming, without deciding, that the evidence in the case at bar presented a jury question under the last clear chance doctrine, the instruction nevertheless was erroneous in one, among other particulars. Underlying the last clear chance doctrine is the fundamental prerequisite that the defendant must discover the plaintiff's perilous position in time to avoid injury by the exercise of ordinary care. Gilliam v. Chicago, Rock Island Pacific Railway Company, 206 Iowa 1291; Claar Transfer *Page 713
Company v. Omaha C.B. St. Railway Company, 191 Iowa 124; Disher v. Kincaid, 193 Iowa 83.
Nevertheless, the district court in the case at bar told the jury that the appellee could recover regardless of his negligence, if the appellants propelled their motor vehicles at an excessive rate of speed after discovering the former's peril. At no place in the instructions is it said that in order to make the appellants liable they must discover appellee's peril in time to avoid the injury by the use of ordinary care. Suppose that the appellants were negligent in driving at an excessive rate of speed, but further assume that appellee was guilty of contributory negligence barring his recovery, then under the last clear chance doctrine there could be no recovery for the latter's injury unless the appellants, when operating the car and truck, after discovering his condition of peril could have avoided the injury by the exercise of ordinary care.
Disregarding the law, however, in that respect, the district court told the jury that the appellee could recover if the appellants operated their motor vehicles at an excessive rate of speed without saying anything about their having time to avoid the accident by the use of ordinary care after discovering his peril. Perhaps the motor vehicles were going at an excessive speed at the very moment appellee's peril was discovered and no time remained in which to avoid injuring him. Therefore, for the reason pointed out, at least, the instruction is erroneous. Obviously the appellants were prejudiced. See Doherty v. Des Moines City Railway Company, 137 Iowa 358.
Wherefore, the appellants are entitled to a new trial, and the judgment of the district court accordingly is reversed. — Reversed.
FAVILLE, C.J., and EVANS, MORLING, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211034/ | This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1169
In the Matter of the Temporary Immediate Suspension
of the Family Child Care License of Angie Mattison.
Filed May 23, 2016
Affirmed
Halbrooks, Judge
Department of Human Services
OAH File No. 20-1801-32519
Jonathan Geffen, Arneson & Geffen, PLLC, Minneapolis, Minnesota (for appellant
Angie Mattison)
Lori Swanson, Attorney General, Kristine Hartman Word, Assistant Attorney General,
St. Paul, Minnesota; and
Karin Sonneman, Winona County Attorney, Susan E. Cooper, Assistant County
Attorney, Winona, Minnesota (for respondent Minnesota Department of Human
Services)
Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Toussaint, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HALBROOKS, Judge
Relator challenges respondent commissioner of human service’s temporary
immediate suspension of her child-care license based on findings of improper
supervision, arguing that the commissioner’s decision is unsupported by substantial
evidence. We affirm.
FACTS
On May 6, 2015, relator Angie Mattison was caring for four young children,
including her 25-month-old son, M.M., in the licensed daycare that she operated out of
her home. Around 9:00 a.m., Mattison took the children outside to the fully fenced yard.
She remained in the front yard with three of the children, while M.M. played in the
backyard. Mattison believed that she could see and hear M.M. from the front corner of
the front yard. At some point, M.M. left the backyard through a gate that was not fully
secured. When Mattison realized that M.M. was missing, she left the three other children
alone in the yard and ran to a neighbor’s house, seeking assistance. Meanwhile, two to
two-and-a-half blocks away, a driver spotted M.M. running toward a busy street. The
driver pulled over, stopped M.M., called the police, and walked M.M. home to Mattison.
Later that day, a child-protection worker and a licensing worker from Winona County
Community Services made an unannounced visit to Mattison’s home, and respondent
Minnesota Department of Human Services ordered the temporary immediate suspension
of Mattison’s child-care license.
2
Mattison appealed, and a hearing was held. The administrative law judge
recommended that the temporary immediate suspension remain in effect. The
commissioner of human services subsequently issued a final order affirming the
temporary immediate suspension of Mattison’s license. This certiorari appeal follows.
DECISION
Administrative-agency decisions are presumed to be correct and “may be reversed
only when they are arbitrary and capricious, exceed the agency’s jurisdiction or statutory
authority, are made upon unlawful procedure, reflect an error of law, or are unsupported
by substantial evidence in view of the entire record.” In re Revocation of the Family
Child Care License of Burke, 666 N.W.2d 724, 726 (Minn. App. 2003); see also Minn.
Stat. § 14.69 (2014). Substantial evidence is “(1) such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion; (2) more than a scintilla of
evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence
considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control
Agency, 644 N.W.2d 457, 466 (Minn. 2002).
“A reviewing court must defer to the agency’s fact-finding process and be careful
not to substitute its findings for those of the agency.” Burke, 666 N.W.2d at 726. We
will not retry facts or make credibility determinations. In re Appeal of Rocheleau, 686
N.W.2d 882, 891 (Minn. App. 2004), review denied (Minn. Dec. 22, 2004). But we are
not bound by the agency’s ruling on matters of law. Burke, 666 N.W.2d at 726.
By statute, the commissioner shall immediately temporarily suspend the license of
a child-care provider if the provider’s actions, failure to comply with law or regulations,
3
or program conditions “pose an imminent risk of harm to the health, safety, or rights of
persons served by the program.” Minn. Stat. § 245A.07, subd. 2(a)(1) (Supp. 2015). A
provider may demand an expedited hearing to consider whether the commissioner has
shown reasonable cause for the immediate suspension. Id., subd. 2a(a) (Supp. 2015).
“Reasonable cause” requires “specific articulable facts or circumstances which provide
the commissioner with a reasonable suspicion that there is an imminent risk of harm to
the health, safety, or rights of persons served.” Id.
Minnesota law requires that a provider must be “within sight or hearing of an
infant, toddler, or preschooler at all times so that the caregiver is capable of intervening
to protect the health and safety of the child.” Minn. R. 9502.0315, subp. 29a (2015). The
commissioner found that Mattison did not provide proper supervision because she was
not in sight or hearing of M.M., which allowed him to leave the backyard and wander
into the community. Therefore, the commissioner concluded, reasonable cause existed to
believe that Mattison failed to act in compliance with the law and posed an imminent risk
of harm to the children in her care. Minn. Stat. § 245A.07, subd. 2a(a).
Mattison argues that the commissioner’s decision is not supported by substantial
evidence. She contends that the commissioner’s determination on imminent risk of harm
cannot be reconciled with the child-protection investigator’s decision not to recommend
immediate removal of M.M. or his siblings from the home. We disagree. Although the
child-protection worker and licensing worker conducted their visit together, they served
different functions and applied different standards. Compare Minn. Stat. § 245A.07,
subd. 2a(a) (requiring “reasonable cause” to believe the daycare provider poses an
4
imminent risk to the health, safety, or rights of the persons served to affirm an order for
the temporary immediate suspension of a family child-care license), with Minn. Stat.
§ 260C.151, subd. 6 (2014) (allowing a court to order an officer to take a child into
immediate custody if “there are reasonable grounds to believe the child is in surroundings
or conditions which endanger the child’s health, safety, or welfare that require that
responsibility for the child’s care and custody be immediately assumed by the responsible
social services agency and that continuation of the child in the custody of the parent or
guardian is contrary to the child’s welfare”).
Mattison also argues that there is no “imminent risk of harm” because her back
gate has been rendered inoperable. The commissioner disagreed, concluding that
securing the back gate was less important than improvements to supervision practices,
which Mattison had no plans to make. This conclusion is supported by Mattison’s own
testimony that, despite this experience, she would not change her supervision practices
and would continue to allow the children to play in the backyard and the front yard at the
same time. Mattison also argues that there is no threat of imminent harm because she
was not planning to resume daycare operations until December 2015. But without the
temporary immediate suspension of her license, Mattison could have elected to reopen
her daycare at any time.
Finally, Mattison argues that the suspension of her license is essentially an
imposition of strict liability, because M.M. left the yard despite being within Mattison’s
sight and hearing. But the commissioner found, based on Mattison’s testimony, that she
did not see M.M. leave the yard. And although Mattison testified that she thought she
5
could hear what was happening in the backyard, she did not hear M.M. leave the yard.
Thus, the conclusion that Mattison was not in sight or hearing of M.M. is supported by
substantial evidence.
The commissioner concluded that Mattison’s inadequate supervision coupled with
her refusal to change her supervision practices provided reasonable cause to believe that
her failure to comply with the applicable standard for supervision poses an imminent risk
of harm to the health, safety, or rights of the children in her care. Because the
commissioner’s decision is supported by substantial evidence in view of the entire record,
we affirm.
Affirmed.
6 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211834/ | Court of Appeals
of the State of Georgia
ATLANTA, June 01, 2016
The Court of Appeals hereby passes the following order
A16I0208. JOE ENTERPRISE, LLC, d/b/a IHOP RESTAURANT v. JANET KANE.
Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be
hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of this
order. The Clerk of Superior Court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
LC NUMBERS:
14V441
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, June 01, 2016.
I certify that the above is a true extract from the minutes of
the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk. | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430235/ | The operation of the machine is described in appellant's brief as follows:
"The machine in question is operated as a mint-vending machine, and upon the deposit of a nickel, uniformly releases one package of mints. If the compartment is empty, the slot receiving the money automatically returns same to the depositor. These facts are conceded in this case, and the only proposition upon which it is claimed this machine is a gambling device is that it occasionally releases certain brass discs or tokens, which are stamped on one side, `good for amusement only,' and on the other side, `no cash value,' which remain the property of the vendor, and which can be used to replay the machine for the customer's sole amusement. Nothing of value and no merchandise is ever vended with the token. The only function it serves is to operate a reel upon which fortunes and funny sayings appear, which can be read for the customer's amusement. It is further conceded that the vending machine was sold to be used as above indicated, and that no tokens or discs were ever exchanged for any cash or anything of value." *Page 464
The foregoing is supplemented in appellee's brief as follows:
"This machine is so constructed that, upon placing a nickel in the slot provided therefor, a package of mint confection is released from the machine. In addition to the mints, there are, at times, determined only by chance, also released brass discs or tokens. The tokens are stamped on one side, `no cash value,' and on the other side, `good for amusement only.' It cannot be determined in advance at what times nor in what quantity these tokens will be released. One of these tokens, on being placed in the slot of the machine, will spin a set of reels, on which are printed certain phrases, and which, when they stop spinning, form sentences purporting to give humorous advice to the player. In addition to spinning these reels, a token will, when played sometimes, at uncertain intervals, release other tokens of like kind, which may also be replayed in the machine."
From the foregoing it will be noted that the machine in question consists in its major part of a mere slot-vending machine, used for the sale of mints. To this, however, is added an accessory which is quite independent in its purpose, and has no necessary connection with the vending of mint packages.
The contention of the appellant is that the extra discs that are occasionally cast into the hand of the operating patron have no value, and that they are so stamped, and that, therefore, they cannot be used as a gambling device. The stamping of the discs had no effect upon their character or upon their purpose. If it were conceded that the disc had no value, yet the nickel which it induced from the patron did have value. The use of the discs had a manifest purpose. Such purpose was to stimulate the expectation of the buying patron that he might receive something more than a package of mints. The only apparent economic reason for their use was that they would induce a larger deposit of nickels in the slot than would otherwise ensue. Among the patrons of the machine, some, if not many, of them might prefer the feature of amusement, rather than the package of mints. If these discs were made "good" for admission to a movie or other place of amusement, their character as a gambling device would be readily recognized. Something akin thereto was their actual function as used. The "movie" was furnished instanter in response to the call of the disc. It must be held, *Page 465
therefore, that the machine in question was a gambling device, within the meaning of the statute. It may be conceded that the gambling feature was of a very mild form, and that the offense might well be pardoned upon a plea of penitence and of purpose to desist. But it furnishes poor standing ground for the intervener to ask of the courts a certificate of character for such device. The statute is plain and comprehensive in its terms, and affords no excuse for its misunderstanding. It leaves no field of doubt or debate as an arena for a contest of wit or ingenuity as to whether a gambling device may be so contrived as to conceal its essential character and yet so as to function successfully. Our own cases on this subject have been a successive consideration of ingenious attachments intended by the inventor as a near approach to the prohibitive line. Of course the distance from the inner to the outer side of a line is not great. But in the cases which have so far been brought before us, no inventor has been able to contrive a non-gambling device which functions nevertheless as agambling one.
The device under consideration herein has had the attention of some of the courts in other jurisdictions, and has been there condemned. Harvie v. Heise, 150 S.C. 277 (148 S.E. 66); City ofMoberly v. Deskin, 169 Mo. App. 672.
The judgment of the district court is — Affirmed.
MORLING, C.J., and FAVILLE, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430237/ | The defendant is charged by a county attorney's information with the crime of embezzlement by public officer. He was tried, and a verdict of guilty was returned by the jury, and judgment pronounced thereon by the court. The usual motions to set aside verdict and for a new trial and motion in arrest of judgment were made by the defendant and overruled by the court. Several grounds of error are cited in appellant's brief, but they all have to do with two propositions: (1) Was the defendant a public officer? and (2) if he was such, was proper demand made on him by the person entitled to receive the money claimed to have been embezzled?
[1] The facts necessary to a correct understanding of the legal propositions involved are these: The defendant for a number of years prior to September 20, 1926, had been holding the office of chief clerk in the men's reformatory at Anamosa, Iowa. On or about this date two members of the state board of control, Mr. McColl and Mr. Strief, visited this institution, and, at what might be termed an informal meeting of these two members of the board with the warden of the institution, the matter of the necessity of additional help in connection with the management of the industries which were being operated at the reformatory was taken up, talked over, and considered by them. As a result of this meeting, it is claimed by the state, the office of auditor and clerk of industries of the men's reformatory was created, and the warden was directed to appoint such officer. It is not claimed that any formal meeting of the board was held, with a secretary present to record the proceedings, or that any motions were made and seconded and a formal ballot taken thereon and minutes taken of the proceedings in the regular way; but it is claimed that, with a majority of the *Page 1157
members of the board present, they did, in fact, have a meeting of the board and unanimously designated, created, or brought into being a new office. This claim of the state is borne out by the testimony of those who were present at this meeting.
There is no evidence to contradict the testimony of the state, the defendant relying entirely upon the fact that there is no record of such action, and that it cannot be established by parol. The defendant also claims that the testimony does not bear out the state's theory that there was in fact a meeting of the board of control, and that the action of two members was not such a meeting as the law contemplates, and the first and only really serious legal proposition raised by the defendant is in reference to this question.
The law with reference to the government of state institutions is found in chapter 167 of the 1931 Code of Iowa (section 3287 et seq.), and the state institutions listed in this chapter, including the men's reformatory at Anamosa, are placed under the control of the board of control, and such board is given "full power to contract for, manage, control, and govern, subject only to the limitations imposed by law" (section 3287) all such state institutions. Section 3290 provides:
"The board shall prescribe such rules, not inconsistent with law, as it may deem necessary for the discharge of its duties, the management of each of said institutions, * * *. In the discharge of its duties and in the enforcement of its rules it may require any of its appointees to perform duties in addition to those required by statute."
