url
stringlengths 56
59
| text
stringlengths 0
4.8M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/1760528/ | 114 Wis. 2d 29 (1983)
337 N.W.2d 837
STATE of Wisconsin, Plaintiff-Appellant,
v.
Alvin FOUSE, Jr., Defendant-Respondent.
No. 82-1806-CR.
Court of Appeals of Wisconsin.
Submitted on briefs April 29, 1983.
Decided June 7, 1983.
*30 For the plaintiff-appellant the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Chris Heikenen, assistant attorney general.
For the defendant-respondent the cause was submitted on the brief of Martin I. Hanson and John A. Becker of Hanson & Gasiorkiewicz of Racine.
Before Scott, C.J., Voss, P.J., and Brown, J.
BROWN, J.
The state appeals from the trial court's dismissal of receiving stolen property charges against Alvin Fouse. Following a bindover decision by the preliminary hearing magistrate, Judge Jon Skow, the trial court judge, Dennis Costello, reviewed the preliminary hearing transcript and concluded it contained no evidence to show Fouse knew the items were stolen. Because we conclude that the inference of knowledge drawn by Judge Skow from the evidence was reasonable, was sufficient to enable him to find probable cause and was one to which Judge Costello was required to defer, we reverse.
The evidence at the preliminary hearing showed that Alvin Fouse's home was searched on April 1, 1982. Fouse lives there with his wife; at the time of the search, his eighteen-year-old son was home on break from college, and a sixteen-year-old girl was in the residence. During the search, the police seized two commercial video games, a "quota phone" and a color television set; the devices had been stolen in three separate burglaries. They also photographed and noted the serial number of a video recorder but did not confiscate it. On April 2, the police, having ascertained that the video recorder had been reported missing after a fourth burglary, returned to the Fouse home. *31 The recorder was not in the home, and Fouse said the police had taken it the day before. When the officers told him the item had been left behind, Fouse retorted: "Well, then I guess maybe my house was burglarized and it was taken."
Judge Skow rejected a motion to dismiss on the ground that the evidence was insufficient to show probable cause Fouse knew the items were stolen. Although no direct evidence was produced on the subject, Judge Skow emphasized that four different stolen devices were discovered in Fouse's house. He apparently concluded that this factor gave rise to an inference sufficient to support a bindover.[1] Fouse challenged the bindover prior to trial, and Judge Costello dismissed the charges, stating:
In both reading the complaint and reading the transcript of the preliminary hearing, the Court does not find that there is probable cause or any evidence at all that the defendant knew that these items were stolen.
The principal dispute between the parties is what posture Judge Costello was required to assume in reviewing the bindover decision. The state posits that a trial court is bound by the appellate standard reiterated in State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 629, 317 N.W.2d 458, 461 (1982):
On review of a trial court's finding as to probable cause at a preliminary hearing:
*32 "... The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence."
Under this standard, the reviewing court may examine the record ab initio only if the lower court has failed to make findings of fact or where the principal facts and inferences therefrom are undisputed. See id. Fouse disagrees, arguing that a trial judge is entitled to conduct an independent evaluation of the record and decide anew whether probable cause has been established.[2] He contends that a passage in State v. Hooper, 101 Wis. 2d 517, 537, 305 N.W.2d 110, 120 (1981), supports this conclusion:
Following a bindover, it becomes the duty of the district attorney to review and weigh the preliminary hearing evidence and file charges in the information in accordance with that evidence. [Emphasis in original.] The trial court may then on a challenge to the bindover review the evidence produced at the preliminary to determine if it established probable cause to believe that a felony was committed and that the defendant committed it. However, where the challenge is not to the bindover decision, but to the specific charge recited in the information (as in this case), we hold that the trial judge's review is only as to the question of whether the district attorney abused his discretion in issuing a charge not within the confines of and "wholly unrelated" to the testimony received at the preliminary examination. [Emphasis in original and added.] *33 For several reasons, we think that Fouse sees too much in this language.
First, although the court did in this language indicate that a trial court may review the preliminary hearing record, it did not specifically indicate what standard of review the trial judge must use. Second, even if the above-emphasized sentence in the Hooper quote can be read to support Fouse's position, it has little precedential impact as it is dicta. At issue before the Hooper court was the appropriate trial court standard for reviewing the charging decision of the prosecutor after the preliminary hearing, not the proper trial court posture when the defendant challenges the sufficiency of the evidence to support the bindover. Third, in addition to the above-quoted passage, there is language in Hooper supporting the state's contention that all reviewing courts (including trial courts) must employ the appellate standard:
Following the preliminary hearing, the presiding judge is charged with the duty of weighing the evidence and determining whether it establishes probable cause to believe that a felony has been committed and that the defendant has probably committed it. [Emphasis in original.] Sec. 970.03. Thus, the decision as to whether a defendant should be bound over for trial to the circuit court is exclusively within the realm of the presiding judge. [Emphasis added.]
Id. at 533-34, 305 N.W.2d at 118-19.
[1]
Fourth, and most importantly, the state's position makes the most sense. We see no good reason why a second circuit court should be vested with the authority to determine ab initio a question already decided by a court of equivalent stature. To recognize such a step in the criminal process would foster unnecessary delay in the administration of justice. In addition, a trial court faced with a challenge to the bindover has before it not the *34 benefit of live testimony but, like the appellate tribunal, only a transcript of the preliminary proceedings. It follows that whatever reasons compel the requirement that an appellate court give deference to the original fact finder apply with equal force to reviewing trial courts as well. Cf. State v. Williams, 104 Wis. 2d 15, 21-22, 310 N.W.2d 601, 604-05 (1981).
Because Judge Costello was bound by the same standard of review as appellate courts, we owe his decision to dismiss the charges no deference.[3] Instead, we must review Judge Skow's finding of probable cause to determine "whether there was any substantial ground for the exercise of [his] judgment." Funmaker, 106 Wis. 2d at 629, 317 N.W.2d at 461. See footnote 2. His decision to set the matter for trial meets this test.
[2,3]
The preliminary hearing magistrate's function is to determine whether there is a reasonable probability to believe that a felony has been committed by the accused. State ex rel. Cholka v. Johnson, 96 Wis. 2d 704, 711, 292 N.W.2d 835, 839 (1980). In reaching his or her conclusion, the judge is to be guided by the practical and nontechnical probabilities of everyday life. Id. at 714, 292 N.W.2d at 841. In our view, the expectations of everyday experience permit the drawing of an inference of knowledge from the unexplained presence of several large stolen electronic devices in the residence of an accused. Indeed, similar inferences have been judicially sanctioned. Cf. State v. Lund, 99 Wis. 2d 152, 162, 298 N.W.2d 533, 538 (1980); State v. Spraggin, 71 Wis. 2d 604, 618, 239 N.W.2d 297, 308 (1976). We recognize that it is not the only inference that could have been derived from the evidence; *35 however, it is not the function of the reviewing court to substitute its judgment for the reasonable conclusions of the committing magistrate.[4]
By the Court.Order reversed.
NOTES
[1] Judge Skow made his comments concerning the inference of knowledge raised by the possession of the stolen items before testimony was introduced at the preliminary. Although his statements were in response to a motion to dismiss the complaint, there is no reason to believe they did not apply to his rejection of the defense objection to the bindover. The complaint alleged the same information as was shown by the preliminary hearing testimony. Also, the defense attorney's argument after the preliminary hearing testimony was heard referred to the court's prior ruling.
[2] Fouse does not argue this is a case where the trial court has failed to make findings or where the facts and reasonable inferences are undisputed such that even under Funmaker the reviewing court is permitted to undertake an ab initio review.
[3] Our reading of Judge Costello's ruling leads us to believe he was using the appropriate standard. In effect, he was saying that, as a matter of law, the inference drawn by Judge Skow was not a permissible one. As will become apparent from the text of his opinion, it is with this conclusion that we disagree.
[4] In addition to arguing that the record does not support the conclusion that he had knowledge the goods were stolen, Fouse contends there is nothing in the preliminary hearing testimony to show he had a "possessory interest" in the items. This contention was not focused on at the trial court level. This is not decisive, however, as the gravamen of a charge under sec. 943.34, Stats., is that the accused either received or concealed stolen property. The latter embraces those who render the discovery of the stolen items more difficult without their having been the thief or recipient of the property. State v. Spraggin, 71 Wis. 2d 604, 614, 239 N.W.2d 297, 305-06 (1976); Wis. J I Criminal 1481. The record contains sufficient evidence for Judge Skow to have inferred there was a reasonable probability Fouse acted to conceal the devices. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3430271/ | The original transaction under investigation herein occurred in 1923. It consisted of negotiations for a bond issue for the benefit of Joseph Zwart upon a certain leasehold interest in real estate owned jointly by Zwart and Clarkson. These two men were brothers-in-law. Clarkson and Mrs. Zwart were brother and sister. The record title of the leasehold interest was in Zwart, but Clarkson was the equitable owner of a one-half interest therein. Zwart besought Clarkson to permit him to negotiate a bond issue for $60,000 by means of a trust deed upon the property. The request was acceded to by the Clarksons and a bond issue of $60,000 was negotiated upon the security of a trust deed of the property. We avail ourselves of the purported statement of facts contained in appellants' brief as follows:
"That on or about the 3rd day of August, 1917, Joseph S. Zwart, now deceased, procured a lease of certain real estate described in plaintiffs' petition for a period of forty-four years from August 1, 1917; that immediately thereafter plaintiffs entered into an oral contract with said Zwart for the erection of a building on said leased premises in which the interests of the contracting parties should be equal, and one-half of the net income therefrom should be accounted for to plaintiffs; that said building was constructed in accordance with said oral agreement, each party thereto contributing one-half of the cost thereof, and the net income therefrom was divided between said parties equally until the death of said Zwart which occurred on or about the third day of December, 1929.