Section 3292 provides:
"The board shall appoint a superintendent, warden, or other chief executive officer of each institution under its control who shall have the immediate custody and control, subject to the orders of the board, of all property used in connection with the institution."
Section 3293 provides:
"The board shall determine the number and compensation of subordinate officers and employees for each institution. Such officers and employees shall be appointed and discharged by the chief executive officer."
Section 3295 provides: *Page 1158
"The board shall require its secretary and each officer and employee of said board, and of every institution under its control who may be charged with the custody or control of any money or property belonging to the state, to give an official bond, properly conditioned, and signed by sufficient sureties, in a sum to be fixed by the board, which bond shall be approved by the board, and filed in the office of secretary of state. It may require bonds of other officers and employees not enumerated above."
Section 9296 provides:
"The board shall, annually, with the written approval of the governor, fix the annual or monthly salaries of all officers and employees for the year beginning July first of said year, except such salaries as are fixed by the general assembly." etc.
It will be observed from the foregoing statutory provisions that there are no fixed statutory rules or regulations governing the board as to form and manner or time and place of holding its meetings for the transaction of its business. Matters of this kind are left in the absolute control of the board. The board consists of three members, two of which would constitute a quorum to transact business. There is nothing in the statute forbidding an impromptu meeting of the board and nothing in the law forbidding such impromptu meeting from taking place at any of the state institutions. We think it can fairly be said under the testimony of the warden and Mr. McColl, one of the members of the board, who was present, that such an impromptu meeting was in fact held by the board at or about the date of September 20, 1926, at the men's reformatory at Anamosa, and that at that meeting the matter of additional help in connection with the management of the industries was considered; that the two members of the board present at this meeting agreed and decided that they should have an office specially for the purpose of looking after the industries of the men's reformatory, and that they created and designated such office under the title of "Auditor and Clerk of Industries" at this meeting, and directed the warden to appoint some one to fill such office. This was testified to by both McColl and the warden, who were present at the meeting. There being no record made of the proceedings, oral testimony was admissible for the purpose of showing what was done.
It must be borne in mind that this action of the board was taken nearly eight years before the filing of the information in this *Page 1159
case. Nothing was reduced to writing, and, in the very nature of things, oral testimony as to what took place, standing alone, would not be very satisfactory, but this oral testimony is corroborated by the following record evidence shown by the abstract: On the 20th day of September, 1926, the warden wrote a letter to the board in which he said:
"Pursuant to the instructions given me by Senator McColl and Mr. Strief while here on their recent visit, I have today appointed J.M. Conway to the new position of auditor and clerk ofindustries. * * * Please advise the amount of bond you wish Mr. Conway to give, so he can forward bond at once."
Under date of October 6, 1962, the records of the board of control recite:
"Bond of James M. Conway, Auditor and Clerk of Industries, Men's Reformatory, in the sum of $10,000.00 with National Surety Company as security approved and ordered placed on file with Secretary of State."
This record was signed by the chairman and secretary of the board. At the time of the trial of this case, this bond was found among the records and files in the office of the secretary of state, as provided by law. It bears date of September 28, 1926, and designates the office for which the principal named in the bond was appointed as "Auditor and Clerk of Industries, Men's Reformatory, Anamosa, Iowa," and shows his appointment was for an indefinite term from the 20th day of September, 1926, until his successor is appointed and qualified. The bond bears the signature of James M. Conway and the National Surety Company, and bears the stamp of approval of the board of control under date of October 4, 1926. On the back of the bond is the usual form of oath of office which every public officer under our statutes is required to take and subscribe, and this oath is sworn to under date of September 30, 1926, by James M. Conway, in which we find this language:
"I will faithfully, etc., discharge the duties of the office of Auditor and Clerk of Industries to which I have been appointed." etc.
The evidence shows that this defendant entered upon the discharge of his duties, and from that time forth designated himself *Page 1160
in all the papers and proceedings as "Auditor and Clerk of Industries." Monthly reports were made by him of the amount of money received and the disposition made thereof, and a copy of this report sent to the treasurer of state with a remittance of the monthly balance, and on each and all of these reports his office is designated as "Auditor and Clerk of Industries" and his official signature is that of auditor and clerk of industries. The evidence shows that it was his duty, and that he did in fact collect the money that came in and was paid out in connection with the industries of this institution, and that this continued until the end of the year 1931.
The record of the fixing of the annual salary of all officers of state institutions, required to be made by the board and approved by the governor, lists and designates this office as auditor and clerk of industries, and the salary is fixed at $200 a month. These reports are signed by the chairman and secretary of the board and bear the approval and signature of the Governor of the state. This evidence all points to the fact that such office was in fact created and established by the board, and that the salary was fixed at $200 a month. The office which this defendant held immediately prior to his appointment as auditor and clerk of industries was that of chief clerk, an office created by statute, the salary of which was $150 a month. His appointment to this new office was, therefore, an elevation or promotion, and was entitled to be classified at least equal to, if not in a higher class than, that of chief clerk. The evidence shows that these two offices occupied the same room.
It is true, as shown by the evidence, that there were no formal prescribed duties, except the testimony shows that the details of fixing and prescribing the duties of this office were left to the chief accountant of the board, and the evidence discloses that there was correspondence between the chief accountant and the occupant of this office with reference to such duties. Furthermore, the duties required of such an officer necessarily inhere in and pertain to the administration of the office itself, and, in addition thereto, the statute, section 3330 of the Code, provides:
"The chief executive officer of each institution shall, on the first day of each month, account to the board for all state funds received during the preceding month, and, at said time, remit the same to the treasurer of state." *Page 1161
The chief executive officer was the warden, but, when this new office of auditor and clerk of industries was created, it imposed by implication upon such auditor the same duties and responsibility with reference to funds received by him in connection with such industries.
While this court does not wish to place its stamp of approval upon the "loose-end" methods which the evidence in this case discloses in the manner of transacting the business of the board of control at the time in question, yet, we think, and therefore hold, that there is sufficient evidence to warrant the court in finding as a matter of law that the office of auditor and clerk was in fact created, and that J.M. Conway, the defendant, was appointed to fill this position and was a public officer within the meaning of the statute under which the information in this case was found.
It would serve no useful purpose to review the holdings of the various courts as to what constitutes a public office. Our court went into this matter quite thoroughly in the case of State v. Spaulding, 102 Iowa, p. 639, 72 N.W. 288, 290, wherein the authorities are fully reviewed on this subject, and it will be found by an examination of these authorities that the definition of a public office varies very widely in different jurisdictions. A definition which we think is quite appropriate to this case is found in Commonwealth v. Evans, 74 Pa. St. 124, wherein a public officer is defined as follows:
"All persons who, by authority of law, are intrusted with the receipt of public moneys, through whose hands money due to the public, or belonging to it, passes on its way to the public treasury, must be so considered [as public officers], by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be special or general, transient or permanent."
And in the Spaulding case, supra, Chief Justice Kinne, speaking for the court, after considering all authorities, laid down the following rules for determining whether one is a public officer within the contemplation of our statute relating to embezzlement of such officer:
"(1) The office itself must be created by the constitution of the state, or authorized by statute. (2) If authorized by statute, its creation may be by direct legislative act; or the law making power, when not inhibited by the constitution or public policy from so *Page 1162
doing, may confer the power of creating an office upon official boards or commissions which are themselves created by the legislature, when such office is necessary to the due and proper exercise of the powers conferred upon them, and the rightful discharge of duties enjoined. (3) A position so created by the constitution, or by direct act of the legislature, or by a board of commissions duly authorized so to do, in a proper case, by the legislature, is a public office. (4) To constitute one a public officer, at least within the purview of the criminal law, so that he may be liable for the misappropriation of the public funds, his appointment must not only have been made or authorized as above stated, but his duties must either be prescribed by the constitution or the statutes of the state, or necessarily inhere in and pertain to the administration of the office itself. (5) In any event the duties of the position must embrace the exercise of public powers or trusts; that is, there must be a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public. (6) The following, among other requirements, are usually, though not necessarily attached to a public office: (a) An oath of office; (b) salary or fees; (c) a fixed term of duration or continuance."
That the board of control was authorized by the legislature to make and create this office is plainly within the provisions of section 3293 of the Code. The argument of counsel for defendant is far-fetched and not very persuasive, wherein they contend that this defendant was a mere employee, and that this office did not rise to the dignity of a public office in view of the fact that he was intrusted with the handling of all funds, that he personally had charge of all moneys that came in and were paid out under the orders of the board of control, and made the monthly reports in connection with the industries to the board of control and to the state treasurer, and that this continued from the date of his appointment until the first day of January, 1932.
The chief accountant of the board of control, who had been such accountant for more than twenty years, testified that the defendant, as auditor and clerk of industries, had charge of the industrial accounting, the collecting of cash and accounting for the cash; that, as accountant, he frequently made trips to the various institutions, and, when he visited the men's reformatory to check over the books to reconcile the cash with the reports, that he always went to Mr. Conway, the defendant; that he had the cash locked in *Page 1163
the cash drawer, and he brought it out and it was counted by the accountant. The evidence further shows that practically all the entries in the cash records during all this time were made in the handwriting of this defendant, and that, as to all the entries made by other employees, there was no discrepancy in any of such items.
[2] The second major proposition urged by the defendant in his assignment of errors relates to the demand made upon the defendant for an accounting. It is the contention of counsel for defendant that the duty of making the monthly reports and accounting is placed upon the warden, the chief officer, and that therefore the demand should necessarily come from the warden. The information charges that demand for payment was made by W.H. Frazer, warden and chief executive officer of the men's reformatory, and by Leo J. Wegman, treasurer of the state of Iowa, they being the person or persons entitled to receive said money. On motion of the defendant, the state was required to elect upon which of the demands made upon defendant it would stand, and the state elected to stand upon the demand made by Leo J. Wegman as treasurer of the state of Iowa. That demand was made by the treasurer is fully proven and is not controverted by the defendant, but counsel strenuously insist that he was not the proper officer to make the demand. The necessity for making demand of the officer charged with the embezzlement is found in section 13029 of the Code, which recites:
"And in case he fails or neglects to account therefor upon demand of the person entitled thereto."
Section 3330 requires:
"The chief executive officer of each institution shall, on the first day of each month, account to the board for all state funds received during the preceding month, and, at said time, remit the same to the treasurer of state."
The embezzlement upon which the state elected to stand was committed during the month of June, 1931, and is shown by the report dated June 30, 1931. On the first day of July, 1931, the money in the hands of this defendant, as shown by his monthly report for the month of June previous, was payable to the state treasurer, and the officer having charge of making the report and making the remittance is charged with making it to the treasurer of state under section 3330 of the Code. This new office created placed this duty upon the auditor and clerk of industries, and he assumed *Page 1164
that duty during all the time that he was such officer and made the reports, one of which was mailed to the board of control, and another of which was mailed with the remittance to the state treasurer.
The cases of State v. McKinney, 130 Iowa 370, 106 N.W. 931, and State v. Berg, 200 Iowa 627, 204 N.W. 441 are not applicable to the situation in this case. It is true that section 3330 places upon the warden, the chief officer, the duty of accounting to the board for all state funds received during the preceding month and at said time of remitting the same to the treasurer of state. But this duty only referred to funds which came into the hands of the warden. The money embezzled in this case never reached the hands of the warden. The warden never made the report for June, 1931. It was made by this defendant. There is no provision in the statute for the outgoing warden to turn over the cash in his hands to his successor, as was the case in State v. McKinney, supra. The successor of the then warden is not entitled to receive the money of his predecessor. That money is payable direct to the state treasurer as the officer entitled to receive it, and, whether he was entitled to receive it from the warden or from the auditor and clerk of industries, he was most surely entitled to receive it. He is the only officer named in the statute who is entitled to receive it. Therefore it was proper that the demand should come from the state treasurer.
The errors assigned by the defendant with reference to the overruling of his motion to direct a verdict and his motion for new trial and in arrest of judgment, and his complaint of the refusal of the court to give certain requested instructions and of the giving of certain instructions by the court, are all based upon and have to do with the two assignments of error which we have already considered, and the conclusion we have reached with reference to these two propositions disposes of all other assignments of error urged by the defendant. That the funds were embezzled by the defendant admits of no question. We have examined the entire record, and find that the defendant has had a fair and impartial trial, and that the evidence warranted the jury in finding him guilty as charged in the information, and that the court submitted the case to the jury under proper instructions, and, finding no reversible error, it necessarily follows that the judgment of the trial court should be, and it is hereby, affirmed. — Affirmed.
ANDERSON, C.J., and KINTZINGER, DONEGAN, PARSONS, and RICHARDS, JJ., concur. *Page 1165 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430238/ | Defendant-appellant is a lawyer at Creston, and the plaintiff-appellee is a railroad locomotive engineer, with headquarters at that place. Appellant became interested in certain Oklahoma oil fields. Hence he approached appellee, for the purpose of borrowing money to be used in the venture. After obtaining the desired funds, in the amount of $1,000, appellant then induced appellee to purchase stock, in the par value of $1,000, to be repurchased at the end of a year. For the purpose of recovering the loan, and in order to obtain reimbursement under the repurchase agreement, this action was brought. The petition filed by appellee, as plaintiff, against appellant, as defendant, contained six counts, but only three were submitted to the jury. Those presented to that body were Counts 1, 3, and 4. Consequently, Counts 2, 5, and 6, are not involved. Counts 1 *Page 327
and 3 relate to the loan aforesaid, and Count 4 has reference to the repurchase undertaking. At the conclusion of a trial on the merits, the jury found for the appellee, and returned a verdict against the appellant in the sum of $2,770.42. Reversal is urged by appellant because of erroneous instructions given to the jury. No other questions are raised.
Convenience requires that Counts 1 and 3 be considered first.
I. On January 31, 1922, appellee, at the instance and request of appellant, delivered to the Moore Oil Gas Company the sum of $1,000. Contemporaneously with that transaction, appellant assumed one half of the obligation for repayment, and executed his note to appellee in the sum of $500. As the net result of the manipulation between the parties, the Moore Oil Gas Company and D.H. Moore owed appellee $500 on the loan agreement, and appellant was indebted to the latter for $500 on the promissory note. Interest was to be paid at the rate of 8 per cent per annum.
Apparently appellant was interested in the oil transaction, and told appellee that he would guarantee the payment of all the principal and interest on the $1,000 thus advanced. Security agreed upon was that the Moore Oil Gas Company would deliver to appellee: First, the oil and gas lease held, or to be held, by it on a certain 10-acre tract in Garvin County, Oklahoma; second, shares of its own stock in the par value of $2,000; and third, 20 shares in the Home Oil Gas Company, of Sedalia, Missouri. Accordingly, appellant demanded of and received from appellee a contract to the effect that one half of the alleged securities aforesaid should be due the former, in view of the fact that he had assumed $500 of the loan above mentioned. None of the securities mentioned were ever delivered to appellee.
Immediately after the negotiations just related, appellee learned that Moore, who appeared to be the executive officer in the Moore Oil Gas Company, had absconded. Then appellee and his wife advised appellant of that fact; whereupon appellant stated that Moore had called him by telephone, and said that the title to the 10-acre lease named in said securities was defective. Furthermore, appellant contends that he went to Oklahoma and demanded that Moore have his corporation return the $1,000 loaned by appellee, but that, instead of doing so, Moore offered *Page 328
to sell appellant another lease. Therefore, appellant agreed to buy this second document, and when so doing, assumed and agreed to pay all the indebtedness due appellee arising out of the original loan transaction above described. It appears that appellant paid $25,000 in cash for this second lease, known as the Green Crest, and in addition thereto, agreed to pay $30,000 more out of the oil production.
After returning home from Oklahoma, after the purchase of the Green Crest lease, appellant reported to appellee concerning the new purchase. Upon hearing this, appellee complained to the appellant about the situation, and threatened to bring suit at once unless the $1,000 loaned the Moore Oil Gas Company, including the $500 note, was paid at once. So, in order to prevent the publicity of a suit at that time, appellant agreed to pay appellee the entire $1,000 originally loaned to the Moore Oil Gas Company, embracing the $500 note aforesaid.
Resultantly, said Counts 1 and 3 of appellee's petition sought recovery on appellant's promissory note of $500 and his oral agreement, just mentioned, to pay the remaining $500. By way of objections to the court's charge to the jury, 1. APPEAL AND appellant suggests the following propositions: ERROR: First. Contention is made by him that, while review: appellee can obtain redress on the promissory scope and note for $500, he cannot succeed in recovering extent: the remaining $500, because the basis therefor fatally is an oral contract, in the nature of a belated guarantee, and therefore unprovable, under the objection. statute of frauds. Manifestly, this objection was not raised in the court below. This particular point was not presented by answer, demurrer, objection to the evidence, motion for a directed verdict, or a motion in arrest of judgment. For the first time, the argument on this phase of the controversy is raised in this court. Now it is too late. Through failure to interpose the exception in the court below, the right to challenge is waived.
Second. Appellant urges next that the district court assumed in its instructions to the jury that the appellee loaned the Moore Company $500 and appellant $500; while, in truth and *Page 329
in fact, appellant asserts, the entire $1,000 2. TRIAL: was loaned to the Moore Company by appellee, and instruc- the appellant purchased or assumed a one-half tions: interest therein by giving the $500 note. inaccuracy: However this may be, appellant admitted his curring assumption of the entire obligation, and agreed error. to repay appellee the entire sum of $1,000 and interest. Inaccuracy of statement on the part of the trial court, if any there was, did not prejudice appellant.
Third. Further complaint is made by appellant because the court instructed at all concerning the $500 contained in the above transaction which was not embraced within the note. His theory at this juncture seems to be that there was no 3. CONTRACTS: consideration for the assumption of that amount considera- of the loan to the Moore Company not contained tion: in the note. Clearly, there is no merit in this forbearance assignment of error. To begin with, appellant to sue. represented to appellee that the loan was safe, and that the money would be repaid by the Moore Company. Afterwards, appellant made an adjustment with the Moore Company on the basis that the former would assume and pay appellee's loan. Following this, when appellee became dissatisfied, and threatened suit, appellant promised to repay the obligation, provided that such proceeding was not instituted at that time. Such forbearance on the part of appellee amounted in itself to a consideration, to support appellant's promise. Urdangen v. Fryer,183 Iowa 39. Appropriate language in the Urdangen case is:
"As a basis of the alleged settlement of 1914, it was not essential that any actual indebtedness should have existed; all necessary was that plaintiff, in good faith, should have asserted claims against defendant, even though these may have been excessive or unfounded in fact. If disputed claims are asserted in good faith, even though judicial investigation might have demonstrated them to have been unfounded in fact, the settlement thereof furnishes a sufficient consideration for the settlement agreement."
Fourth. Insistence is made by appellant that the court erroneously instructed the jury in relation to the Green Crest lease transaction above explained. Stating the thought in another way, appellant says that, in buying the Green Crest lease, he was *Page 330
acting for appellee, and that the same accordingly became the property of the latter. Plainly this is not in accordance with the record, because appellant himself admits buying the Green Crest property for himself, and said that, in so doing, he assumed appellee's loan of $1,000, and agreed to pay it.
Fifth. Another grievance of appellant's is predicated on the thought that his defense in reference to the $1,000 loan to the Moore Company was not properly submitted to the jury. But a study of the record discloses that there is no basis for this claim. The district court carefully told the jury that it was the contention of appellant that, immediately after the Green Crest Oil lease transaction, above described, appellant offered to pay appellee the $1,000, but that the same was refused. Continuing its statement of appellant's defense at this point, the trial court told the jury that the rejection of the $1,000 on appellee's part was due to the fact that he then and there wanted to invest that sum of money in the Green Crest Oil lease, and did, in fact, obtain therewith a one-twenty-fifth interest therein. Pursuing that theory thus advanced by appellant, the district court informed the jury that the acquisition of that interest in the Green Crest lease, according to appellant's testimony, canceled all previous obligations existing between appellee, the Moore Oil Company, and appellant. All that, of course, was denied by appellee. Wherefore, a jury question arose, and was determined adversely to appellant. We cannot change that result.
Sixth. Also, it was part of appellant's defense that appellee became the owner of Certificate No. 94, for 10 shares of Green Crest Oil Gas Company stock, aggregating $1,000 in the par value. In denial thereof, appellee testified that he received this stock as collateral security, in accordance with the agreement before mentioned. Conflicting statements resulted, and the issue was properly determined by the fact-finding body.
Seventh. Finally, appellant asserts that the trial court did not properly place the burden of proof. A careful reading of the entire instructions, however, disposes of this complaint, because the trial court very carefully and correctly put the burden upon appellee to support his allegations, and then, on the other hand, imposed the duty upon appellant to sustain his alleged affirmative defenses. Error does not appear in this regard. *Page 331
Thus, we have numbered and disposed of appellant's assignments of error under Counts 1 and 3 in numerical order.
II. Attention is now directed to Count 4, relating to the repurchase agreement. It is to be remembered that this controversy refers to another and different stock transaction. This stock was in the Green Crest Oil Gas 4. APPEAL AND Company. Purchase thereof by appellee through ERROR: appellant was consummated on or about May 24, review: 1922. Cash therefor was paid by appellee to scope and appellant for the entire consideration thereof, extent: amounting in all to $1,000. An essential part of contradic- that deal was the repurchase agreement executed ting trial by appellant and appellee at the time of the theory. aforesaid stock transfer. Important in that written undertaking is a clause reading as follows:
"At the end of one year from date hereof, the said shares may be returned to [appellant] and he will pay therefor the amount paid for the same; that is, the par value thereof, with interest at eight per cent per annum, less all dividends which have been received by [appellee] second party."
Tender and return of this stock were denied by appellant in his answer. So, too, appellant, during the trial, adopted the theory that appellee at no time within the year offered to return the stock or demand the repayment of the money therefor. Special notice is to be taken of the fact that appellant did not contend that the tender and demand for repayment were to be made at the end of the year. His idea was that such must have been done during, but not after, the year. For the purpose of meeting appellant's position in that respect, appellee pleaded waiver and an agreement to pay after the year. However, in producing proof, appellee showed that the tender and demand were made in April, 1923, before the end of the year, and continued until after that interim up to the time suit was actually brought. Appellant did not attack appellee's plea of waiver by motion, demurrer, or any other method, because it did not state the necessary elements of the doctrine relied upon. Neither did he object to the introduction of evidence thereunder, nor base a motion for a directed verdict upon the insufficiency thereof. No motion in arrest of judgment was asked because of this.
When presenting the issues to the jury, the trial court *Page 332
submitted the waiver as one of them. Then, for the first time, after the jury's verdict, the appellant complained of the deficient plea of waiver. Such objection was made by an exception to the instructions. Nowhere else did the complaint appear. Having allowed the issues to be made and the trial to be had upon the theory of the trial as if the waiver were presented by the pleading, appellant now, at this late date, cannot change front and set aside the verdict of the jury and judgment of the court on a new doctrine. Enix v. Iowa Cent. R. Co., 114 Iowa 508;Heiman v. Felder, 178 Iowa 740; First Nat. Bank v. Zeims, 93 Iowa 140; Conger v. Crabtree, 88 Iowa 536; Linden v. Green, 81 Iowa 365; Benjamin v. Vieth, 80 Iowa 149; Zundelowitz v. Webster,96 Iowa 587; Martin Turner v. Widner, McKenzie Co., 91 Iowa 459;Great Western Ptg. Co. v. Tucker, 73 Iowa 755; City ofOskaloosa v. Boyd, 185 Iowa 1051.
Every opportunity afforded appellant to interpose an objection to the insufficiency of the pleading was neglected, and everywhere throughout the trial he permitted the court to believe that one of the issues involved was that of waiver. After having led the court into that theory of the trial, it is too late now for appellant to change his mind and interpose a new doctrine into the record. Notwithstanding appellant's position on the question of waiver during the trial, he now, for the first time, in this court contradicts himself by setting forth in the reply brief and argument a ground of reversal based upon the thought that the tender and demand for repurchase must have been after, rather than before, the year named in the agreement therefor, as aforesaid. While in the district court appellant's defense was based upon the alleged failure of appellee to tender and demand payment within the year, now, in complete reversal thereof, appellant suggests that such could not have been done during that period, but must take place thereafter. The inconsistency is so marked that it condemns itself.
Therefore, under the facts and circumstances here revealed, appellant cannot obtain a reversal, and the judgment of the district court must stand; wherefore, it is affirmed. —Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and WAGNER, JJ., concur. *Page 333 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430241/ | Heinbaugh made a contract with Cook and the Grande Avenue Land Company, by which he was to furnish material for the construction of a residence for the sum of $5,050. To guarantee the performance of his contract, he furnished to them the bond of the United States Fidelity Guaranty Company. Among the provisions of said bond is the following:
"In no event shall the surety be * * * subject to any suit, action or proceeding thereon, that is instituted later than the first day of September, A.D. 1923."
Heinbaugh defaulted on his contract, and the building was not completed by July 1st, as therein provided: it was not, in fact, completed until after the middle of August, 1923. This action was commenced on the 30th of July, 1924, which gives rise to the first question argued, to wit, that the action, not having been commenced before the first day of September, is not now maintainable.
We have recognized the rule in this state that, notwithstanding the general statute of limitation, parties to a contract may stipulate to a shorter limitation than that provided by the *Page 1004
statute, and such an agreement, generally 1. LIMITATION: speaking, supersedes the statute and binds the OF ACTIONS: parties. Harrison v. Hartford Fire Ins. Co., 102 contract Iowa 112, and cases there cited. We do not care limitation: to disturb this general rule, but, like all unreason- general rules, it has its limitations. While the ableness. legislature has the right to enact statutes of limitation, and its pronouncement therein is usually conclusive, yet even the power of the legislature in this respect is limited, or subject to the fundamental condition that a reasonable time shall be allowed for the exercise of the right of action. See 12 Corpus Juris 978, Section 574, where a wealth of authority is cited on this proposition. An elaborate discussion of this question may be found in a decision from the United States circuit court of appeals, Lamb v. Powder River Live Stock Co., 65 C.C.A. 570 (132 Fed. 434), where it is said:
"But the power to enact such statutes is subject to the fundamental condition that a reasonable time must be given for the exercise of the right of action, whether existing or prospective, after it comes within the prospective or present operation of the statute, and before the bar becomes effective."
We are of the opinion that the right and power of the parties to a private contract is limited in the same way, to wit: that the time provided must be a reasonable time, in the light of the surrounding circumstances, facts, and nature of the contract, and its purpose. In 1 Wood on Limitations (4th Ed.), Section 42, it is said:
"Parties to a contract may, by an express provision therein, provide another and different period of limitation from that provided by statute, and that such limitation, if reasonable, will be binding and obligatory upon the parties."
Throwing light on this subject are Longhurst v. Star Ins. Co.,19 Iowa 364; Gintjee v. Knieling, 35 Cal. App. 563
(170 P. 641); Sheard v. United States Fid. Guar. Co., 58 Wash. 29
(107 P. 1024); Columbia Sec. Co. v. Aetna Acc. L. Co., 108 Wash. 116
(183 P. 137); Pacific Mut. Life Ins. Co. v. Adams,27 Okla. 496 (112 P. 1026).
Turning now to the building contract existing between the appellees and Heinbaugh, we note that the contract provides that the building shall be completed by July 1, 1923: but time is not made the essence of the contract by any provision therein. *Page 1005
Under Section 10278, Code of 1924, all of Heinbaugh's subcontractors had sixty days after the completion of the contract in which to file mechanic's liens. During that time it would ordinarily be uncertain as to just what outstanding claims there might be which would be the subject of mechanic's liens, and it would not be safe for the owner to make payment until the time had expired for filing mechanic's liens. After the time had expired for filing mechanic's liens, the owner would be bound to pay such lien holders before he could maintain the action on this bond. New England Equitable Ins. Co. v. Boldrick, 192 Iowa 763;Cousins v. Paxton Gallagher Co., 122 Iowa 465; Wilson v. Smith,23 Iowa 252. It is quite apparent from this situation that, until the expiration of sixty days for filing mechanic's liens, it would be uncertain what the owner would have to pay out on account of Heinbaugh's breach of contract; therefore, it would have been impossible for him to have commenced his action on this bond "not later than September 1st."
We have also held that, as against a limitation of this kind in an insurance policy, such limitation does not operate against outstanding mechanic's liens until the amount due on said mechanic's liens is determined. Stout v. City Fire Ins. Co.,12 Iowa 371; Longhurst v. Star Ins. Co., supra; Ellis v. CouncilBluffs Ins. Co., 64 Iowa 507. We hold, therefore, that, under the facts in this case, the limitation provided in the bond was unreasonable, and therefore void. This being so, the general statute of limitations would apply; and as the action was brought within the time provided by the general statute of limitations, it is validly maintained.
However, appellant company insists that the foregoing rule should not apply because of the fact that, on the 30th day of August, Cook phoned the company and asked for an extension of time, and the company sent him a written extension of time providing that action might be brought up to the 15th day of October.