"That during the spring and summer of 1923 Joseph S. Zwart and his then wife, Bertha C. Zwart, a sister of plaintiff John R. Clarkson, solicited plaintiffs to consent to an encumbrance of all *Page 328
the rights of plaintiffs and themselves in and to said premises to secure an issue of bonds upon which to procure funds for Mr. Zwart's own personal use and as an accommodation to him; that after much solitation, and on or about the 18th day of October, 1923, and solely as an accommodation to said Joseph S. Zwart, and relying upon assurances then made to them by said Joseph S. Zwart and Bertha C. Zwart that they would secure them and that they would reconvey such interest back to them (the plaintiffs) within ten years, free and clear from such contemplated encumbrance andall other encumbrances that might be placed upon said premisesthereafter, said plaintiffs executed and delivered to said Zwart, without any consideration whatever, therefor, their quit-claim deed quit-claiming to said Joseph S. Zwart, and solely for said purpose as above stated, all their interest in and to said premises.
"That at the same time and as a part of the same transaction the said Joseph S. Zwart and his wife, Bertha Clarkson Zwart, entered into said written contract with plaintiffs to reconvey said one-half interest in said premises to plaintiffs, and upon failure to so convey according to said contract, to pay plaintiffs the sum of $40,000 as compensation and liquidated damages.
"That on or about the first day of November, 1923, said Joseph S. Zwart and Bertha C. Zwart executed and delivered to the Central Trust Company of Des Moines, Iowa, as trustee, a trust deed conveying said premises to secure the payment of an issue of bonds in the sum of $60,000.00; that the defendant Iowa-Des Moines National Bank Trust Company became the successor and acting trustee in said trust deed; that said Joseph S. Zwart died intestate on or about the 3rd day of December, 1929, and Donald J. Metcalf was duly appointed and qualified as administrator of said estate, and is still acting as such; that a claim was filed against said estate by said trustee claiming a balance due on said bond issue of $38,000.00; that in January or February, 1931, said administrator filed a report and application to the court stating that he had an opportunity, as administrator, to pay, discharge, and satisfy said claim and all of said bonds remaining unpaid, and the lien of the trust deed, by conveyance of all of the estate's interest in and to said premises, to a committee representing said bondholders, and praying an order of court authorizing the payment of said bonds by that means. That on or about the 21st day of February, 1931, notice was given Donald J. Metcalf, as administrator of said estate, and the Iowa-Des *Page 329
Moines National Bank Trust Company, Trustee, by the plaintiffs herein that they claimed an undivided one-half interest in said premises, which said notice and service thereof was accepted on the same date by said trustee as shown by Exhibit `D', page 199, commencing line 32, and continuing to line 23 on page 201 of appellants' abstract now on file herein.
"That on or about the 5th day of March, 1931, said administrator executed and delivered to said bondholders' committee a probate deed conveying the interest of said estate in said premises. Thereupon said trustee executed its instrument in writing acknowledging that said trust deed is redeemed, paid off, satisfied and discharged of record, same being filed for record on the 27th day of March, 1931, and duly recorded on same date.
"At the same time said trustee executed and delivered to Frank P. Clarkson and Louise K. Clarkson its release of each of them from the obligations assumed by them under their guaranty agreement guaranteeing the payment of the Zwart bonds.
"That the grantees in said administrator's deed took possession of said premises to the exclusion of plaintiffs, ignoring the rights of plaintiffs therein."
From the same argument of appellants, we quote the "Nature of the Defense", as follows:
"The defendant, Donald J. Metcalf, as administrator, appellee and appellant herein, claims to have only conveyed to the bondholders' committee whatever interest his intestate owned in said real estate at the time of his decease, and, therefore, is not liable to plaintiffs on account thereof, and having secured the release of the trust deed or encumbrance against said premises and the release of the guarantors on their guaranty, that he has performed the covenants of the said Joseph S. Zwart and Bertha C. Zwart to the plaintiffs according to the terms of said contract above referred to, and that he, as administrator, conveyed only such interest in the premises as the said Zwart died seized of, and that as plaintiff John Clarkson never parted with his beneficial or equitable interest therein he is still such owner freed from the lien of such trust deed as fully as if the indebtedness secured thereby had been paid and discharged by the obligors in accordance with the terms of said bonds and of the trust deed securing the same, and is not resisting plaintiffs' demand that he be ordered to make such conveyance. *Page 330
"The defendant Bertha C. Zwart claims that by reason of said administrator having secured the release of said real estate from the encumbrances thereon by the execution of said trust deed, she is personally released from the obligations imposed on her by said contract between herself, said Joseph S. Zwart, deceased, and the plaintiffs, and making no resistance to plaintiffs' demand that she be ordered to make conveyance as prayed.
"The defendants Iowa-Des Moines National Bank Trust Company, Trustee, and William C. Harbach, Harry D. Rawson, H.H. Griffiths, and James McKeon, bondholders' committee, claim that they are the absolute and unqualified owners of said real estate by purchase thereof from Donald J. Metcalf, as administrator of the estate of Joseph S. Zwart, deceased, without notice or knowledge of the interest therein claimed by said plaintiffs.
"That the notice served upon Victor H. Pulis, Assistant Trust Officer of the Trustee Bank, was served too late to affect the rights of the parties in this case."
Appellants' grounds of complaint as against the decree are as follows:
"1. The court erred in dismissing appellants' petition as against the appellees the Iowa-Des Moines National Bank Trust Company, Trustee, and the Bondholders Protective Committee.
"2. The court erred in construing the contract between Joseph S. Zwart and Bertha C. Zwart, and John R. Clarkson and Elizabeth Clarkson, to be in the alternative, giving the Zwarts and their legal representatives the option to convey or to pay the penalty.
"3. The court erred in holding that appellants' exclusive remedy as provided by the terms of said contract is a suit at law to recover damages for failure to convey.
"4. The court erred in holding that appellants were not entitled under said contract to a decree of specific performance."
The foregoing constitutes a succinct statement of the points of debate in the case.
I. From the foregoing it appears that Clarkson was originally the owner of the undivided one-half of the property, which became pledge for the bond issue. His title did not appear of record, nor did he have any paper title. His title rested upon an oral agreement between him and the Zwarts. He was, however, a tenant in common and both tenants were in joint possession of the property. *Page 331
The trustee of the bond issue refused to accept from Zwart the title which he presented. For the purpose of obviating that objection, and of conferring upon Zwart the full and undivided title, the Clarksons conveyed to Zwart their full interest in the property by quitclaim deed, and with Zwart caused the same to be filed of record. It was clearly intended both by the Clarksons and the Zwarts that the trust deed to be executed for the bond issue should include the full title thus vested in Zwart. The bonds were issued on the faith of a full and undivided title to the security. The present attitude of Clarksons is that notwithstanding their quitclaim deed, they still in fact retained the ownership of the property thus conveyed and they predicate their claim upon the contract executed by the Zwarts whereby they agreed to pay the bond issue within a period of ten years and to restore to the Clarksons free and clear of all incumbrance, their undivided one-half of the bonded property. At this point their petition alleged as follows:
"Par. 5. That during the spring and summer of 1923 the said Joseph S. Zwart solicited the plaintiffs to consent to an encumbrance of all of the rights of both the plaintiffs and the said Joseph S. Zwart in and to said premises to secure an issue of bonds upon which to procure funds to make an investment which the said Joseph S. Zwart desired to make, and purely as an accommodation to him. That finally, and on or about the 18th day of October, 1923, solely for such purpose and as an accommodation to the said Joseph S. Zwart, whose wife, defendant Bertha C. Zwart, is a sister of plaintiff John R. Clarkson, and in reliance upon assurances and promises that he then made that no risk would be incurred by the plaintiff in extending to him such accommodation, and that indemnity security would be given plaintiffs to protect their interests against such encumbrance and to give them a preference over all other creditors for such protection, and to reconvey such interest to the plaintiffs within ten years from the date thereof, free from the encumbrancecontemplated and any and all other encumbrances not existing atthe date of the execution of the deed hereinafter referred to,
the plaintiffs executed, and about October 18, 1923, delivered to the said Joseph S. Zwart their quit-claim deed, quit-claiming to the said Joseph S. Zwart solely for said purpose, all their interest in said building and leased premises aforesaid."
The contract executed by the Zwarts contains the following: *Page 332
"That Second Parties will execute to First Parties a Quit Claim Deed, conveying all their right, title and interest in the property above referred to. In consideration therefore, First Parties agree with the Second Parties that they will continue, during the time this agreement is in force, to pay to Second Parties one-half (1/2) of the net profits derived from the said building and, on or before September 1st, 1933 (that being the date when said bond issue finally matures), will return saidQuit-claim Deed or transfer back to John R. Clarkson the interestin said property so quit-claimed.
"If, for any reason, First Parties shall fail to transfer back to Second Parties, by September 1st, 1933, the property interest above described, First Parties jointly and severally bind themselves to pay to Second Parties in lieu thereof, on September 1st, 1933, the sum of Forty Thousand ($40,000.00) Dollars, which is fixed and determined between them as full compensation and liquidated damages for such failure, and for the interest of Second Parties in said property."
The case presented by the plaintiffs simmers down to this: That notwithstanding their conveyance of the property to Zwart, for the purpose of enabling him to pledge it for a bond issue, they still owned it by virtue of their contract with Zwart. The Zwarts negotiated the bond issue of $60,000 and obtained the proceeds thereof. They executed a trust deed for the property to secure the same. In so doing they acted within the purpose and intent of the Clarksons as grantors in the quitclaim deed. There is no claim of any excess of authority or breach of contract on the part of the Zwarts up to this point. The breach of contract of the Zwarts came later when they failed to pay the bonds and thereby failed to discharge the incumbrance upon the property pledged. From this breach of the contract the bondholders were sufferes as well as the Clarksons. This breach of performance on the part of the Zwarts gave to the Clarksons no grievance as against the bondholders. Nor did it diminish one whit the right of the bondholders to resort to their security and to all of it. The property conveyed to Zwarts by the Clarksons was pledged for the payment of the bonds as effectively and completely as was any other part of the property. The bonds were drawn to mature in installments over a period of ten years. After seven years, the Zwarts defaulted in the payment of installments of principal, and were never able thereafter to resume *Page 333
payments. Installments to the amount of $22,000 of principal had been paid leaving $38,000 yet to be paid. Upon the death of Joseph Zwart in 1929 his administrator, Metcalf, negotiated a settlement with the trustees and bondholders whereby the trustees accepted the pledged property in full payment of the bonds. After the settlement was agreed upon, but before its full consummation, the Clarksons served a notice upon the agents of the bondholders that they owned a one-half interest in the property.
The said notice registered objections in part as follows:
"The undersigned further notifies each of you that he claims that all orders in probate in the matter of the estate of Joseph S. Zwart, deceased, now pending in the District Court of the State of Iowa for Polk County, prejudicial to his said rights are claimed by him to be void, and that if he shall become advised that it is necessary to protect his interest, will ask that the same be set aside."
The foregoing indicates the conception entertained by the Clarksons of their rights in the case. They contend that their notice was given before consideration had completely passed and that therefore all further transactions between the administrator and the bondholders were wholly void as to the Clarksons, though allegedly valid as to the Zwarts. The argument follows to the effect that the transactions being valid as between the Zwarts and the bondholders, are therefore effective to discharge the bonds and to release that one-half of the pledged property claimed by the Clarksons. The relief prayed is that they have conveyance from the Zwarts and the Zwart estate of one-half of the pledged property and that such conveyance be decreed effective against the trustee and bondholders and as discharging all incumbrances upon the property and as conferring upon the Clarksons the title to one-half of the property free and clear of all incumbrances. If they be entitled to any alternative or lesser relief than the foregoing, it is not suggested in pleading or argument.
The relief thus claimed amounts to nothing less than a repudiation of the quitclaim deed. That deed was valid and binding when it was delivered and is nothing less now. Unless the plaintiffs are entitled to repudiate it, they gain nothing by serving notice of their claims. The title passed to Zwart for the very purpose of enabling him to pledge the same in negotiation for the bond issue. The conveyance became as irrevocable as any other contract. There has *Page 334
been no breach or failure of any kind on the part of the bondholders or their trustee. The practical effect of the relief sought by the plaintiffs is directed solely against the bondholders. The relief prayed would work no detriment against any other party to the case. Manifestly there can be no relief available to the Clarksons, which subordinates the title of the bondholders to the claims of the plaintiffs. It is quite conceivable that a state of facts might have arisen which would equitably entitle the Clarksons to redeem from the trust deed by paying the bond issue. Nothing of that kind, however, is contended for, either in pleading or argument.
The first point argued by appellants in their brief is that the provision in the contract for liquidated damages of $40,000 does not operate as a bar to specific performance. The primary fault of this argument is that it assumes that the provision for liquidated damages is the only obstacle in the way of specific performance. We may safely concede, as a matter of law, that a provision for liquidated damages for failure of performance is not necessarily or usually a bar to specific performance if the right would otherwise exist. The plaintiffs had no contract for any performance with the bondholders or with their trustee. The contract upon which they sue was the contract of the Zwarts only. The implications of the record are that the Zwart's estate is insolvent. Specific performance by way of paying off the incumbrance is therefore impossible. The contract with the Zwarts called for liquidated damages to the amount of $40,000. This amount was allowed the plaintiffs in the court's decree. But the plaintiffs quite spurn it. We take this to mean that it is not collectible. If it were, then the judgment would be quite the equivalent of a decree of specific performance, requiring the Zwarts to pay off the bonds. The essence of the case is that under cover of a contract with the Zwarts, the plaintiffs are seeking performance from the bondholders by requiring them to cancel the bonds as against the plaintiffs.
In the absence of some ground of relief from the operation of the quitclaim deed, the plaintiffs had no higher right against the bondholders than the Zwarts had, or have. The plaintiffs conveyed their property to Zwart for the very purpose of enabling Zwart to do what he later did do. He did pledge it. His action was as effective to that end as was the pledging of his own property. His ownership extended to the whole property, and this result was attained by the deliberate act of the plaintiffs. Their present challenge *Page 335
to the title of the bondholders is nothing less than an attempted repudiation of their conveyance. There is not a line in the record that furnishes ground for such repudiation. The right of the plaintiffs whatever it be is not founded upon notice to an alleged third party either before the payment of consideration or thereafter. The bondholders parted with their consideration not at the time of the settlement, but at the time the loan was made. The decree of the trial court granted the plaintiffs the full equivalent of all the relief they asked as against the makers of the contract sued on. They have no grievance up to that point. If the plaintiffs had sought to protect their rights as between them and the Zwarts, by redeeming the bonds, and charging the cost thereof to the Zwarts and to their property, a different question would be presented. In such a situation there would be some room for extending equitable relief quite independently of a contract for it. But the plaintiffs are not entitled to repudiate their quitclaim deed, nor entitled to subordinate to their own interest the rights acquired by the bondholders under such quitclaim deed.
The decree of the district court is accordingly affirmed.
CLAUSSEN, C.J., and ALBERT, KINDIG, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430274/ | On July 13, 1928, about 5:30 o'clock in the afternoon, the plaintiff-appellee was traveling from the north to the south side of First Avenue East in Cedar Rapids, and was struck by an automobile at a point approximately 30 feet west 1. AUTOMOBILES: of where said avenue intersects Tenth Street in injuries that city. The automobile belonged to, and was from owned by, the defendant-appellant Clay Chaplin, operation, and the defendant-appellant Dora Northrup was or use of driving the vehicle with the owner's knowledge highway: and consent. A description of the streets and negligence: surrounding circumstances will aid in jury understanding the questions hereinafter question. discussed.
First Avenue East, upon which appellee was injured, extends in an easterly and westerly direction, while Tenth Street runs north and south, and intersects the other thoroughfare approximately at right angles. Both streets are paved. There are double street-car tracks on First Avenue East, and Tenth Street has a single street-car line. At the southwest corner of the street intersection before described is a filling station. North from the filling station, and across First Avenue East at the northwest corner of the intersection, there is a grocery store. Appellee's *Page 406
home was on the south side of First Avenue East, the second door west from the filling station.
Just before the accident, appellee went from his home, and passed the oil station along the west side of the intersection to the grocery store, where he apparently purchased a bottle of milk and some eggs. When returning to his home with those food products, appellee walked along the sidewalk west from the grocery store on the north side of First Avenue East to a point approximately 30 or 35 feet west from the Tenth Street intersection. Then the appellee started across First Avenue East in a southerly direction. He first passed between two automobiles parked on the north side of First Avenue East, and then continued walking across the avenue to a point about the center of the north street-car line, when the automobile struck him and knocked him to the pavement. After the accident, appellee's body was found near the center of First Avenue East. Through the impact aforesaid, the appellee received serious injuries, for which the jury allowed him substantial damages. Because of alleged errors occurring in the district court, a new trial is sought.
I. In the first place, appellants complain because the district court did not direct a verdict for them, on the theory that no actionable negligence on their part was shown.
It is disclosed by the record that there is conflicting evidence concerning what the driver of the car did. Riding with her at the time was another lady. According to the appellee's version of the facts, these ladies, at the time in question, were looking and waving at two men who were operating the oil station. Hence appellee contends that the accident occurred because the driver was looking toward the filling station, rather than keeping a proper outlook. Upon this subject, the appellee testified as follows:
"It looked to me [the appellee] the two girls [the appellant Dora Northrup and the lady riding with her] were looking toward the Shell filling station south [the oil station at the corner] with their hand out. I hurried as quickly as I could, to get out of the way. I was struck, and knew nothing after that. * * * Just as I [the appellee] went to go in the middle of the four tracks [the street railway tracks on First Avenue East], I looked up, and I saw this car in front of me. I saw the condition I was in, and I saw them [appellant Dora Northrup and her lady companion] *Page 407
looking the other way, south towards the oil station, and I made a quick move to get out of the way [of the automobile]."
Following the accident, the witness Walker went to the scene thereof, and heard a conversation between the appellant Dora Northrup, the driver of the car, and her lady companion. Concerning what was there said, Walker testified:
"The young lady [appellant Dora Northrup] and another young lady [the companion in the car] with her came across the street to where Mr. O'Hara [the appellee] was carried to [after the accident]. I did not know either of the ladies. One of the girls was a little bit hysterical. They were talking. One of them said to the other one, `I never saw him [appellee] until we hit him, did you?' and she [the other] said, `No' She [the driver] said she just couldn't help it."
Likewise, the witness Booze said, upon the witness stand:
"I heard one lady [the appellant Dora Northrup] say: `Why, I didn't see that man until I hit him,' — hit him or struck him, I don't know which she said now. She just made that remark."
With that testimony before them, and the other facts and circumstances concerning the condition on the avenue, it is manifest that the jury could, if they were so persuaded, find that the appellants were guilty of negligence. No question is raised concerning the admissibility of that evidence as against the appellant Clay Chaplin, who owned the car. Under the record, it was 24 feet and 6 inches from the north curb of First Avenue East to the north car track. After allowance is made for the width of the cars parked on the north side of First Avenue East, it appears, under the record, that there was an additional space of 19 or 19 1/2 feet on which automobiles could travel westward on First Avenue East, and still be to the right of the north street-car rail. An automobile driver going westward over this avenue at that time would have had a course at least 19 feet wide upon which to manipulate his machine, without going upon the territory between the street-car tracks where the appellee was injured. If it be assumed that the appellant Dora Northrup, while driving her automobile on this occasion, failed to keep a proper outlook, as contended by appellee, then the jury might well find that such *Page 408
conduct on her part constituted negligence which, under the circumstances, was the proximate cause of the injury.
As before suggested, there was a conflict in the evidence. Appellants contend that another automobile traveled northward on Tenth Street to First Avenue East, when it turned onto said avenue behind appellants' car, and continued westward. When this other vehicle, thus approaching appellant's car, sought to pass the same, and was opposite thereto, appellee was between the two vehicles. Whereupon, in order to avoid the second vehicle dangerously close to the south of him, appellants claim that appellee jumped backwards into the left fender of appellants' automobile. Continuing their argument, appellants maintain that no negligence appears on their part, because appellee had passed the line of travel to a safe place beyond, but jumped back unexpectedly and without notice, from the safe position into one of danger. Corroboration of appellant's contention may be found in the testimony of their witnesses.