The owner was not in any better position on the 15th day of October, to determine the exact amount of loss he would suffer under this contract, than he was on the first day of September. We find nothing available to the appellant on this contention. *Page 1006
To a fair understanding of the questions raised herein, a general review of the fact situation is necessary. Malcolm V. Bolton conducted a general insurance business, under the trade name of Malcolm V. Bolton Company, in the city 2. INSURANCE: of Cedar Rapids at the time involved herein. avoidance C.C. Cook, the appellee, was in the employ of of policy: that company, as manager of the insurance false department. At this time, Bolton Company were statement as local representatives or agents of appellant to Fidelity Guaranty Company. Cook had bought a responsibi- lot from the Grande Avenue Land Company, of lity. which Bolton was secretary and sales agent, on which he proposed to build a dwelling house. He let a contract to Heinbaugh to furnish the material and construct the building under certain plans and specifications, which are not now material. To secure the performance of this contract by Heinbaugh, an application was made to the appellant guaranty company for a bond. Cook filled out the application, and Heinbaugh signed the same. The bond issued thereon is the bond in suit herein. On the back of said application there was a blank form, headed "Statement of Agent," and therein was written the following:
"Andrew Boyd Heinbaugh has a reputation in Cedar Rapids as a builder of good residences, and discounts his bills for material. [Signed] C.C. Cook, Agent."
In Division 2 of appellant's answer the above facts were pleaded, and a copy of said statement by the agent was set out. It was alleged that this statement, so far as it refers to the financial condition of Heinbaugh, was untrue; that it was so known to Cook at the time he made it; that appellant relied on the statements, conditions, and representations made by Cook, and thereupon executed said bond; that by reason of said matters the bond is void. Appellant offered testimony tending to support the defense thus set up in Division 2. Objection thereto was sustained on the ground that a copy of this statement was not attached to the policy issued, and that therefore, under the statute, a defense based thereon was not available to appellant. Later, the defense herein set up was, on motion of the appellee, withdrawn from the jury. It is urged on us that this ruling by the court was erroneous.
Assuming, without deciding, that said written statement was *Page 1007
in fact a part of the application, within the meaning of the statute, we are of the opinion that this evidence was admissible, and, as it tends to support the allegations of Division 2 of the answer, should not have been withdrawn from the jury. The division referred to seems to us to have more in it than the simple question of whether or not the written statement was a part of the application. It is to be remembered that Cook, who signed said statement, is one of the beneficiaries under the policy. Narrowing it down, we have this situation: Prior to the issuance of the policy, Cook made the written statement as a part of the inducement to its issuance. While, generally speaking, it may be true that, under these circumstances, a beneficiary will not be defeated by reason of concealment of facts or conditions which would have prevented the issuance of the policy, had the fidelity company known of them, yet it is a duty owed by one who expects to be the beneficiary under a policy to deal fairly and frankly with the company, when called upon with reference to circumstances material to the matters involved.
This principle being applied to this case, Cook could have kept silent as to the financial distress of Heinbaugh, if such existed and was known to Cook at the time, and not suffered thereby; but where, on request of a surety, the beneficiary attempts to advise the surety as to the financial condition of the principal, he must do so fairly and in good faith. This is the settled law of this state. Bank of Monroe v. Anderson Bros. M. R. Co., 65 Iowa 692; Benton County Sav. Bank v. Boddicker, 105 Iowa 548;Lingenfelter Bros. v. Bowman, 156 Iowa 649; Barnes v. CenturySav. Bank, 149 Iowa 367. The rule is summarized in the Boddicker
case, where it is said:
"If the surety applies to the creditor for information respecting the principal which the creditor has, and may properly give, but which he withholds without sufficient cause, or if he knowingly give false information, he, and not the surety, should suffer the loss occasioned by the wrong."
Cook filled out the blank on the application; and, whether it be considered a part of the application or not, it is a written statement from him, and he is bound thereby. If the appellant is able to prove the untruthfulness thereof, and that it believed, acted, and relied thereon in issuing the policy, and from the *Page 1008
facts thus proven a scienter may be presumed, it has made out a defense for the consideration of the jury.
It is further urged that the company cannot rely on this defense of fraud because it did not tender a return of the premium until 18 months after it discovered the condition. This contention is not available to the appellee herein. He is not the party who paid the premium, and, if it were tendered or paid back, it would be payable to Heinbaugh, and not to the appellee; but, regardless of this, tender was made, and that is all that the law requires.
For the errors above pointed out, the case is reversed. —Reversed.
De GRAFF, C.J., and EVANS and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430243/ | This action was originally commenced in a justice court in Jones county, Iowa, as an action in forcible entry and detainer. An answer was filed by the defendant-appellant denying that she was guilty of a forcible entry and detainer and denying plaintiff's right to the possession of the real estate involved. The defendant further alleged that she was 68 years of age, and that she and her husband, Wesley Soukup, purchased the property in question, which is located in Anamosa, Iowa, in October, 1923, and had occupied the same as their homestead ever since, that her husband died in August, 1934, and that she had continued to occupy the property as her homestead thereafter. She further alleged in her answer that a deed was executed by herself and husband conveying the property in question to her son-in-law, Guy P. Foote, the plaintiff-appellee, in May, 1934, and at the time the said deed was executed it was agreed between the parties thereto that the grantors, Mr. and Mrs. Soukup, should have a life estate in the property so conveyed; and that they should be permitted to live on the premises without cost as long as either one of them survived, and that through inadvertence, oversight, mistake, and forgetfulness such agreement was omitted from the conveyance, and that as executed the deed did not represent the agreement of the parties thereto. The case was thereupon transferred to the district court of Jones county. An amendment to the answer of the defendant was then filed in which it was alleged that, at the time the deed was executed to the plaintiff, the plaintiff's wife, Anna Foote, held a mortgage upon the property in question for approximately $1,500, and that the value of the real estate was in excess of the amount due upon said mortgage, and that a part of the *Page 1220
consideration for execution of the deed was the cancellation of the mortgage and the agreement that the father and mother of the mortgagee should have the right to occupy the premises as long as either of them lived, that Wesley Soukup, the husband of the appellant, was old, childish, feeble, and sick, and neither he nor his wife understood the English language sufficiently to understand the contents of the deed they executed, and that plaintiff perpetrated a fraud, deception, and gross injustice upon the defendant and her husband in omitting from the deed the provision reserving a life estate to the grantors; and defendant asked that the deed be reformed so as to contain the real agreement of the parties at the time it was executed. The plaintiff filed a reply to the answer and amendment of the defendant which is in the nature of a general denial, and the prayer of which asked that the defendant's request for affirmative relief be denied, that the title of the plaintiff in the premises be quieted, and that plaintiff have other and further equitable relief.
The case was tried to the court as in equity, and the court found and held that the plaintiff, Guy P. Foote, was the holder of the legal title of the property involved, and was entitled to the possession thereof, and that there was no agreement or understanding of any kind reserving to the grantors in the deed a life estate. The court further found and decreed that the defendant has no right, title, or interest in or to the premises involved, and the title thereto be quieted in said plaintiff as against the defendant, Anna Soukup; and further ordered and decreed that the defendant be removed from the premises and that the plaintiff be put in possession thereof. From this final order and decree of the court the defendant has appealed.
The record discloses that the defendant, Anna Soukup, is 70 years old, that she cannot read or write the English language, and that she speaks the language very poorly and understands only the simplest words thereof. Her husband, Wesley Soukup, was 74 years of age at the time of his death, and had been feeble and sick and confined to his bed part of the time for many months prior to his death; that he understood the English language very poorly and could not read or write the same. The parties were born in Bohemia and did not acquire the habits, language, and character of the people of their adopted country. They had five living children, one of whom (Anna) is the wife *Page 1221
of the plaintiff, Guy P. Foote. The defendant and her husband purchased the property herein involved in October, 1923, and occupied the same as their homestead until the death of the husband, Wesley, and his widow, Anna Soukup, was occupying the same at the time of the commencement and trial of this action. In May, 1934, the son-in-law, Guy P. Foote, plaintiff, had an attorney prepare the deed in question, then went to the home of his parents-in-law, and took them to the office of the attorney where the deed was executed. The grantors continued to occupy the homestead from the time of the execution of the deed until the death of the husband, Wesley Soukup, October 21, 1934, without the payment of any rent and without any question being raised as to their right to so occupy the property. After the death of the husband, the widow, Anna Soukup, the defendant herein, continued to occupy the premises unmolested until the latter part of December, 1934, at which time notice to quit was served on her and the present action for possession was commenced in justice court. In December, 1934, for some reason not disclosed by the record, the plaintiff, Guy P. Foote, called the children of the defendant to his residence. The defendant, having recently been removed from a hospital to the plaintiff's residence, was also present. At this meeting the plaintiff presented a so-called agreement in writing and asked his mother-in-law, the defendant, to sign the same. The contents of this agreement furnishes considerable insight as to the plaintiff's condition of mind and disposition toward the happiness and welfare of his mother-in-law, the defendant. The proposed agreement was as follows:
"Whereas, Guy Foote and his wife, have kindly agreed to permit me to make my home with them so long as we can live together in peace and harmony so that the happiness of neither one will be interfered with, and
"Whereas, I appreciate that I will be a guest in their home, and
"Whereas, there has been some disagreeable situations arise in the past due to interference with our relations in the home by third persons,
"Therefore, be it remembered; that I agree to recognize and respect all the rules and regulations adopted by Guy Foote and his wife for the household whilst I live there and to so conduct *Page 1222
myself that there will be peace and harmony in the home and no quarreling and that I agree to turn over to them all monies or property that can be readily converted into money so that they may put it in a bank to be used to help pay my funeral expenses or expenses of last illness. And that I agree that if I become dissatisfied with their hospitality that I will peaceably leave their home and make my home with some one else or else go to the county home. And that I agree not to bring into the home any one who will cause trouble between us. That it is my understanding that Mr. and Mrs. Guy Foote have agreed to give me a reasonable amount of spending money from the monies I may have turned over to them from time to time in the event I become able to go visiting and do leave their home temporarily to go visiting."
The proposed agreement was not signed by the defendant, Mrs. Soukup. She did not understand the contents of the agreement and she did not understand the necessity therefor. She had some little money and her household goods, and she expressed a desire to return to her home and remain there during the few short remaining years of her life. The plaintiff, Foote, her son-in-law, had contemplated the sale of the household goods of his mother-in-law and had procured sale bills and fixed the day for sale. To this arrangement the defendant objected also, and, upon the refusal of the defendant to permit the sale of household goods and personal property and the turning of the proceeds thereof over to her son-in-law, together with some other small amount of money she possessed, and her continued refusal to sign the agreement presented to her by the plaintiff, the plaintiff ordered her to leave his home. Neither at this meeting nor at any other time was anything said about rent being paid by the widow to her son-in-law for the homestead. There is some unsatisfactory testimony as to the payment of rent for two months at $5 per month after the death of Wesley Soukup, but the widow denies any such payment and states that she gave her daughter, Anna Foote, $10 to apply upon the taxes due upon the place. Upon the failure of the widow to sign the proposed agreement and turn over the proceeds of the sale of her personal household effects to her son-in-law, her son-in-law, the plaintiff, said that he was through with her and that she could no longer reside with him. The action to oust her from the possession of her homestead was then commenced. *Page 1223
The evidence is too extensive to quote or refer to at length as to the understanding and agreement of the parties at the time the deed in question was executed. The parties, appellant and appellee, do not agree at all as to the facts, and it has been necessary for us to resort to the transcript of the evidence which has been certified to us. We have carefully read the transcript, and are constrained to hold that the weight of evidence discloses that the old gentleman, Soukup, and his wife did not understand the purport of the deed conveying the title of the homestead property to their son-in-law, and took their son-in-law's statements to them that it would not change the right of their occupancy to the homestead during their lives, and they understood such was the condition of the conveyance. Repeated statements and declarations of the old gentleman, Soukup, convince us that he understood that the conveyance would not interfere with the right of himself and his wife to continue the occupancy of the homestead during their lives, and the testimony of the widow is plainly to that effect. Incidentally, the widow was called as a witness for the plaintiff, and testified in most part through an interpreter. Her examination discloses without any doubt that she did not understand ordinary simple English language.
[1] The district court in its decree quieted the title to the property in the plaintiff as against the defendant. There was no pleading of the plaintiff upon which such finding and decree could be based, and such finding and decree is, in our judgment, contrary to the weight of the testimony.
[2] We are constrained to hold that the evidence supports the contentions of the defendant as made in her answer and amendment thereto, and that the decree should have included such finding and should have reformed the deed by inserting therein a provision that the defendant, Anna Soukup, retained and possessed a life estate in the property involved. The cause will be reversed and remanded, with directions to enter a decree in the lower court in conformity with this opinion.
The motions to strike appellant's brief and argument and to strike appellee's amendment to abstract, heretofore submitted with the case, are overruled.
It is ordered that procedendo issue upon the filing of this opinion. — Reversed and remanded.
DONEGAN, C.J., and ALBERT, KINTZINGER, MITCHELL, PARSONS, RICHARDS, HAMILTON, and STIGER, JJ., concur. *Page 1224 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430249/ | [1] The appellees owned a farm in Hardin County. The Collins Mortgage Company held a first mortgage on said farm in the principal sum of $8000. The appellant's intestate held a second mortgage on said real estate for $3000, which by its terms was subject to said first mortgage and which was executed by appellees. At the September term, 1928, of the district court (the exact date not appearing), the appellant brought suit for foreclosure of said second mortgage. It appears from the allegations of the petition that decree of foreclosure was entered and that subsequently the property was sold at sheriff's sale and later redemption was made from said sale by the appellees. It also appears from the petition that "after the commencement of foreclosure proceedings on the second mortgage," (but whether before or after decree therein does not appear), the appellant paid to the said Collins Mortgage Company $400, being the interest due on the said first mortgage, on August 1, 1927, and that said payment was made to prevent the foreclosure of the said first mortgage. It also further appears that "while plaintiff (appellant) held the sheriff's certificate of sale covering the premises above described, and before the year of redemption had expired, that plaintiff (appellant) caused to be paid to the Collins Mortgage Company the further sum of $400, which paid the interest to August 1, 1928, on the first mortgage." It is alleged that this payment was made in order to protect appellant's interest in the premises and to save the cost of foreclosure of said first mortgage. It is then alleged that in December, 1928, the appellees redeemed said property from the appellant's foreclosure of said second mortgage. This suit is brought to recover the $800 so paid by the appellant in said two installments, and appellant prays that she may be subrogated to the rights of the holder of the first mortgage as to said interest payments, and that a lien be established against said premises to said extent in behalf of the appellant. The motion of the appellees to dismiss appellant's petition, while in a number of paragraphs, in general effect challenges the sufficiency of the petition to state a cause of action, and particularly alleges that the statutes of Iowa "have provided a new remedy by which a junior lienholder may protect himself on paying off a prior lien, and such new remedy is exclusive" and that the appellant has failed to follow the procedure *Page 270
prescribed by the statute as shown by the petition.
I. Chapter 501 of the Code is as follows:
"The holder of a sheriff's sale certificate or junior lien upon any real estate after the delinquency of any taxes or special assessment, or of interest on any senior lien, or breach of any condition of a senior incumbrance, upon payment by him, or performance of the condition broken, shall have a lien upon said real estate for such expenditures and interest thereon of equal priority with the lien so held by him upon his filing with the clerk of the district court in the county in which the land is situated, a verified statement of said expenditures and the dates thereof, together with a description of the real estate, the name of the record owner, and a reference to the lien which he holds, and may recover the same in any action brought for the foreclosure of the junior lien referred to in said verified statement.