On the other hand, appellee denies that he jumped backward, or that there was any other car passing appellants' automobile at the time. Furthermore, appellee claims that he jumped forward, to avoid being hit by appellants' car, but nevertheless the left fender thereof caught him. One witness for the appellee, who saw the accident, by way of corroboration said that he did not see a second vehicle on the street. Manifestly, the results of the conflicts and disputes in the testimony were matters for the proper consideration of the jury, and not the court.
"These issues, then, were necessarily and properly submitted to the fact-finding body." Olson v. Shafer, 207 Iowa 1001.
To the same effect, see Noyes v. Des Moines Club, 178 Iowa 815;Doyle v. Burns, 123 Iowa 488. During the discussion in Gradert v.Chicago N.W.R. Co., 109 Iowa 547, on page 550, we approved the following declaration:
"So it is for the jury to determine as to the weight of the evidence, though there be one witness testifying on one side to certain facts, and many witnesses on the other side testifying to a contrary state of facts. It is not the province, in such a case, of the court to pass upon the credibility of the several witnesses, and to say which one told the truth, or that the story of one is more likely to be correct than that of another." *Page 409
II. Complaint is, nevertheless, made because the district court 2. AUTOMOBILES: did not sustain appellants' motion to withdraw injuries from the jury the appellee's specifications of from negligence numbered 1, 2, 5, 6, and 7. Those operation, specifications, as stated in the record, are or use of that the appellants were negligent in the highway: following particulars: specifica- tion of "1. In failing to operate said car in a negligence: careful and prudent manner, and at a rate of evidentiary speed that would not endanger the property of support. another or the life or limb of any person.
"2. In failing to have said automobile under control and reduce the speed to a reasonable and proper rate when approaching a person walking in the traveled portion of said avenue. * * *
"5. In failing to keep a proper outlook for persons using and occupying said street.
"6. In failing to see plaintiff [appellee] and avoid striking him by turning said car to the right after she [the driver of the car] saw, or by the exercise of reasonable care could have seen plaintiff [appellee], and thereby avoid striking him.
"7. In failing to sound the horn or give any signal or warning of her approach before driving said car against, upon, and into plaintiff [appellee]."
The foregoing discussion under Proposition I goes a long way to dispose of appellants' contention at this point. Moreover, the record indicates that the driver did not operate the automobile in a careful and prudent manner, if the appellee and his witnesses are to be believed. Their version of the affair is that, as previously suggested, the operator of the car was not keeping an outlook, but looking at the oil station and waving at the men in charge thereof. A quoted excerpt from Walmer-Robertsv. Hennessey, 191 Iowa 86, on page 101, will demonstrate the thought. There it is said:
"The appellant argues the broad proposition that a driver of an automobile who sees a pedestrian on the street cannot be guilty of negligence for failure to bring the automoble to a full stop, upon approaching the pedestrian, who is apparently oblivious of such approach. Such cannot be the law. Our statute provides that every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent *Page 410
manner. This is no more than declaratory of the common law, and simply means that the driver of an automobile shall use such care as a man of ordinary prudence and care would exercise, under the same circumstances. Occasions may undoubtedly arise where the failure to come to a full stop would be negligence of a flagrant kind. To deliberately run down a pedestrian, apparently oblivious of the approach of an automobile, would be little less than manslaughter."
See, also, Rolfs v. Mullins, 179 Iowa 1223. So, too, the driver of the car herself indicates that she was continually increasing her speed from the east side of the intersection until she struck the appellee, and thereafter, according to the evidence, the automobile continued for a distance of 62 feet before being brought to a stop. Contrary to appellee's claim, Dora Northrup, the appellant who was driving the car, testified that she saw the former on the highway ahead of the automobile. Also, the driver declared that she observed the appellee during his walk across the street all the time the automobile was approaching. If, under the record, the jury believed that the appellee did not jump backwards to avoid the second car, but rather jumped forward, to escape appellants' vehicle, then they could conclude that, although the appellant Dora Northrup saw the pedestrian all the while, she did nothing to avoid hitting him.
It cannot be said, as a matter of law, that the driver had the automobile under control, or reduced the speed to a reasonable and proper rate when approaching appellee upon the highway. While discussing this question in Altfilisch v. Wessel, 208 Iowa 361, we said, on page 367:
"The further complaint against the instruction is that the court did not define the term `under control.' The requirement of the statute that drivers of motor vehicles shall have the same under control does not refer alone to the matter of speed, although doubtless this would ordinarily be the matter complained of. We have said that a car is under control, within the meaning of the law, if it is moving at such a rate and the driver has the mechanism and power under such control that it can be brought to a stop with a reasonable degree of celerity."
Not only was there evidence indicating that the driver did not have the automobile under control, but likewise, the record *Page 411
would justify the jury in finding that it was incumbent upon the operator to sound a horn, or otherwise warn appellee of her approach. That no such horn was sounded or warning given is conceded. Without again reciting the record, it is enough to call the reader's attention to the fact that the appellant Dora Northrup asserts that she saw appellee while he was crossing the highway. Upon this subject, we stated in Handlon v. Henshaw,206 Iowa 771, on page 773:
"It cannot be held, as a matter of law in every case, that an auto driver is absolved from giving a signal on approaching a pedestrian on a highway on the theory that the pedestrian saw the vehicle immediately prior to the collision. Walmer-Roberts v.Hennessey, 191 Iowa 86."
Under all the record, then, we cannot say that the court erred in submitting appellee's aforesaid specifications of negligence to the jury.
III. Regardless of the foregoing, appellants argue that there should have been a directed verdict in the district court because the appellee was guilty of contributory negligence. In that regard, their theory is that the appellee did not make such observations and keep such outlook as was essential, under the facts and circumstances.
This highway was much used, and vehicles frequently passed to and fro. For a settlement of this question, reference now must be made to appellee's testimony. Appellee says that, when leaving the sidewalk on the north side of First Avenue East, he followed a well-worn path on the parking to the curb and then passed between the two parked automobiles before described. Here, appellee testified, he made observations both westward and eastward, and saw appellants' automobile coming from the east over across Tenth Street at the alley in the other block. Such approaching car was approximately 200 feet east. Apparently believing that the on-coming vehicle was a safe distance away, the appellee started across the street. At this point in his testimony, the appellee stated:
"Q. As you walked out into, or attempted to walk across it [First Avenue East], state what, if anything, you did towards paying attention to where you were going. A. I looked up and down, to see I was all right. Q. All right, then you came out in *Page 412
the street, and something happened? A. Yes, sir. I was in the middle of the track. Q. When you say you were in the middle of the track, what do you mean? A. I was looking east and west, — when I looked up, there was a car right in front of me. * * * I got to the * * * middle of the north line [between the rails of the north street-railway line] * * * I had not crossed the north line. I was in the middle of it."
After arriving at that position in the middle of the north street-car line, the appellee was struck by appellants' automobile. When we give full force and effect to appellee's testimony, as we must, when considering the motion for a directed verdict, it is apparent that he made observations before starting across the avenue, and continued doing so when proceeding over the public way. According to the record, appellee undoubtedly was less vigilant because he had seen the automobile 200 feet to the east, and thought he would have time to cross the street before that vehicle overtook him. But appellants' car traveled more rapidly than appellee anticipated. Can it be said, then, as a matter of law, that appellee was guilty of contributory negligence? Generally, the question of contributory negligence is one for the jury to decide, rather than the court. Lamb v. WagnerMfg. Co., 155 Iowa 400; Toney v. Interstate Power Co., 180 Iowa 1362; Phelan v. Foutz, 200 Iowa 267.
While discussing this subject-matter in Murphy v. Iowa Elec.Co., 206 Iowa 567, we suggested, on page 572:
"If there is a conflict in the evidence as to what the person accused of contributory negligence did or did not do, the question is then one for the jury. Likewise, even though it is known what was done by that individual in this regard [concerning care], yet, if his conduct is such that there may fairly be different opinions with respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another, just as sincerely, and with equal reason, contends it was not, then there is a jury question."
Within the purview of this record, we cannot say, as a matter of law, that the district court erred in not directing a verdict in appellants' favor on the theory that appellee was guilty of contributory negligence.
IV. A reversal is demanded by the appellants because the *Page 413
district court refused to give Requested Instructions 6 and 7. As before stated, the trial court did not give these requested instructions in the exact language used by the appellants, but the substance of the requested instructions, so far as material, was embodied in the charge actually given to the jury. Consequently, appellants were in no way prejudiced, and there is no reason for reversal because the requested instructions were not given verbatim.
V. Careful consideration has been given to appellants' objections to the district court's Instructions 2 and 3, and it is found that the exceptions are not well taken. Negligence was properly defined. Also, contributory negligence was defined, and the application thereof explained. There is no objectionable inconsistency between the definitions of negligence and contributory negligence. Proper application of the principles involved in these definitions was made, so far as necessary, to the facts in the case, when all the instructions are considered together.
VI. Pursuing their attack upon the trial court's instructions, the appellants here complain because that tribunal told the jury, in effect, that appellee need only show that he "did not directly contribute to the cause of the collision and 3. NEGLIGENCE: consequent injuries by any negligence on his actions: part." Exception is taken to the use of the word negligence "directly." The thought is that negligence must directly be the proximate cause, before a plaintiff can contributing recover from a defendant, but that, conversely, to one's contributory negligence need not be a proximate injury. cause.
Undoubtedly, appellants are correct in their statement that contributory, negligence need not be the proximate cause.Towberman v. Des Moines C.R. Co., 202 Iowa 1299; Stilson v.Ellis, 208 Iowa 1157. However, the district court, in the instruction of which complaint is made, did not tell the jury that contributory negligence must be the proximate cause. All the instructions must be read together, because it is impossible to express the entire thought in a single paragraph. If the instructions actually given in the case at bar are thus read together, it is apparent that the district court, in effect, told the jury that the appellee could not recover in the event that his negligence in any way contributed to the injury. Such instructions, however, did, and properly can, contain the thought that the contributory *Page 414
negligence must be direct, — not, however, that it shall amount to the proximate cause of the injury. Excerpts from some of the cases will demonstrate the thought. We said, in Rietveld v.Wabash R. Co., 129 Iowa 249, on page 253:
"Of course, the plaintiff's negligence must be such as contributes proximately to his injury [the italics are ours]. But, if it does so in whole or in part, in any manner or to any degree, there can be no recovery on his behalf."