"When such advancements have been made by the holder of a sheriff's sale certificate the sum so advanced shall be a part of the amount required to redeem from said sheriff's sale.
"It shall be the duty of the clerk of the district court to record the statements so filed in the incumbrance book and to enter the same in the lien index. Payments advanced after execution has been issued upon the junior lien, shall be added to the execution upon receipt, by the sheriff, of a verified statement of such advancements and when the redemption period has expired the clerk shall release them on his record."
This chapter as originally enacted by the Fortieth General Assembly became effective April 2, 1923. It was amended by the Forty-second General Assembly by the insertion of the clause respecting payments advanced after execution has been issued, and this portion of the statute became effective July 4, 1927. There was no statute in this state pertaining to the general subject-matter of Chapter 501 until the enactment of the statutes referred to. Of course, under long existing statutes, creditors could redeem from each other where there had been execution sales, but there was no provision contemplating any such remedy as is set out in the chapter above quoted. Prior to the enactment of said statute, at common law in this state, a junior lienholder, for the purpose of protecting his security, might pay *Page 271
the interest on a prior mortgage and would be entitled to be subrogated to the rights of a senior mortgagee under said mortgage. In so doing, we have held that the second mortgagee was not an intermeddler or a volunteer.
In Bennett v. First National Bank, 128 Iowa 1, we said:
"We have no hesitation in affirming that part of the decree which sustained the plaintiff's claim to be subrogated to the lien of Carter under the first mortgage. The plaintiff, as the holder of a judgment lien which was junior to the mortgage, had the right to protect her security by paying the mortgage debt and succeed to the rights of the mortgagee. Such payment was not the act of a mere intermeddler or volunteer, and the cancellation of the mortgage of record will not necessarily defeat such subrogation, save as against the intervening rights of third parties without notice. This rule was announced by us in the late case of Bowen v. Gilbert, 122 Iowa 448, where, as in the present case, a lienholder paid off a prior mortgage, and caused it to be released of record. It is quite certain from the record that plaintiff did not intend to release or waive any security to which she was entitled, but gave up the old mortgage and took the renewal under the belief that she was obtaining a first lien on the property. It is also certain that the defendant bank is in no manner prejudiced by denying to it the unearned advantage which it seeks. The decree in this respect does no more than to hold that a payment made by the plaintiff in good faith to protect her lien shall not operate to destroy the value of that lien, and permit a junior creditor to have precedence over her. The justice of the rule here stated has long been recognized."
See, also, to the same effect, Bowen v. Gilbert, 122 Iowa 448; Gulick v. Peckenpaugh, 154 Iowa 380. Were it not for said statute, there could be no question but that the appellant would be entitled at common law to subrogation, under the facts pleaded in this case. The appellees contend that the statute above quoted has abrogated the prior existing rule of the common law and has provided a new and exclusive remedy for a junior encumbrancer who seeks to protect his security against an outstanding senior encumbrance.
[2] At this point, the question for our determination is *Page 272
whether or not the statute in question supersedes the rule of the common law, or, in other words, does the statute merely provide an additional remedy for a junior encumbrancer.
In Swinney v. C., R.I. P. Ry. Co., 123 Iowa 219, we considered the question of the effect of subsequent legislation upon a prior existing remedy. We said:
"It is well settled that, even where a statutory remedy is provided for, it is not to be construed as exclusive of a previously existing common-law remedy, unless the language of the statute requires such construction. See notes in 13 L.R.A. 92."
In the opinion in said case we made reference to 13 L.R.A. 92, and in the note at said citation, the following statement appears:
"It may be laid down as a general rule that when a statute prescribes a new remedy the plaintiff has his election either to adopt such remedy or to proceed at common law. Such statutory remedy is cumulative, unless the statute expressly, or by necessary implication, takes away the common-law remedy. Miles v. O'Hara, 1 Serg. R. 32; Boaz v. Heister, 6 Serg. R. 20; Almy v. Harris, 5 Johns. 175; Farmer's Turnp. R. Co. v. Coventry, 10 Johns. 389; Colden v. Eldred, 15 Johns. 220; Booker M'Robert, 1 Call. 243; Bearcamp River Co. v. Woodman, 2 Me. 404; Fryeburgh Canal v. Frye, 5 Me. 38; Baltimore v. Howard, 6 Harr. J. 383; Coxe v. Robbins, 9 N.J.L. 384; 3 Chitty, Pr. 130."
In Shaw v. Merchant's National Bank of St. Louis, 25 L. Ed. 892, the Supreme Court of the United States said:
"No statute is to be construed as altering the common law, further than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express."
See, also, Fitzgerald v. Quann, 17 N.E. 354; Brown v. Barry, 1 L. Ed. 638; Johnson v. Southern Pacific Company, 117 Fed. Rep. 462.
Applying the foregoing general rule to the facts of the instant case, we think it must be apparent that the statute in *Page 273
question does not by its terms attempt to abrogate the existing common law remedy which permitted a junior lienholder to protect his security by paying off a prior existing lien, and upon so doing being subrogated to the rights of the holder of said prior lien as against the debtor. Nothing can be found in the statute in question, by the most rigid and careful examination, that indicates an intent that the remedy therein provided for is to be exclusive or that the prior common law remedy of subrogation then existing was intended to be abrogated by said statute. The statute does no more than provide a new and additional remedy, available to a junior encumbrancer, under certain exigencies therein set forth.
[3] II. It is further contended that the appellant cannot recover in the instant case because of the rule that a party suing cannot split his cause of action but must in one action bring forward all of his claims growing out of the transaction in question. This rule is particularly applicable in cases where a mortgagee in one action seeks foreclosure of a mortgage, and in a subsequent action asks for personal judgment against the debtor. In such event he could have recovered on both remedies in the first action and must be content with what he first recovers. Sweeny v. Daugherty, 23 Iowa 291; Oliver v. Montgomery, 39 Iowa 601; Hempstead v. City of Des Moines, 63 Iowa 36; Kenyon v. Wilson, 78 Iowa 408; Smith Lumber Company v. Sisters of Charity,146 Iowa 454; Merrifield v. Clark, 199 Iowa 171; Schnuettgen v. Mathewson, 207 Iowa 294.
This rule has no application to the pleaded facts in the instant case, which are admitted by the motion to dismiss. The appellant had not paid the first installment of interest at the time of the commencement of the suit for foreclosure of her mortgage under the allegations of her petition. She could not therefore have included it in her action at the time it was commenced. She subsequently acquired it while the litigation was pending, but at just what stage does not appear in the record. It may be true that she would have had the right to have filed a supplemental petition and included it in her action for foreclosure, but this she did not do. Nor was she required so to do. The important thing to be remembered at this point is that the appellant did not own the claim for interest paid on the senior mortgage at the time she commenced her action of *Page 274
foreclosure. She therefore had no action to split at that time. The only claim she had was her claim of foreclosure of her own mortgage which she then sought to assert. The fact that she subsequently acquired another and independent claim by the payment of interest on the first mortgage does not defeat her of her right to subsequently recover on said claim in an independent action.
We see no basis upon which to hold that the appellant has split her cause of action, either as to the $400 which she acquiredafter the commencement of her original action, or the $400 item which she did not acquire until after the sheriff's sale onexecution. We therefore reach the conclusion that the appellant's petition stated a good cause of action as to both of the items of interest therein referred to and that the trial court erred in sustaining the appellees' motion to dismiss said petition.
The cause must be, and it is, — Reversed.
MORLING, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430250/ | On the first day of February, 1928, a petition in equity was filed in Mahaska County in the name of the State ex rel. Preston, County Attorney of Mahaska County, alleging that:
"The defendant Huntley is a bootlegger, engaged and concerned in the business of bootlegging intoxicating liquors, in that he has, by himself, servants, agents, and employees, and for himself, kept and carried around on his person and in a vehicle
intoxicating liquor, to wit, alcohol, whisky, and other intoxicants, and has so kept and carried around in a vehicle and had *Page 733
possession illegally of intoxicating liquors, and is now keeping and carrying around on his person and in a vehicle and has possession illegally of intoxicating liquors, with intent to sell and to dispose of the same by sale, gift, or otherwise."
The prayer of the petition is, in substance, that Huntley be permanently and perpetually enjoined and 1. INTOXICATING restrained from bootlegging intoxicating LIQUORS: liquors, and from keeping or carrying around on bootleggers: his person or in a vehicle, and from illegally injunction: having possession of, intoxicating liquors, with venue. intent to sell or dispose of the same, by gift or otherwise.
The original notice was served on the defendant on February 3, 1928, in Keokuk County. On April 11, 1928, the defendant filed objections to the jurisdiction, as follows:
"Comes now the defendant and appears specially, for the sole purpose of attacking the jurisdiction of the court. Such special appearance is announced at this time, and defendant alleges that this court has not jurisdiction of the defendant or of the subject-matter of this action, on the grounds that no original notice has been served upon this defendant, and that defendant is not a resident of Mahaska County, Iowa. Wherefore, defendant asks that the objections to the jurisdiction of the court be sustained."
On June 6, 1928, the court sustained the foregoing objection to the jurisdiction, and continued the case, giving plaintiff leave to amend the return of service of the sheriff by adding a verification. On June 8, 1928, the sheriff of Mahaska County verified his return on the original notice, which return shows that the defendant was served on February 3, 1928, in Keokuk County, Iowa. On January 11, 1929, the defendant filed a motion to transfer the action from Mahaska County to the county of the residence of the defendant, upon the grounds:
"1. That, at and prior to the bringing of this action by the State of Iowa, the defendant was a resident of Keokuk County, Iowa, and is a resident of Keokuk County, Iowa, at this time.
"2. That the petition shows this is a personal action, or local action, and that said action should be brought in the county of the defendant's residence. *Page 734
"3. In support of this motion, defendant attaches the affidavit of John N. McCoy, and by reference the said affidavit is made a part of this motion.
"Wherefore, defendant asks that this action be transferred to the district court of Keokuk County, Iowa; that the venue be changed to said Keokuk County, Iowa, where this matter may be tried and disposed of."
On the same day, the motion was overruled, to which ruling of the court the defendant duly excepted. Subsequently, and on the same day, the defendant filed an answer, and the cause went to trial, resulting in a decree for the plaintiff and against the defendant. On February 23, 1929, a notice of appeal was served and filed.
I. The first error relied upon for reversal challenges the action of the trial court in overruling the defendant's motion for a transfer of the case to Keokuk County, Iowa, the residence of the defendant.
It will be noted at the outset that this is not an action to abate a nuisance alleged to be maintained in a definite place, but rather, it is an action to restrain the defendant from engaging in the business of bootlegging. It is sought to restrain him from "keeping or carrying around on his person or in a vehicle" intoxicating liquors, with an intent to sell or dispose of the same in Mahaska County or in any other place in the state of Iowa.
Manifestly, had the action been brought to restrain the maintenance of a liquor nuisance in some definite locality in Mahaska County, the action would lie, regardless of the residence of the defendant. There is no claim in the record that the defendant was, at any time material to the issues, a resident of Mahaska County. It is not denied that, during all of the time in controversy, he was a resident of Keokuk County, Iowa.
It will be noted that the defendant appeared specially, and questioned the jurisdiction of the court over the defendant, and over the subject-matter of the action, on the grounds: First, that no original notice had been served upon the defendant, and second, that the defendant was not then a resident of Mahaska County.
The main question is whether, under the provisions of Section *Page 735
2031 of the Code of 1927 and the laws therein referred to, a resident of Keokuk County can be enjoined in a suit pending in Mahaska County on service made in Keokuk County, upon sufficient showing of acts of bootlegging in Mahaska County. The term "bootlegger" is defined in Section 1927 of the Code of 1927. Section 2031 definitely provides for an injunction against bootlegging. It also provides:
"All the proceedings for injunctions, temporary and permanent, * * * as defined by law, shall be applicable to such person, * * * and the fact that an offender has no known or permanent place of business or base of supplies * * * shall not prevent a * * * injunction * * * from issuing."
A careful analysis of this section clearly leads to the conclusion that the legislature intended thereby that a bootlegger might be enjoined in any county where he was found engaged in any of the acts prohibited by the law pertaining to the sale of intoxicating liquors by bootleggers. By this statute the bootlegger is, in contemplation of law, in the same category as the individual who maintains a liquor nuisance in a definitely located building in the county in question. The motion to transfer the case to Keokuk County was properly overruled.
II. It is next claimed that the court erred in entering a decree of injunction on the ground that it was not shown to the court that efforts in good faith had been made 2. APPEAL AND by the State to discover the alleged base of ERROR: supplies or the alleged place where the review: defendant conducted the unlawful business, as scope and required by Section 2031-a1. It appears that, extent: during the progress of the trial, the county inviting or attorney called the sheriff and the chief of causing police, stating in open court that he desired to error: show that such efforts had been made. Whereupon estoppel. the defendant's counsel stated:
"You don't need to call them in. We will concede all that. The only question we are concerned with is as to the jurisdiction. We claim that you can't get an injunction in Mahaska County against a resident in Keokuk County."
In this state of the record, the objection is not well taken.
III. The third error relied upon for reversal is the taxation *Page 736
of a $35 attorney fee to the county attorney. We are unable to find on the record that this claim was raised in the court below. It cannot be raised for the first time here.
We have carefully examined the entire record in this case, and find no cause for reversal. The case is — Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430256/ | On June 17, 1928, Earl Hawkins obtained a judgment against Jacob B. VerMeulen in the district court of Polk County for $4,000. A few days prior to the above date, the said VerMeulen conveyed the property involved in this action by warranty deed to the appellant, Sophia Akers, for an expressed consideration of one dollar and other good and valuable consideration. This action was commenced by Hawkins against VerMeulen and Akers to set aside said conveyance and to subject the property described in the instrument of conveyance to execution for the satisfaction of such judgment.