Again, in Bird v. Hart-Parr Co., 165 Iowa 542, on page 547, we declared:
"The true rule is that plaintiff's negligence, if there be any, will not defeat him unless it be such as contributes proximately
to the injury [the italics are ours]; but it need not be the sole cause of his injury."
To the same effect, we suggested, in Sturm v. Tri-City R. Co.,190 Iowa 387, on page 391:
"* * * and that law violation [the one claimed to be contributory negligence] does not constitute such negligence unless the breach of the law in some manner directly contributed to the injury suffered [the italics are ours]."
Finally, we concluded, in Stilson v. Ellis (208 Iowa 1157), supra, on page 1166:
"Vigorous argument is made by appellants on the proposition that the court erred in defining `contributory negligence' for the jury. Mistake, they say, arises from the statement of the court to the effect that contributory negligence is such as proximately causes the injury. Had the court confined that charge to `proximate' alone, as distinguished from a contributing cause, there would have been error. Towberman v. Des Moines C.R. Co.,202 Iowa 1299. Such condemned definition, however, was not given by the trial court in the present controversy. Rather than so doing, the court below defined contributory negligence to be such negligence as contributes `in any degree' directly or proximately to the injury of which complaint is made. Therefore, the trial court in effect said that appellee's contributory negligence, in order to defeat her recovery, need not be the proximate, but merely a contributing, cause thereof." *Page 415
See Carlson v. Naddy (Minn.), 232 N.W. 3.
Therefore, when the court's instructions are read as a whole, it is found that the jury were told that the appellee could not recover if his contributory negligence directly contributed to the injury in any degree. That is correct.
VII. Furthermore, complaint is made because the district court admitted evidence concerning the diagonal path leading from the sidewalk on the north side of First Avenue East to the north curb line thereof. This evidence was admissible on 4. APPEAL AND the question of appellee's contributory ERROR: negligence. Middleton v. City of Cedar Falls,
review: 173 Iowa 619 (local citation 624). No objection scope and is made by the appellants because the extent: introduction of that evidence cast upon them a harmless greater burden concerning a lookout, care, etc. error: Were the record different, it might be said that knowledge of the evidence concerning the path would cause the person in jury erroneously to demand greater vigilance of place of the automobile driver when passing the place. danger. Here, however, the appellant Dora Northrup, who was the driver of the car, declares that she saw the appellee all the time he was crossing the street. Having thus made complete observation, under their own claim, the appellants cannot now well say that prejudice arose because evidence concerning the path was introduced. Because of that record, there is no reversible error at this point.
VIII. Many other statements are made in appellants' brief and argument concerning why there should be a reversal. In order not to continue this opinion until it reaches a point beyond all reasonable length, we refrain from separately discussing each of said propositions. It is enough to say that the district court submitted only those grounds of negligence named in the petition, and correctly instructed the jury in reference thereto. So far as material, the substance of appellants' requested instructions was embodied in those actually given to the fact-finding body. Confusion or inconsistency nowhere appears in the court's charge to the jury. Under all the circumstances, it is apparent that the appellants had a fair trial.
The verdict of $2,800 is not excessive. By occupation, appellee engaged in the upholstering and carpenter business. As a result of the impact with appellants' car, the appellee received *Page 416
5. DAMAGES: severe injury to his right arm, shoulder, and excessive knee, the right forearm was fractured, the wrist damages: broken, and the muscles, tendons, and ligaments personal "were hurt, twisted, and wrenched." According to injury: the evidence, the blood and nerve supply was $2,800. impaired. An attending physician opined that the injury to the right arm and shoulder is permanent. Appellee's ability to use his right arm and shoulder, according to the evidence, was impaired to the extent of two thirds of their normal use and strength. More than this, a doctor treated appellee in the hospital for three weeks, following the injury, and after he left that institution, this physician attended appellee in the latter's home for three or four months. Even at the time of the trial, appellee experienced "steady pain" in his right arm, extending from the wrist to the shoulder. His sleep was interfered with, he was very nervous, and suffered from dizzy spells. To some extent, at least, appellee's right eye was affected by the injury. Prior to the accident, appellee earned from $100 to $150 per month. During the first six months thereafter, he earned nothing. Following said six-months period, appellee earned only $10 or $15 per week. Added to appellee's loss through incapacity is his expense, as follows: For nursing, — general, $100, special, $84; for medical services, $250; for hospital care, $144.75. Manifestly, the verdict is not excessive.
Wherefore, the judgment of the district court must be, and hereby is, affirmed. — Affirmed.
MORLING, C.J., and EVANS, STEVENS, FAVILLE, De GRAFF, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430275/ | This appeal presents several propositions relating to the distribution of the rents of real estate between the widow and heirs of an intestate where a homestead is involved. It is the fifth appeal in the contest between these parties. A brief statement of the *Page 738
facts out of which the controversy arises is necessary to a proper understanding of the problems.
In December, 1926, John A. Crouse was a farmer, sixty-four years of age, a widower, and the father of eight children. He lived on a five hundred-acre farm which he owned near Boone, Iowa. The appellant was his housekeeper. During that month the appellant became his wife. Early in the month of March following, he died as a result of falling or being thrown from an automobile which the appellant was driving. He will be referred to herein as the decedent, the appellant as the widow, and his surviving children as the heirs.
Very shortly following decedent's death, his heirs instituted an action in partition covering the five hundred acres of land. In this action the right of the widow to an interest in the land was challenged. Pending determination of questions affecting the interest of the parties in said land, a receiver was appointed for all of the land except the forty acres comprising the homestead which the widow occupied. Crouse v. Crouse, 210 Iowa 508, 229 N.W. 850. In an action at law, following a dismissal of the prayer for partition, the heirs made the claim that the felonious conduct of the widow was responsible for the death of the decedent and, therefore, she was not entitled to take anything from his estate. Section 12032, Code 1931. There appears to have been two trials on this issue in which the jury disagreed. On the third trial a jury found in favor of the heirs and against the widow. On appeal to this court the case was reversed. Crouse v. Crouse, 214 Iowa 725, 240 N.W. 213. When the case was returned to Boone county, it was transferred to equity and tried again. The district court found in favor of the widow and this finding was approved on appeal. Crouse v. Crouse,217 Iowa 814, 253 N.W. 122. In the meantime, on application of the widow, the widow's allowance was increased from $1,000 as originally made to $1,600, and this order was approved by this court. Crouse v. Ashford, 208 Iowa 333, 223 N.W. 510. It appears, also, that during this period the widow was indicted for manslaughter and was acquitted.
The decree of the court finding that the widow was entitled to participate in the estate of her deceased husband set apart to her 80 acres of land out of the five hundred-acre farm so selected as to include the forty-acre homestead on which the buildings were located. This decree was affirmed in this court on the 13th day of *Page 739
March, 1934. Crouse v. Crouse, 217 Iowa 814, 253 N.W. 122. In the meantime, the receiver had been collecting the rent from the four hundred sixty acres and collected rent for the years 1927 to 1933, inclusive. He used, out of the rentals from time to time, such amounts as were necessary to pay the taxes on the land, including the homestead, and for necessary maintenance and repair of the property. The widow occupied the homestead from the death of her husband in March, 1927, until the jury returned a verdict against her, barring her right to participate in her husband's estate. She was then ousted on the 21st day of January, 1931, because of the judgment entered on the verdict. The heirs collected the rent from the homestead thereafter until the widow took possession of the homestead as a part of the distributive share which had been set aside for her.
The present appeal is from a decree entered in the equity case where the receiver who collected the rents was appointed and relates to the proper distribution of the balance in his hands, and the extent to which the widow and heirs should be charged with the rents from the homestead. Both parties have appealed. The claims of the respective parties will be considered in the separate divisions of this opinion which follow.
[1] I. The widow claims that she is entitled to the rents from the homestead and, in addition, to one-third of the gross receipts collected by the receiver from the real estate which the decedent left in addition to the homestead, or from the four hundred sixty acres. The trial court rejected this contention and held that the rental value of the homestead should be included and charged to the widow during the period she occupied the homestead, in determining the one-third of the rentals which the widow was entitled to receive from the receiver for the period following the death of decedent up to the setting aside to the widow of her distributive share. The correctness of this holding we first consider.
[2] Rents which accrue on land after the owner's death are chattels real and belong to those who are the owners of the land when such rents accrue and in the same proportion. In re Estate of Dalton, 183 Iowa 1013, 1015, 168 N.W. 332. Our first inquiry, therefore, is: Who were the owners of this land between the death of decedent and the time when the widow's distributive share was set apart to her? *Page 740
[3] We have definitely decided that immediately upon the death intestate of the owner of real estate, his surviving spouse and children take as tenants in common and the surviving spouse becomes vested with an undivided one-third interest and the surviving children become vested with the remaining undivided two-thirds interest, and that the widow's undivided one-third interest may be divested by her subsequent election to take under a will, or to take a homestead for life in lieu of her distributive share. Van Veen v. Van Veen, 213 Iowa 323, 236 N.W. 1, 238 N.W. 718. In the case at bar, there was no will and there was no election to take a life estate in the homestead, so that the widow must be regarded as the owner of an undivided one-third of the lands from the death of her husband up until her share was set off to her in specific property. Thus far, there is no dispute. Controversy arises over the rents of the homestead and the rental value of the homestead. The widow contends that she has a right to the occupancy of the homestead independent of and in addition to her undivided one-third interest in all the lands, that she should not be charged with rent while she occupied the homestead, and the heirs, who collected the rent from the homestead after she was ousted and until her distributive share was set apart, should be required to account to her for such collection. The heirs, on the other hand, contend that while she may have the right to use and occupy the homestead, the value of that use should be taken into consideration in determining the amount she is entitled to receive as rentals from the other land. We are thus confronted with the question as to whether the widow's right of occupancy of the homestead is to be carved out of her distributive share where such share is large enough to cover it, or whether it is a right independent of and in addition to her right to a distributive share.
The homestead rights of a widow in the lands left by a deceased husband are created by statute. They arise under the provisions of the following sections of the Code of 1931:
"10145. Occupancy by surviving spouse. Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law, but the setting off of the distributive share of the husband or wife in the real estate of the deceased shall be such a disposal of the homestead as is herein contemplated." *Page 741
"10146. Life possession in lieu of dower. The survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased."
These sections, in substantially their present form, have been in the statutes of this state almost from the beginning. They appeared as one section of the Code of 1897. That they are closely related in their subject-matter is obvious. Yet, it is equally obvious that they recognize two different homestead rights in the wife.
The last section, above quoted, gives to the surviving spouse the right to occupy the homestead for life in lieu of her distributive share. That homestead right is an alternative right. It may be taken as a substitute for a distributive share. We are not concerned with that right here, nor with the many cases which have arisen under it. We mention it only to point out the distinction and thus avoid the confusion which would result from an attempt to apply the many cases which have arisen under it to the present situation. For example, it has been said that a widow may not have both a homestead and a distributive share in the lands of her deceased husband. Butterfield v. Wicks, 44 Iowa 310. This statement, however, has reference to a homestead right to the life use of the homestead which is in lieu of dower. Meyer v. Meyer, 23 Iowa 359, 92 Am. Dec. 432.
Section 10145 recognizes a different right, not a right to occupy the homestead for life, but a right to occupy it temporarily and until it is otherwise disposed of and a setting aside of the distributive share is a disposal of it. Such a right could not be in lieu of a distributive share, nor carved out of a distributive share, because the statute recognizes its existence along with a right to a distributive share and provides for its termination when the distributive share has been set aside in specific property. Both rights are recognized and mentioned in the same section. It must, therefore, be in addition to the distributive share.
[4] Moreover, such right is not acquired by inheritance. It is not a right which the widow obtained on the death of her husband. It is a right which she had before his death. Mahaffy v. Mahaffy,63 Iowa 55, 18 N.W. 685. In order for it to exist, the property must have been the homestead of the family and occupied as such by the husband and wife before the husband's death. Having such a status, the wife could not have been excluded from it by the husband while both were living. Although the property belonged to *Page 742
the husband, the wife had acquired an interest in it while both were living. That interest was the right to occupy it. When the husband died, the widow acquired no new interest in it. The effect of the statute was to continue the interest she already had. That interest is not a property right. It is not alienable. Butterfield v. Wicks, 44 Iowa 310. It is a mere personal privilege which terminates when her distributive share has been set off to her. The widow is not required to pay rent for the occupancy (In re Estate of Baker, 164 Iowa 305, 145 N.W. 898; Frazier v. Frazier, 201 Iowa 1311, 207 N.W. 772), nor to pay the taxes on the property while occupying it. Branson v. Yancy, 16 N.C. (1 Devereux's Eq.) 77. Her right to so occupy the homestead does not come from the estate of her deceased husband at all. She had that right before his death. The law continued it for a time after his death. Voris v. West, 180 Iowa 138, 162 N.W. 836.
It follows that when John A. Crouse died intestate, the title to the five hundred acres of land passed to his widow and heirs, burdened with this right of the widow to occupy the homestead temporarily. That much had been carved out of the estate which passed on his death and became vested in the widow and heirs as tenants in common.
[5] This right of the widow to occupy the homestead until some disposition is made thereof is obviously intended as a provision for the protection of the family during the time the estate is being administered and the distributive share set apart. It has been compared to the widow's allowance. Frazier v. Frazier,201 Iowa 1311, 207 N.W. 772. It has been called a temporary right (Wadle v. Boston Market Co., 195 Iowa 46, 191 N.W. 528), and is said to expire after a reasonable time. Egbert v. Egbert, 85 Iowa 525, 52 N.W. 478. Normally, one would hardly expect occupancy to continue under it over a period of years. In the instant case, a period of seven years is involved. That seems a long time to enjoy a right which is described as temporary. Yet during the whole period proceedings were in progress to determine and have set aside to the widow her distributive share. The long delay was not due to the unwillingness of the widow to have her distributive share set aside to her. Her right to have such share set aside to her was being resisted by the heirs. So that whatever delay there may have been is not chargeable to her. In any event, the statute says the right shall continue until the homestead is diposed of, and there *Page 743
was nothing here in the nature of such disposal until the distributive share of the widow was set aside to her. The right of the widow to occupy the homestead continued, therefore, until the distributive share was set aside for her.
[6] It is true that during the last three years of the period the widow did not occupy the homestead. But she did not voluntarily relinquish such occupancy. If she had, her right would have terminated. Butterfield v. Wicks, 44 Iowa 310. She was ousted under a judgment which was later set aside. Under such circumstances, it can hardly be said that her right of occupancy was lost. Her right continued and she is entitled to the rents from the property during the time she was excluded.
The trial court, in support of its holding, cited and relied upon the case of Van Veen v. Van Veen, 213 Iowa 323, 236 N.W. 1, 238 N.W. 718. That case does hold, as previously pointed out in this opinion, that, in a situation like this, where a man dies intestate leaving a widow and children, an estate in the lands immediately vests in the widow and children as tenants in common. The only question there considered, however, was as to where the title was and how it was held before the widow made her election, or in the absence of an election, where she had a right to elect to take the use of the homestead in lieu of a distributive share, or a right to elect to take under a will. It cleared up what had previously been a somewhat confused situation, because of the absence of harmony and consistency in our previous holdings on the question. The case was not concerned at all with the widow's temporary right of occupancy of the homestead. If the decision is to be interpreted as destroying the right of a widow to a temporary occupancy of the homestead, then there has been a repeal by judicial decision of Code section 10145. Such an interpretation is not justified. The widow and children take as tenants in common the estate which passes upon the death of decedent. But we have already seen that the right of occupancy of the homestead did not pass immediately upon the death of decedent. It remained in the widow. It is a right which the wife had in the property while her husband lived. His death did not immediately divest her of it. She retained that right when she became a widow. Since the estate which passed upon the death of the decedent in this case to the widow and heirs had carved out of it, before it passed, the right to a temporary occupancy of the homestead by the widow, there is nothing in the holding in the *Page 744
case of Van Veen v. Van Veen, supra, which affects that right. The widow and heirs in this case did take as tenants in common the estate which passed on the death of decedent. The estate which passed, however, was this tract of land burdened with the widow's right to this temporary occupancy of the homestead.
Our conclusion on this branch of the case is that the widow should not be charged with rent during the time she occupied the homestead; and that the rent which the heirs collected from the homestead during the time she was excluded from it be turned over to her, and the taxes on the homestead should not be charged against the income from said homestead.
[7] II. The widow makes the further claim here that she is entitled to one-third of the gross rents collected by the receiver and that there was error in deducting from the total rentals collected by the receiver expenditures made by him for the payment of taxes, upkeep on the land, and the costs of the receivership, and in computing her one-third in the balance remaining.
These parties were tenants in common of the lands. The nature of the interest which each held was the same. What was done by the receiver for the protection of the property was for the benefit of all of them. There appears to be no sound or logical reason why the widow's share should not be burdened with such expenses the same as the share of the other tenants in common. Tenants in common are individually liable for taxes on their proportionate share. Oliver v. Montgomery, 39 Iowa 601. They are liable for costs of partition. Swift v. Flynn, 145 Iowa 630, 124 N.W. 626. The deductions authorized by the trial court to be made before the rents were divided were proper.
[8] III. The widow further contends that she has been subjected to great expense in defending her right to a temporary occupancy of the homestead and to a distributive share in the estate of the decedent, and that such expense should properly be charged against the estate.
It seems to be conceded that the question is properly here, although the manner in which the question was injected is not clear from the record. The widow cites, in support of her claim, a number of cases holding the cost of litigation of this nature may properly be regarded as family necessities. We do not see that it would avail the widow anything if they be so regarded. The estate of a deceased person is not liable for the family necessities of the *Page 745
widow. Our statute makes rather generous provision for her maintenance by giving to her exempt property, a right to occupy the homestead temporarily, and a widow's allowance. These provisions are all designed to furnish to her means for her maintenance and support during the time the estate is being administered. The estate, however, is not liable for necessities which may have been furnished the widow during the time the estate is open and being administered. We are unable to see any proper basis for permitting such charges to be made against the estate or the heirs of the deceased in this case.
[9] IV. The heirs contend that the net rentals in the hands of the receiver should have been turned over to the administrator for the purpose of paying debts in the estate. It appears that there are unpaid claims in the estate. However, the widow's distributive share in the real estate left by the decedent is not liable for the payment of the debts of the estate. It follows that the rents which accrued on account of that distributive share after the death of decedent are likewise exempt from the payment of such debts and the costs of administration. Swift v. Flynn, 145 Iowa 630, 631, 124 N.W. 626.
There was no error, therefore, in the refusal of the trial court to apply the widow's share of the rentals to the payment of the debts of the estate, or the costs of administering the estate.
Because of what is held in the first division of this opinion, the decree below must be modified to permit the widow to have all the fruits of the possession of the homestead up until the time her distributive share was set apart to her and, in addition, one-third of the net rentals collected by the receiver from the other real estate and remaining in his hands after the payment of taxes on the land, including taxes on the homestead, and the payment of the expenses of maintenance and repair of the property during the time it was under the control of the receiver, and the expenses of the receivership.
It is, therefore, ordered that this cause be remanded for the entry of a decree not inconsistent with this opinion. — Modified and affirmed.
ANDERSON, C.J., and ALBERT, KINTZINGER, DONEGAN, and HAMILTON, JJ., concur. *Page 746 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430251/ | The testatrix, Nellie Hollis, age about eighty-five, died on November 2, 1942. Her husband predeceased her by about nine months. There survived two daughters, Annie Varnell and Bessie Lee, two sons (Dwight and Marion Hollis) of a deceased son, George, and two sons (Leroy and Floyd Boynton) of a deceased daughter, Lottie. George died in 1910; Lottie, in 1907. Annie lived in Texas; the Boynton boys, in California; Bessie Lee, Dwight and Marion Hollis, in or near Webster City. Mrs. Hollis left a separate estate of $10,000 — $6,000 in postal-savings certificates and bonds and $4,000 in bank deposits. Her will, dated June 15, 1942, gave a dollar each to *Page 763
the contestants, her daughter Annie and grandsons Marion and Dwight Hollis; $100 to Mrs. Ethel McCollough; half the residue to her daughter Bessie, and the remaining half to her grandsons Leroy and Floyd Boynton. These last three are the proponents. Bessie was nominated executrix without bond.