The ground upon which relief was asked was that the conveyance was without consideration and in fraud of creditors. Thereafter, and during the pendency of this action, VerMeulen instituted voluntary bankruptcy proceedings in the Federal court at Des Moines. Following this action, J. Wayne Hill, who was appointed trustee in bankruptcy, was substituted as plaintiff herein, and this action was thereafter prosecuted in his name. The trustee filed an amendment to plaintiff's amended and substituted petition, adopting the allegations thereof, alleging that the transfer in question was made within three months prior to the institution of the bankruptcy proceedings, and praying relief upon the ground stated in the prayer of the substituted petition. The claim of the trustee that the transfer was made less than three months prior to the proceedings in bankruptcy was wholly ignored by the court in its decree, which was based upon the finding made that the transfer from VerMeulen to appellant was *Page 1281
without consideration and wholly fraudulent, as against the creditors of the former. The decree established the judgment in favor of Hawkins as a lien upon the property in controversy, ordered that special execution issue, and that the property be sold thereunder. It was further provided therein that the proceeds derived from such sale should be applied as follows: First, to the payment of the costs of this action; second, to the payment of the costs in the law action in which the judgment was obtained; third, that the amount of the lien claimed by Hawkins's attorney on the judgment be paid; and fourth, "then pay to the trustee in bankruptcy the balance collected from the sale of said property, not to exceed the amount of said judgment and interest remaining unpaid." The decree further provided that, in the event that the property, when sold on special execution, did not bring enough to satisfy the Hawkins judgment, appellee Hill, trustee in bankruptcy, should qualify as receiver, to take immediate possession thereof, upon the filing of a bond for $500. Appellant resided on the property, and, according to the testimony, VerMeulen, who is a cousin, boarded with her. The decree further ordered appellant and VerMeulen to remove from the premises within 30 days from the date on which the receiver should file a bond, and that, in the event that they failed to do so, a writ of possession should issue for their removal. It thus appears that the relief granted was for the sole and exclusive benefit of Hawkins. The rights and claims of all other creditors, if any, represented by the trustee in bankruptcy were ignored. The trustee has not appealed.
It appears from the record that, very shortly after the judgment for $4,000 was obtained by Hawkins against VerMeulen, proceedings auxiliary to execution were instituted. The testimony in the auxiliary proceedings was taken by an 1. EVIDENCE: official court reporter as commissioner, evidence in transcribed, duly certified, and filed in the other office of the clerk of the district court of proceeding: Polk County. Although appellant was not made a inadmissible party to the auxiliary proceedings, she was against called and examined as a witness in behalf of non-party. the judgment creditor. VerMeulen was also examined as to his property, with particular reference to the transfer complained of. The evidence introduced by appellee upon the trial of this action consisted of a transcript of the testimony *Page 1282
of appellant. The remaining testimony showed the bankruptcy proceedings, and included certain remote transactions and circumstances of little weight, and much of it of doubtful relevancy. The transcript of the testimony of VerMeulen was admitted without objection. The transcript of the testimony of appellant was received, however, over her objections. The sufficiency of the objection interposed is questioned on this appeal. Her objection, as disclosed by the record, was that the transcript of appellant's testimony showed that it was taken in another proceeding, to which she was not a party, and that it was not the best evidence. The objection was overruled. At the conclusion of the reading of the transcript, appellant moved that the same be stricken, upon the grounds previously urged, and upon the further ground that no foundation had been laid for the introduction thereof. The motion was likewise overruled. The objection interposed to the offer of the transcript should have been sustained. The statute under which a transcript is admissible (Code, 1927), is as follows:
"Sec. 11353. The original shorthand notes of the evidence or any part thereof heretofore or hereafter taken upon the trial of any cause or proceeding, in any court of record of this state, by the shorthand reporter of such court, or any transcript thereof, duly certified by such reporter, when material and competent, shall be admissible in evidence on any retrial of the case or proceeding in which the same were taken, and for purposes of impeachment in any case, and shall have the same force and effect as a deposition, subject to the same objections so far as applicable."
As stated, appellant was not a party to the action in which her testimony was taken, and the transcript was not offered for the purpose of impeachment. There was nothing in the record to impeach. We have frequently had occasion to interpret and apply Section 11353. Connell v. Connell, 119 Iowa 602; Spiers v.Hendershott, 142 Iowa 446; In re Will of Wiltsey, 122 Iowa 423;Rudd v. Dewey, 139 Iowa 528; Lush v. Incorporated Town ofParkersburg, 127 Iowa 701; Walker v. Walker, 117 Iowa 609; Knappv. Brotherhood of American Yeomen, 149 Iowa 137.
Some contention is made by appellee that the transcript was admissible for the purpose of showing admissions of appellant. *Page 1283
No proper foundation was laid for the introduction of the transcript or any part thereof for this purpose. No attempt was made in the trial of this case to identify it as the testimony of appellant. It is true that it bore the certificate of the commissioner, and that was sufficient for the purposes of the record in the proceedings auxiliary to execution. It is clear that the transcript of appellant's testimony was not admissible, and should not have been considered in this case.
The transcript of appellant's testimony being excluded, the record contains no evidence either that the transfer was without consideration or that it was in fraud of creditors. This was the view expressed by the trial court at the 2. FRAUDULENT conclusion of the evidence for appellee. CONVEYAN- Appellant was, however, called as a witness in CES: her own behalf. She testified that she paid remedies of value for the property, $274.44 of which was creditors: paid in cash, and the balance by the surrender evidence: of three notes which he was owing her, to weight and VerMeulen, and the satisfaction of other suffi- indebtedness due her. Three notes for $900, ciency: $800, and $700, respectively, were introduced in self-im- evidence. In addition thereto, a memorandum of peaching account claimed to have been kept by appellant evidence. of transactions between herself and VerMeulen was also received in evidence. The testimony of appellant is not disputed by any witness in the case.
It is contended by appellees that it is unworthy of belief, and that the documentary evidence introduced by her carried on the face thereof inherent evidence that it was manufactured solely for the purpose of this case. The affirmative testimony of appellant, which is positive in character, cannot be held to have proven the negative. Unless the evidence of its falsity is inherent therein as a whole, or in such part as to discredit the whole, it cannot be rejected by this court. Fact issues in equity cases triable de novo on appeal must be determined strictly upon the record filed in this court. It is claimed by appellees that the book account shows upon its face that it was recently made out; that each and every entry therein was made at the same time, with the same lead pencil; and that this is also true as to the notes. No evidence whatever was offered by appellees for the purpose of proving this contention. The notes bore the appearance of age and genuineness. If they were rubbed and discolored *Page 1284
by appellant, or someone for her, for the purpose of giving them the appearance of age, the evidence does not show it. This court, in the absence of a syllable of evidence to sustain it, cannot say that the documentary evidence offered manifests inherent evidence that it is a mere fabrication. There is in the record but a single circumstance bearing on this subject. It appears that appellant was asked, at a creditors' meeting, to present the notes and account book to which she in her testimony referred. She did not comply with this request. We find no explanation of appellant's failure in this respect in the record.
A single remaining circumstance may be mentioned: that is, that the deed to appellant was delivered to the recorder for record by VerMeulen, about the date judgment was obtained against him. Whatever view may be taken of appellant's testimony, the fact remains that appellees wholly failed to prove that the transfer complained of was without consideration, or fraudulent as against creditors. The decree subjecting the property to execution for the satisfaction of the judgment can only be sustained, if at all, upon the record as a whole. If appellant's testimony was wholly excluded, the decree entered below could not be sustained. This for the reason that the appellee wholly failed in chief to make out his case. We cannot, on the record, hold that appellant's own testimony, which is without dispute in the record, is so inherently false as to make out a case in favor of her adversary. Mere ground for suspicion does not make a case in favor of a creditor seeking to subject property conveyed to a third party to execution. Mulvaney v. Buckley, 190 Iowa 1119. The evidence in such case, to justify the setting aside of a transfer of property at the suit of a creditor, must be clear, satisfactory, and convincing. Harvey v. Phillips, 193 Iowa 231, and cases therein cited. Whatever may be the truth as to the genuineness or falsity of the documentary evidence offered in this case, the evidence before us is not sufficient to impeach it. —Reversed.
MORLING, C.J., and EVANS, FAVILLE, ALBERT, KINDIG, WAGNER, and GRIMM, JJ., concur. *Page 1285 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430257/ | This case comes from the municipal court of the city of Des Moines, the total amount involved being $2.25, hence it is here on a certificate.
The statutes governing municipal courts are to be found in chapter 475 of the Code of Iowa, being sections 10642 to 10696. The court has jurisdiction of amounts up to $1,000, except in matters of probate, actions for divorce and alimony, separate maintenance, and juvenile proceedings, unless otherwise ordered, and those affecting the title of real estate.
The proceedings in the court are regulated by statute and are generally like the proceedings in the district court. The officers of the court other than the judges are a clerk and bailiff. *Page 927
The duties of the clerk are practically the same as those of a clerk of the district court, and the duties of the bailiff are practically like those of a sheriff or constable.
In this case, the former Great Western Accident Insurance Company, now the Great Western Insurance Company, commenced an action in the municipal court of the city of Des Moines against one C.F. Saunders, which resulted in a judgment against the said Saunders, and in favor of the plaintiff, on a money demand, and in addition thereto the costs of the action, which were taxed by the clerk as $2.25, consisting of four items: Court trial 75 cents, entry judgment 75 cents, tax and satisfaction 75 cents. This was entered on the 13th day of October, 1916. On the 5th day of November, 1935, the clerk of the municipal court issued a fee-bill execution which was placed in the hands of the bailiff, and was returned with the following indorsement: "Unable to find any information as to defendant in this case. Returned unsatisfied this 13th day of November, 1935, E.L. Brookins, Bailiff, by W.T. Chester, Deputy."
On the 4th of January, 1936, the city of Des Moines filed its motion to tax costs in the case against the plaintiff for the reason that the fee-bill execution had been issued against the defendant in accordance with section 11754 of the Code, and same had been returned by the bailiff unsatisfied.
The plaintiff filed its answer or resistance to the motion of the city in four divisions:
1. Setting up that the claim, if any, the city had, was barred by the statute of limitations, and particularly paragraph 5 of section 11007 of chapter 487 of the 1935 Code.
2. That the costs of service were for services performed prior to the 13th day of October, 1916.
3. That even if the claim of the city were not barred, the city of Des Moines, or any one else in its behalf, had no right to recover by motion, or otherwise, any costs against it in the above action, and that the city of Des Moines was not the real party in interest.
4. That even tho the city were the real party in interest, it had not performed the statutory conditions precedent to entitle it to recover in this case.
On the 14th of October, 1936, a motion to retax costs was *Page 928
overruled. The amount involved being less than $100, the case comes to us on appeal on certificate of the trial judge.
Section 10688 fixes the salary of the municipal judge, the annual salary of the clerk, and of the bailiff, which salaries are payable one month from the city treasury and one month from the county expense fund.
So taking the provisions of these sections, it will be seen that these funds that the movant, appellant here, is undertaking to collect, belong to the city for the reason they are to be turned over by the clerk to the city, and go into the city treasury, out of which one-half the salary of the judges and bailiffs are paid.
The trial court denied the motion and the city has appealed, coming up on certificate of the trial judge.
It is urged by the appellee that the claim of the city is barred by the statutes of limitation. The costs were for services performed prior to October 13, 1916, and that has raised the question which, it seems to us, is controlling in this case. The City on its part claims the statutes of limitation had not run against it because it is acting in a governmental capacity in establishing and carrying on a municipal court.
The City states the statute of limitation does not run against a municipality in the exercise of its governmental function, and to this cites, Johnson v. City of Shenandoah, 153 Iowa 493, 500,133 N.W. 761; Bridges v. Town of Grand View, 158 Iowa 402,139 N.W. 917; 6 McQuillin on Municipal Corporations (2d Ed.) sec. 2653; City of Waterloo v. Union Mill. Co., 72 Iowa 437,34 N.W. 197, 198.
The first case cited is a case involving the boundaries of streets and alleys, and between public and private owners, and it was held that such boundaries cannot be established by acquiescence.
In the Bridges case the controversy was over a street line, but in that case the city was held estopped by reason of acquiescing for a long period of years.
The proposition as made may be accepted. The question here is whether or not such claim arises under a governmental function of the city.
The Waterloo case says the powers given by the legislature to a municipal corporation to establish and maintain streets are exercised in the discharge of its governmental functions, and the *Page 929
statute of limitation will not run to defeat the exercise of such functions. The opinion says:
"The statute of limitations, therefore, will not run to defeat the exercise of its governmental authority. In cases wherein arise questions involving property or contracts which do not pertain to the exercise of their authority, the statute will run," citing Davies v. Huebner, 45 Iowa 574.
In the Davies case it was held by Judge Rothrock, where there had been an entire nonuse of the highway for a period of 30 years, and half of the same in width had been inclosed, fenced, and in open, notorious and adverse possession for more than ten years, that the public would be estopped to claim any right in the part thus inclosed. The other half having been but recently inclosed, the right of the public thereto had not been impaired.
The case of Burlington v. B. M. Ry. Co., 41 Iowa 134, was also cited. This was a case by a municipal corporation to recover taxes that had become delinquent more than five years before the commencement of the action, and it was held it was barred by the statute of limitation, saying, "A tax is a debt. It is immaterial whether the debt be with a private person or with the government; a debt is thereby created that becomes a common law obligation." And the opinion further says: "A tax is a debt, taking precedence over all others. A mere provision for collecting taxes by distress and sale is a cumulative and not an exclusive remedy."
In the Burlington case the opinion was written by Judge Beck. The city of Burlington each year, from 1862 to 1871, inclusive, levied taxes for municipal purposes upon the real and personal property of the Burlington Missouri River Railroad Company. These taxes remaining unpaid, on the 17th of September, 1872, suit was instituted for their recovery. The defendant pleaded the statute of limitation. The lower court held that all taxes becoming delinquent more than five years prior to the commencement of the action, are barred by the statute of limitation, which provides that all actions "founded upon unwritten contracts * * * and all other actions not provided for in this respect" may be brought within five years, and not afterwards. The question is raised whether the city is an instrument *Page 930
of the state in exercising the functions pertaining to government. On page 141 of the opinion it is said:
"We conclude that the action, as to all taxes levied for the year 1866, and prior years, is barred. It may be maintained for the taxes of the subsequent years."
The citation from 6 McQuillin on Municipal Corporations (2d Ed.), section 2653, says in part:
"Ordinarily, all the consequences of notice, laches and lack of diligence apply to a municipal corporation with the same effect that those matters do to private corporations or individuals." It further says, "It is generally held that the statute of limitations may be interposed as a defense in an action by a municipal corporation to enforce rights held by it in its private or corporate capacity, but that it is no defense in actions by the municipality involving public or governmental rights. Accordingly, the prevailing rule is that title to public streets and highways which have not been abandoned by the municipality cannot be acquired by adverse possession."
[1] But it must be borne in mind that this action is by the city to collect some unpaid costs from the plaintiff, through the issuance of a fee-bill execution. These costs had been incurred almost twenty years before. The city moved for the fee-bill execution. This is a special proceeding.
[2] It is claimed that the city was in the exercise of government functions when it instituted the municipal court. True, but it does not necessarily follow that the city is in the exercise of municipal or government functions in this case, when it is undertaking to collect costs of the character here involved after a lapse of time that existed in this case.
The appellee cites State Ins. Co. v. Griffin, 84 Iowa 602,51 N.W. 63. In this case, in which one Callender was a justice of the peace, after leaving office he undertook to collect a fee-bill issued against the insurance company in a judgment brought before him while justice of the peace. A transcript was filed in the office of the clerk of the district court. In August, 1889, the judgment being uncollected and the costs unpaid, Callender procured a fee-bill to be issued for all the costs, which included the sum of two dollars due him as justice of the peace.