The husband, Frank Hollis, left a will made in February 1938, which is not directly involved here. He left his wife his household goods, livestock, grain, and farm machinery (they lived on a farm until November 1940, when they moved to Webster City), and the use and income for life from the balance of his property. The remainder interest in his farm of about 190 acres he left in three equal parts to Annie, Bessie, and the Boynton boys, with the explanation that he had deeded forty acres to his son George and therefore George's sons, Dwight and Marion, did not share in the farm. The residue of his property was left in four equal parts to Annie, Bessie, the Boynton boys, and Dwight and Marion Hollis. The home and an undisclosed amount of money and securities passed under this residuary clause. The testatrix elected to take under her husband's will.
[1] I. Since appellants' sole contention is that the case should have been submitted to the jury, we are required to review the evidence.
The will was prepared at testatrix' home by her attorney, Mr. Burnstedt. He, his partner, Mr. Hemingway, and her banker, Mr. Alexander, witnessed its due execution. None of the proponents was present and apparently knew nothing of its execution nor of its terms until after testatrix died.
Mr. Alexander identified a number of checks signed by the testatrix during 1942 and a number of small checks for expenditures drawn on testatrix' account and signed by Bessie Lee. He said Mrs. Hollis personally renewed a postal-savings certificate for $2,500 on September 1, 1942. She came to the bank and transacted her business about every Saturday. On August 1, 1942, at her suggestion the banker wrote and she signed a check transferring $1,200 from her checking account to her savings account.
Dwight Hollis lived just around the corner from his grandmother. He testified to friendly relations with his grandparents and that after his grandfather's death there was no sign *Page 764
from his Aunt Bessie that he and his brother were too welcome in the grandmother's home. (Bessie had a home of her own but spent considerable time with her mother.) Marion Hollis lived on a near-by farm. He, his wife, and mother also testified to cordial relations between Dwight and Marion and their grandparents. The wife testified that she and Marion called to see the grandmother the evening before she died. Bessie said they were not wanted and could not come in but they went in anyway. This witness also testified that Bessie told Marion he was not going to get any more of the Hollis estate. This was in the grandfather's lifetime and apparently after his will had been made.
Mrs. Ted Frakes, wife of the tenant on the Hollis farm in 1941 and 1942, testified that Mrs. Hollis said "if things go on as they had been, they'd be in the poorhouse in two years." This amused the witness. Mr. and Mrs. Hollis always spoke well of George's two boys. Other witnesses so testified. Marion helped his grandparents and took them a good deal from the farm. Mrs. Hollis told her husband that George worked for the forty acres that were deeded him. She was a determined old lady and very unkind.
Henry Noffke, a neighbor who farmed the Hollis land six years, said Mr. and Mrs. Hollis used to quarrel over money matters. Mrs. Hollis said if they moved to town they would starve to death or go to the poorhouse. After they moved she wanted Frank to get an acreage, raise chickens and milk a cow so they would not starve. Other witnesses also testified to this. At that time they were both unable to work. (They both died of cancer.) Mrs. Hollis was high-tempered. Mrs. Noffke also testified to many of these matters. Mr. and Mrs. Hollis seemed to enjoy quarreling. Mrs. Hollis was clever and quick-witted. Marion Hollis took the grandparents food from the farm.
Olive Bateman, who lived next door, identified a writing witnessed by her and signed by Mrs. Hollis two days before she died, four and one-half months after the will was made, in which she gave Bessie her household goods and personal effects in recognition of the faithful services rendered by her. Miss Bateman further testified that Mr. and Mrs. Hollis quarreled much of the time they were together. Other witnesses so testified. After Mr. Hollis died, in February 1942, Mrs. Hollis seemed *Page 765
pretty peaceful and calm. She was clever and a good joker. There was nothing abnormal about her for one of her age. Shortly before the will was made the daughter Annie visited her mother but objected to the bed and stayed only one night. Testatrix was very much worked up and said she was afraid of Annie — thought Annie might come back and harm her. She had pneumonia twice, once in the fall of 1941 and again in February 1942. After her husband died she lived alone in her house most of the time. Occasionally she walked to Bessie's home. Practically every Saturday she walked downtown. After Mr. Hollis died she never saw Dwight or Marion call on their grandmother. Until Frank's will was read, Mrs. Hollis thought he and Bessie were plotting to get her property.
Margaret Frakes was a practical nurse who helped care for Mr. and Mrs. Hollis when they were sick. She saw Mrs. Hollis about twice a week from the death of her husband in February to October 1942, when she became critically ill. She testified Mrs. Hollis quarreled continually with her husband and Bessie; she would yell and scream and call Mr. Hollis profane and vile names; she would say her husband and Bessie were plotting against her, she would have nothing to live on, and Bessie and her father were trying to poison her; she was jealous of other women and accused her husband and a farm wife of doing things they ought not to do; she wanted him to get an acreage so she could raise chickens and have something to live on. He was then not able to work. Mrs. Hollis once threatened to kill her husband. Mrs. Hollis wanted to give the witness her electric refrigerator but Bessie said she could not. During Mr. Hollis' last sickness his wife would hide his medicine and pour it in the stool, said they could not afford the medicine, that he would throw it up and was going to die anyway. Testatrix would not let them use good comforters to cover her husband. Bessie told her mother Marion and Dwight did not come to see her, that they sent cheap flowers to their grandfather's funeral, and she had no use for them. Before Mr. Hollis died he asked to have a certain hymn sung at his funeral. His wife said the song would not be sung. The hymn was, however, sung at the funeral. Before he died, the father asked the witness to call his attorney, *Page 766
Mr. Burnstedt, when the end came. Testatrix first refused to have Burnstedt on the place. Later, she got so she liked him.
On the day before the will was made, Mrs. Hollis sent for the witness. She was walking the floor — crying and screaming — and said Bessie had told her Annie, Marion, and Dwight were going to get her money, put her in the "crazy house" and appoint a guardian over her. (Marion and Dwight denied having any such intention; Annie did not attend the trial.) The witness told her no one "would put her in the crazy house or harm her. She [testatrix] said they were." After Annie's visit, Bessie told her mother Annie was there "for no good, she better make a will and get her business fixed up because the boys would swear she was crazy and they were going to appoint a guardian over her and put her in an asylum." Many times she heard Bessie tell her mother she was crazy. In October, Bessie ordered the witness not to let Marion and Dwight in the house but she said she would not do that.
Asked whether Mrs. Hollis' mental condition was sound or unsound, Margaret Frakes answered, "I would say * * * at many times her mind was impaired." The day before the will was made she was in one of those spells when she would call her mind impaired.
On cross-examination Margaret said Mrs. Hollis was better mentally during the summer of 1942; after her mother died Bessie expressed surprise at the contents of the will and did not know what it provided; never heard Bessie ask her mother to make a will in her favor but she did tell her Dwight and Marion did not deserve anything; after Annie's visit and before the will was made, Bessie wanted her mother to go to Texas to live with Annie but she would not go; Bessie took good care of her mother; when Mr. Hollis' bank box was opened, after he died, testatrix identified her bonds, told their amount and when the interest was due; she was strong-minded in money matters. The witness did not know whether testatrix was sane or insane on the day the will was made; her mind was affected at times so that she did not know what she was doing; she knew what property she had; she understood she had the life use of the farm; she knew about her two daughters and her grandchildren, was under no delusions as to them. Asked whether testatrix did *Page 767
not know where she wanted her property to go, the witness said she did not know. She testified testatrix' angry or hysterical spells would "last sometimes ten minutes and then quiet down a little — maybe she would then think of something else, sometimes it would be a half hour."
Ethel McCollough lived in the Hollis home as a girl. After they moved to town she spent one or two days a week in the home. She testified to many of the matters that Margaret Frakes did, although in less detail. Asked for an opinion as to testatrix' mentality, she said: "At times I really think she was mentally impaired. Q. What makes you think that? A. She would go into those spells of quarreling with Grandpa and her eyes would get so glassy and her cheeks would get so pink, and she would be just terrible mad."
On cross-examination Mrs. McCollough said Mrs. Hollis bought her own groceries; there were times she knew what she was doing; testatrix said Bessie had told her to fix her property up and get her business in order; witness advised her to do as she liked and not to please any of them; testatrix spoke frequently about her daughters and grandchildren; frequently wrote the Boynton boys until shortly before her death; she knew about her family relationship. Asked whether testatrix could make up her mind where she wanted her property to go, Mrs. McCollough said: "I don't know. If I wanted someone to divide anything, I wouldn't have wanted her to do it." She also testified: "My theory of her being mentally impaired were the violent quarrels she and Grandpa would get in over Bess and Grandpa going to poison her and by her thinking they were trying to get her out of the way." She also said when Mrs. Hollis made up her mind, no one, including Bessie, could change it; she never heard Bessie try to get anything out of her mother.
Mrs. McCollough also testified that Mrs. Hollis said Bessie had told her Annie and the boys were going to put a guardian over her and put her in the insane asylum. The witness assured her they would not think of such a thing. This witness said she was disappointed that her legacy was only $100; Mrs. Hollis had promised her $1,000 and also the electric refrigerator.
Mrs. Hollis wrote three affectionate letters to Annie, dated October 17, 1940, and April 14th and May 3, 1942. A long letter *Page 768
from Bessie to Annie dated February 3, 1942, after the father's death, said in part:
"Grandma has sure been a D . . . . if ever their was one — no one could handle her but me and I am telling you she is the (worlds worst) at times her mind was clear gone again she was as smart as could possible be."
This letter, being a declaration or admission by one of several legatees, would not be admissible had proper objection been made, because it would operate to the prejudice of other legatees. Wackman v. Wiegold, 202 Iowa 1391, 1394, 212 N.W. 122, and cases cited; In re Estate of Green, 227 Iowa 702, 706, 288 N.W. 881; 68 C.J. 1009, section 783.