That was exactly the proceeding taken here, except the case *Page 931
still remained in the municipal court. Judge Rothrock in passing upon the case, said on page 604 of 84 Iowa, on page 63 of 51 N.W.:
"It appears to us that a fair consideration of these statutes shows quite satisfactorily that the fees in controversy cannot be said to be a judgment against the plaintiff. If they were a part of the judgment, no motion would be necessary to recover them. That costs of this character cannot be collected upon execution upon the judgment is plainly implied from section 2935, which is as follows: `All costs accrued at the instance of the successful party, which cannot be collected of the other party, may be recovered on motion by the person entitled to them against the successful party.' It will be observed that this contemplates a recovery upon a motion. It is in the nature of a special proceeding. It is a proceeding for the recovery of a money demand, and it is, in effect, an action for the recovery of money. The costs cannot be tacked onto the judgment so as to suspend the operation of the statute of limitations; and Callender could not, by omitting to cause the fee-bill to be issued, prolong the statute of limitations, even if the remedy by motion were exclusive."
The section referred to in this opinion of Judge Rothrock (2935) is now section 11626 of the Code.
In Polk County v. Zell G. Roe et al., 164 Iowa 302,145 N.W. 868, in an opinion by Judge Evans, an action was brought to recover of Roe as justice of the peace, on behalf of the county, for civil fees collected by him during his two years as justice, amounting to $1,278, which at all times had been retained by him, under the statutes as they then existed, wherein he was allowed by the board of supervisors to retain the sum of $500 per year, or a total of $1,000. This was the maximum allowance permitted by the statutes. An action to recover the balance of $278 was begun August, 1912. The action is against Roe on his bond.
Under the statutes it was necessary for the justice to make a report to the board of supervisors showing the amount of fees collected by him, together with vouchers for the sums paid to the proper officer. Under this statute there was due from the defendant a report on the first Monday of January, 1908, and likewise in January, 1909. He made no such report on said dates, or during said time. A cause of action on his official bond *Page 932
arose. It was said that even a failure of the board of supervisors to make an allowance of the amount he might retain would not justify him holding onto the part of the fees collected that did not belong to him, and he was in default for the balance; that the statute of limitation had fully run three years after the first Monday in January, 1909. This was a ruling of the lower court on a demurer to the petition, and the Supreme Court in its opinion affirmed it.
The fees in this case sought to be collected, when collected, would be turned over to the city treasury to go into the general funds of the city, out of which the judge's and bailiff's salaries would be paid; also other claims against the general fund. It would go in just the same as taxes go in. It is just the same as office receipts go in. Such things have been held to be debts and to be barred by the statute of limitation, even when a city undertakes to enforce them. They then stand upon the same footing as all other funds that go into the general fund of the city treasury. It would be absurd to say that in these matters the city should be protected any more than anybody else.
If we are to adhere to the ruling laid down in the Burlington case, 41 Iowa 134, and if we are to adhere to the ruling laid down in State Insurance Company v. Griffin, 84 Iowa 602,51 N.W. 63, and if we are to adhere to the case of Polk County v. Zell G. Roe, 164 Iowa 302, 145 N.W. 868, we must hold that the claim of the city in this case is barred by the statute of limitation. Therefore, for these reasons, the decision of the lower court is affirmed. — Affirmed.
RICHARDS, C.J., and STIGER, KINTZINGER, MITCHELL, ANDERSON, SAGER, HAMILTON, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430262/ | The principal question argued is whether the settlement is in the interest of the depositors. The receiver, while filing a general denial, and setting up his reasons for the settlement, further in answer asked:
"If there is any just, valid, or legal reason for holding that the same is not a good settlement, and not for the best interests of the depositors, that then the court make such orders in the premises as will restore it status quo."
On the face of the guaranty, the directors apparently guaranteed payment of bills receivable amounting in the total to $394,775.63, of which $270,984.26 is classified as doubtful. The amount now claimed on the guaranty is $256,943.33. Before the bank closed, the directors had deposited their notes for upwards of $81,000, for the purpose of carrying through a merger with another bank, and had agreed to a stock assessment. They appear to have property subject to execution approaching in value the amount of the guaranty. The settlement made and approved was for $36.000. Over against this startling contrast are the facts that the application is made by only five depositors. The total number of depositors and the total amount of deposits do not appear, further than that, at a depositors' meeting, 200 to 250 are said to have been present, and the receiver asserts in argument (apparently with the acquiescence of applicants) that the total amount of deposits is $470,000. The deposits of the five applicants are $10,720.79. The settlement was approved by the five members of the depositors' committee (acting in this respect, however, individually, but apparently with the acquiescence of all depositors except applicants). It was approved by the examiner in charge, by the banking department, by the attorney-general, and by the court ex parte. Judge Kelley, of the twelfth district, was specially assigned to *Page 714
hear the present application, and after a trial, announced not only his concurrence in the ex-parte order, but also affirmatively his conclusion that it was for the best interest of all concerned that the settlement be allowed to stand.
Applicants complain that the trial court did not pass upon the validity of the guaranty. At the time of the settlement, the directors claimed that the guaranty was without consideration. The settlement was approved December 2, 1924. The order of confirmation entered on the trial of this proceeding was made December 4, 1926. Our opinion in In re Estate of Prunty, 201 Iowa 670, handed down March 16, 1926, determining that in such a case there is a sufficient consideration, seems not to have come to the notice of the parties or the trial court. That case has recently been followed in Hills Sav. Bank v. Hirt, 204 Iowa 940. Under the rule of those cases, there was a sufficient consideration for the guaranty; but the question was an open one when the settlement was made. Though the guaranty is valid for such liability as can be proved to come within its terms, the question remains whether the settlement made upon it is in the interest of the depositors. The validity of the covenant of the guaranty on its face is but one factor. Abstractly, it may be valid and actionable. Concretely, the question still is, What amount of recovery upon it, if any, is warranted by the facts?
The guaranty is dated December 27, 1922. It recites an examination of the bank, from which the superintendent of banking and examiners had expressed the "opinion that the following described bills receivable or other assets of the party of the second part are of doubtful value. (A list of said assets being attached hereto, and identified as Exhibit A.)" In terms, the directors "severally hereby guarantee payment on or before three years from this date of each and every said bills receivable or any renewals of the same, and hereby waive notice of the acceptance of this guaranty and agree that this guaranty shall continue in full force and effect until the bills receivable or renewals thereof have been fully converted into cash." Exhibit A of the guaranty is made in three columns: the first headed "Name of Borrower," the second, "Total Amount in Bank," and third, "Amount Doubtful." There are some 42 borrowers listed, the amounts against them ranging from $75 up to $35,723.52. Most of them are large amounts. As illustrations, *Page 715
we may take the following items opposite the names of different borrowers: One item shows total amount in bank $3,500; amount doubtful, $2,000. Another item shows the total amount in bank $6,037.80, amount doubtful, $6,037.80; another, total amount in bank $22,929.42, amount doubtful, $12,000; another, total amount in bank $35,723.52, amount doubtful, $35,723.52. Some 22 of the items have the same amount in both columns. That is, the amount doubtful is the same as the total amount in the bank. These aggregate some $175,000. The footing of the items in the column headed "total amount in bank" is $394,775.63. The footing of the doubtful column is $270,984.26. An appendix to the agreement, added before signing, provides:
"That when any of the above bills receivable listed in Exhibit A and classed as doubtful have been or are eliminated from the published assets of the Farmers Merchants State Bank, Washington, Iowa, either by cash, assessment, charging same to undivided profits or surplus reduced to undivided profits or by securities acceptable to the superintendent of banking said guarantors whose signatures are attached hereto, shall be released from payment of bills receivable as are eliminated in the above mentioned manner. Guarantors further reserve the right to exercise any of above mentioned methods to eliminate such doubtful bills receivable and that if an assessment is agreed upon same will be enforced as per the statutes of this state."
A question which to the court seems quite determinative receives but little attention from appellants in argument. That is, in applying the guaranty to the bills receivable of the bank, upon what ones and in what amounts would the receiver be entitled to recover of the guarantors? The applicants went into the subject with great thoroughness, by means of an audit made by a firm of certified accountants. These accountants returned to applicants an elaborate report, consisting of 13 pages of comments and explanations and nearly 300 pages of details of all notes found in the bank of borrowers named in Exhibit A to the guaranty. The report contained topical summaries, and also a general summary, consisting of three pages of notations and 22 columns of results of the examination with respect to each borrower. The guaranty is dated December 27, 1922. The bank closed April 28, 1924. The auditor's report to applicants is made as of May 31, 1925. In this report it is said: *Page 716
"We made no application of payments, so as to show only the net amount open, or to show such of the most recent notes that would make up such net amount, but show, in every case, all the loans and all the payments which result in the note which we were tracing.
"All the loans that were yet open on the date of this report, with the exception of those that were considered good and collectible, have been handled as outlined above, but there were cases in which persons, whose open loans were traced, had other loans during the period with which we have not concerned ourselves."
The report quotes from the instructions of applicants' attorneys as follows:
"`Secure a list of the notes as attached to the bond which was given by the directors in December, 1922. Take each note and follow it through the records of the bank so you will be able to testify exactly as to the disposition that has been made of each note.
"`Trace, as far as possible, the origin of all of the notes listed in the guaranty bond, that is, how and when they came into the assets of the bank.
"`Make your report in such form that the same will be on separate sheets as to each note with the names of any witness or witnesses that would be needed to establish the facts embodied in your report.'"
The report then proceeds:
"As a matter of fact, the list attached to the bond proved to be, not a list of individual notes, but a list of lines of credit, each one of which was made up of from one to ten notes. In consequence it was necessary for us to search through the old Liability Ledger sheets for all notes that were open on each particular line on December 20, 1922, before we could establish a list of notes that would be in agreement with the existing list of lines of credit. This list is set out as a part of Exhibit A. Opposite each borrower's notes has been placed the amount of his line of credit, or in the language of the agreement, the `Total Amount in Bank.' In all cases, loans which were open on December 20, 1922, were found to exactly equal the `Total Amount in Bank' except in the four instances noted on the exhibit. Also, set out on Exhibit A is a column totaling $270,984.26 which *Page 717
is made up of amounts referred to in the agreement as being the `Amount Doubtful.'"
Here follows a reference to the report of objectionable assets made by the examiner in charge. The auditor's report then proceeds:
"We have not attempted to designate which of the open notes are renewals of notes guaranteed in the agreement of December 27, 1922. To make such a determination would, except in a few cases, be an extremely difficult and involved task, even with the exhibits and schedules now available, and we call attention to the fact that no one could have formed a dependable conception of what amount of guaranty notes were open on any date very far removed from December 20, 1922." (Here follows an illustration.)
The detail sheets sustain this conclusion.
Applicants have not introduced evidence or pointed out how from the detail sheets the "extremely difficult and involved task" referred to by their accountants can be performed, or how anyone can form "a dependable conception of what amount of guaranty notes were open on any date very far removed from December 20, 1922," — that is to say, when the accountants made their examination, or when the hearing now reviewed was had, how could then, or how can it hereafter, be ascertained what notes in the bank are within the terms of the guaranty? The accountants seem to have had the advantage of everything that would help solve the problem. One of them testifies (referring to summaries):
"Column 10 is a listing of increases in the lines of credit subsequent to December 20, 1922. The total increase in the lines is $28,415.91. These are increases over and above the total line of credit set out in the guaranty, the increases being made subsequent to the date of the guaranty.
"Column 11 is a listing of the balance of the total lines of those debts remaining unpaid May 31, 1925, and amounts to $258,833.33.
"Column 12 contains a listing of the balance of the items listed as doubtful in Exhibit A attached to Exhibit 1 as of May 31, 1925, leaving a balance of $188,433.99.
"Column 13 contains a listing of three items to which the examiner in charge, Mr. Morrison, takes exception for the reason *Page 718
that his records are not entirely clear or do not entirely agree with our setting up of those items.
"Column 15 contains a statement of the items paid in these lines of credit from June 1st to November 30, 1925, inclusive, the amount being $3,350.
"Column 16 shows the balance remaining unpaid November 30, 1925, of the total line without regard to whether doubtful or not, including increases as shown by the liability ledger and aggregates the amount of $256,943.33.
"Column 18 contains a detailed listing of the payments from the date of the guaranty up to November 30, 1925, applying the payments to the doubtful items. That totals $102,788.73.
"Column 19 contains a repetition of the detailed listing of notes charged off in one aggregate sum of $19,933.64.
"Column 20, shows the balance remaining unpaid November 25, 1925, of all items listed in Exhibit A of Exhibit 1 as doubtful after applying the collections as set out in Column 18 and notes written up as set out in Column 19 and totals $148,263.89.
"Column 21 sets out certain increases referred to in Column 10 and certain increases in part only referred to in Column 10 subsequent to December 20, 1922, and aggregates an amount of $17,185.83. That is on the theory that the payments received should be applied first to the payment of any additions to these lines covered by the guaranty after the guaranty was given.
"Column 22 shows the total unpaid November 30, 1925, after applying Column 21. It amounts to $165,449.72."
We find it unnecessary to go into deductions claimed and denied, which were of minor and also large amounts, totaling $82,551.64. While the auditor testifies that the balance remaining unpaid November 30, 1925, "of the total line, without regard to whether doubtful or not, including increase, as shown by the liability ledger, aggregates the amount of $256,943.33," it is, on his report and testimony, — i.e., on applicants' own showing, — a matter of speculation as to how much in detail, on a trial of the question of fact, could be proved to the satisfaction of a jury as a liability under the guaranty. Applicants' request of their accountants for names of witnesses is unanswered.
Applicants assert in argument that: *Page 719
"Counsel for the appellee Andrew have argued somewhat at length with reference to there being some doubt as to following the notes, and says that we did not in our evidence show that all of the notes were renewals. That is not true. All of the notes are renewals except approximately $28,000, all of which was covered heretofore in our argument. The burden is on them to show, and not upon us; and when we have shown that these notes are still the property of the bank, and show that these are renewals, by the numbers as they appear in the audit of Billings, Prouty
Tompkins, that is sufficient, so far as this case is concerned. All that counsel's argument amounts to is an attempt to throw dust in the air, to try and confuse the issue."
This is the only reply made by applicants to the argument of the appellees, based upon the accountants' report of the difficulty to determine which of the now open notes are renewals of notes guaranteed, and the impossibility of forming "a dependable conception of what amount of guaranty notes were open on any date very far removed from December 20, 1922." On the report of applicants' accountants, and on this argument, it would be very venturesome on the part of the court to endeavor to fix a sum which might reasonably be expected to be recoverable.
The court had undoubted authority to authorize a compromise.Knaffl v. Knoxville Bank Tr. Co., 139 Tenn. 240 (201 S.W. 775); 7 Corpus Juris 737; State v. Bank of Rushville, 57 Neb. 608
(78 N.W. 281); State v. German Sav. Bank, 65 Neb. 416 (91 N.W. 414). See Sherman v. Linderson, 204 Iowa 532. It is for the applicants, who are attacking it, to show good cause to set the settlement aside. The court should be slow to renounce the right of the great majority of the depositors to the $36,000, for the mere possibility of recovering a larger sum. It should at least be made to appear reasonably probable that the renunciation of the settlement would inure to the benefit of the depositors.
Applicants stress an agreement by the defendants by which, at one time, they agreed to contribute some $81,000 toward $110,000 that was to be raised from the stockholders, the amounts which the signers of the guaranty were thereby to pay being much larger than those they are required to pay under *Page 720
the approved settlement. For some days preceding the closing of the bank, an effort was being made to consolidate the Farmers
Merchants State Bank with a national bank. The national bank was making objections to the paper of the Farmers Merchants State Bank. As we understand the record, the stockholders of the Farmers Merchants State Bank, in order to effect the consolidation, agreed to raise $110,000, of which $81,000 was to be contributed by the directors, and the directors signed notes aggregating that amount. These notes were taken by the examiner, but the proposed consolidation failed, and the notes were returned to Mr. Morrison, the attorney. The examiner says that they were taken "with the understanding that they would be turned in to this other bank, if they would accept them and the consolidation went through. Well, it didn't go through, and I was bound by my agreement with these directors to return them to them; and so, when I left, I turned them over to Mr. Morrison, as my agent, to take charge of them and return them to the makers." A proposed assessment on stockholders was agreed to. On the evening after the bank closed, the directors met, and charged off $189,600 of the notes set out in the guaranty. We need not be detained with a discussion of the validity of this action, under the guaranty. These proceedings were taken evidently in the effort to effect the merger, which did not fail until early the following morning. Defendants might be willing to contribute $81,000 on such terms as were agreed upon in order to keep the bank going, and avert from themselves and the public the calamity of closing. They might also, for that purpose, accept an assessment. Such willingness is no evidence of legal liability to the bank, either on the guaranty or as recalcitrant officials; nor does the amount of the expenditures which they were thus willing to make throw any light on the amount of the notes which, when they signed the guaranty, and continuing to the time of the settlement, were within its terms.
The depositors' meeting, held shortly after the bank closed, appointed a committee of five, "to employ attorney to investigate this whole matter." This apparently was before any question came up about the guaranty, and, so far as appears, before its existence was known to the depositors. The committee *Page 721
employed Mr. Charles C. Clark, of Burlington, who spent a day in investigation, and reported:
"The officers were in pretty bad shape, and it didn't look like the depositors could get anything to amount to anything."
One of the committee testifies:
"He said, if we could get anything out of it, we had better take it, and not go to court. He said he would report to the attorney-general immediately."
It is not shown that the depositors made any investigation, by attorney or otherwise, into the proposed settlement, further than that the committee consulted with Mr. Morrison, who seems to have been representing the directors and acting as local attorney for the banking department, or for the attorney-general. Mr. Morrison recommended the settlement to the committee. He said that "$36,000 was all he could get of the signers." The committee evidently did not know what the responsibility of the signers was. They were told that suit could not be brought until the three years were up, which would be a year later, December 20, 1925. The directors had been making transfers of their property. They appear to be badly involved financially, and the extent of their responsibility was a matter of doubt. One of the committee testifies that Mr. Morrison told him, "if we got into litigation, it would take two or three years to get it disposed of. I was depending on you [Morrison] for pretty good authority. Q. And you were in favor of settling the matter, weren't you? A. I was in favor because you insisted. I had confidence in you, and relied on your judgment. I also relied on what Mr. Clark had told me. Jones, the bank examiner, was there, too, and he had been working upon" the settlement, "and advised us that he thought it was a good settlement, and we better take it, instead of carrying it into court." Another member of the committee testifies:
"I was at all times in favor of having the matter settled, and avoiding litigation. * * * I considered it better for the depositors, after that meeting, to take the 40 per cent, than to wait nearly a year and then begin the litigation. * * * Each of the members expressed himself to the effect that it would be the best to get the matter settled and to get the money, rather than have the delays and a question regarding this Exhibit 1." *Page 722
Another member says that they were led to believe that it would not bind the depositors; that the agreement to the settlement was merely their own individual consent to it; and that they stated that the committee had no authority to sign on behalf of the depositors. He testifies:
"The discussion as to what these men would be worth was a discussion as to what they would be worth, or what could be collected from them, at the end of a lawsuit, if we went through two or three years' litigation. * * * I absolutely believe that, in signing the consent, we did the best possible thing for the depositors, and I would sign it again tomorrow, on the same proposition."
He says that, in a measure, he was acting somewhat on Mr. Clark's advice. As has been stated, none of the depositors except the five appear to be objecting; but the court is asked to take from them the certainty they now have, on the hazard of their recovering more at the end of a lawsuit.
Without further particularizing, we are of the opinion that it is not shown to be in the interest of the depositors to set aside the settlement.
The applicants charge fraud in the settlement. The advisability of the compromise was tried in this proceeding de novo. Fraud or mistake in the original approval cannot affect the determination here. Fairness to those charged with the fraud demands brief attention. The charge is based largely upon Mr. Morrison's dual employment, and the absence of knowledge of the banking department of the financial ability of the directors. Mr. Morrison is not shown to have been acting in the interest of the directors at the expense of his other clients, nor his influence to have been determinative in making the settlement. The general examiner of the banking department in charge of the receiverships recommended the settlement. His knowledge at the time was not as complete as it was at the time of the trial. He says that, if he had felt that the guaranty could have been enforced without question, he would not have made a settlement. He did not have any doubt as to the signers' being good for any judgment that might be obtained. He says that he would still recommend the settlement. He admits that his information was different at the time of the trial from that when he recommended the settlement, and that, if he *Page 723
had then known what developed at the trial, he says, "if I had known that they were liable for the entire line, that would have made some difference in my recommendations to the court in connection with the settlement." On the evidence here, the general examiner would be as much in the dark as to the extent of the directors' liability as he was when he made his recommendations. Charge of fraud further is based upon the fact that the approval by the depositors' committee had appended to their names their designation as committee, while they testify that in signing they were acting individually. Neither in this nor in any other particular do we find any evidence of fraud.
The court reserved to the receiver authority at his option to sue on officers' and stockholders' liabilities, and provided that, if he brought no suit within 50 days, then any creditor, stockholder, or depositor might sue. The findings authorized such suit "under the theory" of a common-law liability or a statutory liability. The rights of depositors outside of the guaranty are thereby protected.
We are of the opinion that the approval of the settlement was a proper exercise of the authority and discretion of the court, and the order appealed from is — Affirmed.
EVANS, De GRAFF, ALBERT, and KINDIG, JJ., concur.
WAGNER, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430263/ | Briefly stated, the defendant was employed by the Miller Grocery Company, as a teamster. The evidence tends to show that, about the time charged in the indictment, the defendant took from the place of business of the Miller Grocery Company a large carton of Camel cigarettes, of the value found by the jury to be $57.50.
Two questions are raised in the case. The first is that there was no evidence of the wrongful taking of the property of the said company; and second, that the carton of cigarettes was not properly identified, so as to permit it to be in 1. LARCENY: evidence in the case. Some stress is laid in elements: argument on the law governing both propositions; disting- but, without stopping to review the authorities, uished from we think that one material difference between embezzle- larceny and embezzlement is the question of ment. intention. That is to say, when the property came into the possession of the defendant, if at that very time he had an intention to steal the same, this is larceny. State v.Minor, 106 Iowa 642; State v. Dobbins, 152 Iowa 632; Grin v.Shine, 187 U.S. 181, at 196. If, when the property came into his possession, he had no intention of stealing it, but the intent to take and convert it to his own use arose after it came into his possession, this would be embezzlement. Tredwell v. UnitedStates, 266 Fed. 350, at 352.
In addition to this intent, there must be a taking of the property: that is, there must be a trespass to make larceny. Where *Page 340
the goods are in the mere custody of a servant or other person who is not actually or apparently authorized to 2. LARCENY: pass the possession, his consent to a taking consent to will not prevent the taking from being larceny, taking: especially if the custodian colludes with the collusion taker in the theft. 36 Corpus Juris 759. If the between possession was obtained by fraud, artifice, or employees. deceit, even though with the consent of the owner, this would make larceny, all the other elements being present. State v. Dobbins, supra.
Briefly stated, the evidence in the case shows that, at the time in question, the defendant, who was a teamster, went to the third floor of the company's building, and had an interview with one Leiniger, who had charge of the tobacco department there located. He requested the said Leiniger to put this carton of cigarettes into a barrel and cover the same with rubbish, which was done; and the barrel containing said cigarettes and the rubbish was then taken by the defendant to his wagon, and hauled to the city dump. After the dumping of the rubbish, the carton of cigarettes was returned to the barrel by the defendant, and hauled by him to the company barn, where he was apprehended by the officers, and the property in question was found. To this evidence is added the admission of the defendant to officers and to some other witnesses in the case, that he took this carton, and that he had taken a number of other cartons of cigarettes from the plaintiff's place of business; that he had a stool pigeon sell the same, to whom he paid a commission, or with whom he divided the profits. This, to our minds, is sufficient evidence of taking and what his intention was at the time he took the carton of cigarettes, to take the question to the jury.
In the trial, the carton of cigarettes was offered in evidence; and the claim of the defendant is that it was not properly identified. One of the officers, Howard by name, who arrested the defendant with the carton of cigarettes in his 3. LARCENY: possession, testifies that he took the carton to evidence: the station and locked it in the office of the identifica- chief of detectives. It was then used before the tion of grand jury; and there can be no doubt, under the exhibit. evidence of both the officers and the manager of the grocery company, the testimony *Page 341
of Impson, the assistant manager, and Leiniger, the man who placed the box of cigarettes in the barrel, that the exhibit was sufficiently identified to take it to the jury. In fact, the objection made by the defendant to the exhibit when offered, does not point out this particular objection, except in a general way; but if it did, it would be unavailing to the defendant, because, under the evidence, we feel that it was properly admitted. —Affirmed.
FAVILLE, C.J., and EVANS and ARTHUR, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430266/ | The facts in the case are practically without conflict. The defendant, together with the decedent, one Stewart, and a man named Stover, in the afternoon of the 29th day of September, 1925, drove to the farm of one Smith, near the village of Grimes, in Polk County. Smith joined the party. There was drinking. A woman later joined the party, and in the afternoon they all drove to Des Moines. Stover was under the influence of liquor, and was placed in bed in a hotel. The other member's of the party returned to the Smith farm, and were there in the evening. There was drinking going on, and contentions and *Page 415
quarreling. It appears that Mrs. Smith ordered Stewart to leave the place, and he went from the house and got into a car. Some remark was made at the time to the appellant that Stewart was going to summon an officer, or "get the law." Appellant started out, apparently in quest of Stewart, who, at the time, was in the car. Some controversy arose between appellant and decedent. There is evidence to the effect that appellant called Stewart a coward, and that he hit at Stewart while the latter was in the car. Stewart got out of the car and started up the road, appellant following him. Appellant's contention is that he thought Stewart was going to hit him with a bottle which he had in his hand, and that appellant pushed Stewart, who lost his balance and fell and struck his head on a gatepost, resulting in his death. There is evidence tending to show that appellant had been drinking, and was abusive, and that he was angry. The record discloses a drunken brawl, the outcome of which was the death of Stewart, as the result of a blow or push administered to him by the appellant.
I. The appellant predicates error upon the claim that the court did not sufficiently instruct the jury on the question of accidental killing. The contention is without merit. The court instructed the jury to the effect that one of 1. HOMICIDE: the defenses of appellant was that the decedent instruc- came to his death as the result of an accident, tions: and explicitly charged the jury that this was defining not an affirmative defense, and that the burden "accident." was upon the State to satisfy the jury beyond a reasonable doubt that the decedent did not come to his death as the result of an accident, in order to warrant a conviction.
Complaint is made that the court did not, in more explicit terms, define the word "accident." Cases may arise where the questions involved are such that it would be the duty of the court to instruct specifically as to the proper definition of a word or phrase, but such is not the situation in the case at bar. The defendant was charged with the crime of murder in the second degree. His defense was that the death of the decedent resulted from an accident. The court carefully and explicitly instructed the jury upon each and all of the essentials of the crime charged and of the offenses included therein. In order for the jury to have found the defendant guilty of any one of these offenses, it *Page 416
would have been necessary for them to have found that the death of the decedent did not result from an accident, but from an unlawful act on the part of the appellant, with the essential elements to make the act criminal. Under the situation disclosed by this record, the jury could not have failed to understand their duty in the matter. The word "accident" has such a well known and generally understood meaning, as applied to a situation such as was disclosed in the instant case, that, in view of the instructions of the court as a whole, there could have been no prejudicial error resulting to the appellant by the failure of the court to instruct more explicitly. The instruction given by the court was in almost the identical language of a request by the appellant. There was no error at this point.
II. Appellant predicates error upon the refusal of the court to strike the testimony of the witness Jack Smith. The evidence was material and competent. The motion to strike was properly overruled.
III. Complaint is made that the defense of accidental killing was not referred to in certain instructions regarding the included offenses. It is a familiar rule that the instructions are to be considered as a whole. The court 2. HOMICIDE: cannot, in a case of this character, embody the instruc- various propositions of law involved in the case tions: in a single paragraph that shall cover every accidental essential question to be submitted to the jury. killing. Such an instruction would, of necessity, be involved, and undoubtedly misleading. When the instructions are considered as a whole, as they must be, the contention of the appellant is without merit.
IV. Appellant challenges the sufficiency of the evidence to support the verdict. The record presented a case for the consideration of the jury. The defendant's theory that the death of Stewart was the result of an accident was properly submitted to the jury. There is slight conflict in the evidence. The fact question was one peculiarly within the province of the jury, and their conclusion has sufficient support in the record.
Upon the entire case, we find no error warranting interference on our part, and the judgment of the district court must be, and it is, — Affirmed.
EVANS, C.J., and STEVENS, VERMILION, and KINDIG, JJ., concur. *Page 417 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4039153/ | Fourth Court of Appeals
San Antonio, Texas
February 4, 2015
No. 04-15-00005-CV
IN RE ESTATE OF JACK HIROMI IKENAGA, Sr., Deceased,
From the Probate Court No 1, Bexar County, Texas
Trial Court No. 2011-PC-4330
Honorable Polly Jackson Spencer, Judge Presiding
ORDER
Cheryl Hester’s extension of time to file the court reporter’s record is this date NOTED. Time is
extended to March 6, 2015.
PER CURIAM
ATTESTED TO: ______________________________
KEITH E. HOTTLE
CLERK OF COURT
cc: Shelayne Clemmer David L. McLane
Prichard Hawkins McFarland & Young Law Office of David L. McLane, PC
10101 Reunion Place, Suite 600 1924 N. Main Street
San Antonio, TX 78216 San Antonio, TX 78212-8610
Samuel Vance Houston III
Houston Dunn, PLLC
4040 Broadway St, Ste 440
San Antonio, TX 78209 | 01-03-2023 | 09-28-2016 |