There was also testimony that testatrix denied having signed the deed to the forty acres to George in 1909. Different witnesses identified her signature to the deed. Testatrix wrote Annie that Mr. Burnstedt had all the power over her husband's estate. In fact, he had no authority except as attorney for the estate.
While there was other testimony, we have summarized much of it.
[2] II. The right to dispose of property by will is one which the law is slow to deny. No mere weakening of the mental powers — no mere impairment of the faculties — will invalidate a will so long as the maker has mind enough to know in a general way the natural objects of his bounty, the nature and extent of his estate, and the disposition he wishes to make of it. It is not necessary that he be competent to make contracts or transact business generally. Perkins v. Perkins, 116 Iowa 253, 259, 90 N.W. 55, 57; In re Estate of Heller, 233 Iowa 1356, 1365,11 N.W.2d 586, 591, and cases cited. Applying this test, we are agreed the evidence, viewed in the light most favorable to appellants, is insufficient to warrant a finding of testamentary incapacity at the time the will was made.
There was no expert testimony. No one claims there was any permanent unsoundness or any progressive mental disease such as senile dementia. It fully appears that testatrix was competent to and did look after her business affairs. The most that can be claimed is that at times her mind was impaired. We *Page 769
have said time and again that testamentary incapacity does not result from mere impairment of the faculties. Even Margaret Frakes and Mrs. McCollough admitted Mrs. Hollis fully knew who were the natural objects of her bounty and what property she had. Neither witness would say she did not know what disposition she wanted to make of her property. A jury verdict of testamentary incapacity would necessarily be based, at least in part, on conjecture. In re Estate of Sinift, 233 Iowa 800, 810,10 N.W.2d 550, 555, and cases cited.
[3] III. Nor do we think a finding would be warranted that the will was the result of the undue influence of Bessie Lee. Undue influence, although of course it may be proven by circumstantial evidence, must be such as to substitute the will of the person exercising it for that of the testator, thereby making the writing express the purpose and intent of such person, not of the testator. It must be equivalent to moral coercion. It must operate at the very time the will is made and dominate and control its making. It is not established by proof of opportunity and disposition to exercise it. Importunity, request, and persuasion that do not control the will are not enough. In re Will of Richardson, 199 Iowa 1320, 1327, 202 N.W. 114; In re Estate of Mott, 200 Iowa 948, 949, 205 N.W. 770; In re Estate of Brooks, 229 Iowa 485, 493, 294 N.W. 735, and cases cited. In support of our conclusion, see Campbell v. Hale, 233 Iowa 264,6 N.W.2d 128.
[4] IV. Finally, it is contended the court should have submitted the issue of fraud in the procurement of the will. In appellants' excellent brief no Iowa case is cited that sustains this contention. Principal basis for the argument is the testimony of Margaret Frakes that after Annie's visit she heard Mrs. Lee tell her mother that Annie was there for no good, she better make a will and get her business fixed up because the boys would swear she was crazy and they were going to appoint a guardian over her and put her in an asylum. There is also testimony by Margaret Frakes and Mrs. McCollough that testatrix said Mrs. Lee had made about the same statement to her. This last testimony is not substantive proof of what Bessie told her mother, but is to be considered as showing Mrs. Hollis' state of mind and her susceptibility to influence. In re Estate of Rogers, *Page 770
229 Iowa 781, 788, 295 N.W. 103, 106, and cases cited; In re Estate of Wientjes, 206 Iowa 1314, 1316, 1317, 221 N.W. 935; 28 R.C.L. 153, section 107; 68 C.J. 1004, section 774.
Like many other courts, we have been slow to recognize fraud, as distinguished from undue influence, as a ground for contesting a will. James v. Fairall, 168 Iowa 427, 441, 148 N.W. 1029; Worth v. Pierson, 208 Iowa 353, 360, 223 N.W. 752. Some well considered cases, however, recognize the distinction between fraud and undue influence. In general, fraud deceives the testator's mind; undue influence overpowers it — usually by a course of conduct. In most of the cases, fraud is but a part of a systematic attempt to deceive and overpower the testator and is treated as undue influence. See, on this subject, 1 Page on Wills, Lifetime Ed., chapter 9; In re Estate of Newhall, 190 Cal. 709, 214 P. 231, 28 A.L.R. 778, and annotation 787; Gockel v. Gockel, Mo., 66 S.W.2d 867, 92 A.L.R. 784, and annotation 790.
Conceding, without deciding (as we did in Worth v. Pierson, supra), that a will may be set aside for fraud in the absence of undue influence, we think contestants failed to make a case for the jury on this issue. Fraud consists of willfully false statements of fact by a beneficiary to a testator, which are made in bad faith or with intent to deceive testator, which do deceive him and induce him to make a will he would not otherwise have made. 1 Page on Wills, Lifetime Ed., section 179.
The only evidence bearing on the falsity of what it is claimed Bessie told her mother is that Dwight and Marion denied any thought of instituting guardianship proceedings against testatrix. There is no proof that Annie had not threatened to do all it is claimed Bessie charged against her. The falsity of the statement is therefore not proven.
Further, the Boynton boys, who received as much under the will as Bessie, are not charged with any misconduct. For all the evidence shows, their legacy expresses the true will of the testatrix. There is considerable authority that fraud will cause an entire will to be set aside only if it affects the entire instrument and the setting aside will not prejudice innocent beneficiaries. While one should not be permitted to profit from his own wrong, others who are innocent should not suffer therefrom. *Page 771
"A false and fraudulent statement by one of two beneficiaries under a will makes the will void as to the beneficiary who is guilty of the fraud, but not as to the beneficiary who is innocent of it." 1 Page on Wills, Lifetime Ed., section 181.
See, also, In re Koller's Estate, 116 Neb. 764, 219 N.W. 4, and cases cited. No claim to any such partial relief has been made either here or below.
Further, a finding would not be justified that the alleged statement induced this will and that it would not otherwise have been made. In considering both the claimed fraud and undue influence, it should be remembered that the will was prepared by Mr. Burnstedt. Mrs. Lee apparently had nothing to do with its preparation and knew nothing of it until after her mother died. So far as shown, testatrix never expressed dissatisfaction with it. Before the will was made, both Margaret Frakes and Mrs. McCollough assured Mrs. Hollis no one intended to put her in an asylum or have a guardian appointed for her. Mrs. McCollough testified, in effect, that she, more than anyone else, was able to influence testatrix. Mrs. Lee did not ask her mother to make a will in her favor.
It is apparent something happened, for which Bessie was not responsible, at the time of Annie's visit to her mother, to cause some estrangement between the two. Annie came from Texas for the visit, stayed one night with her mother, complained of the bed, left before breakfast, never to return. The evidence shows no communication thereafter between the mother and Annie. The mother was worked up and expressed fear that Annie would return and harm her. Between Annie's visit and the making of the will Bessie suggested that her mother go to stay with Annie, who kept a convalescent home. The mother would not listen to the suggestion.
As for Dwight and Marion, they seldom visited their grandmother after their grandfather died and did not help care for her. This burden fell largely upon Bessie, who, with a family of her own, left her home in Minnesota to help take care of her parents. No one says she did not do a good job. The Boynton boys' mother died when they were small and one or both of them lived with their grandparents for extended periods. The will, therefore, is not so unnatural as might appear. *Page 772
Appellants' motions to strike appellees' second amended abstract and part of appellees' first amended abstract are overruled. However, we have not considered the testimony of J.E. Burnstedt which appellees offered after the case was decided. In view of appellants' denials of appellees' amended abstracts, we have treated the transcript of the testimony as the true record. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430254/ | In 1947, the grand jury of Polk County, Iowa, returned an indictment which accused William H. Cotton, Charles E. Parmenter, Roy J. Hild, Ben B. Dewey and H.H. Thompson of conspiracy as defined by section 719.1, Code of 1946, and charged that the said named parties unlawfully conspired with each other and with other persons unknown to the grand jury with fraudulent and malicious intent and purpose to commit a felony by obtaining money from Polk County by means of false pretenses and with intent to defraud. H.H. Thompson, being granted a separate trial, was found guilty by a jury and he appeals.
All of appellant's codefendants were members of the Board of Supervisors of Polk County and appellant was the director of Social Welfare and Overseer of the Poor for said county. The conspiracy charge is based upon numerous claims filed by one Elmer G. Croft for alleged service and parts furnished by Croft to Polk County for cars operated by appellant's department, and which claims were approved for payment by the county by this appellant. The manner in which these claims were approved will be discussed later herein.
In 1946, an indictment was returned by the grand jury of Polk County which accused Elmer G. Croft, H.H. Thompson (appellant herein) and William H. Cotton of obtaining money by false pretenses, as defined by section 713.1, Code of 1946, and charged that said parties obtained from Polk County the sum of $1285.20 by means of false pretenses. In a separate trial H.H. Thompson, though indicted and tried as a principal, as provided for by section 688.1, was found not guilty by a jury, the case being submitted upon the theory that Thompson aided and abetted Croft in the commission thereof. The claim upon which this indictment was based had been approved by Thompson in the same manner as were the claims used in the instant case.
Upon the trial of the first indictment, many of the claims used in the instant case were offered and received in evidence and the jury was instructed that if certain facts were found to be established in connection therewith, they might be considered as bearing upon the defendant's knowledge and intent in making the alleged misrepresentation as to the specific claim upon which the indictment was predicated. The jury was also told that even *Page 20
though they found these other claims to be false, that the defendant knew them to be false and fraudulently represented them for payment with intent to defraud, still defendant could not be convicted unless they found such was the case as to the specific claim in question.
Appellant, upon arraignment in the instant case, entered a plea called "answer and plea of res judicata." Upon motion by the State this plea was stricken from the record, and which ruling constitutes one of the assigned errors.
During the trial herein, and at the close thereof, objection was made to a motion to withdraw from the record the various claims which had been considered by the jury in the first trial. This was under the theory of res judicata. The trial court overruled the same and this is assigned as error.
At the close of all of the testimony appellant moved for a directed verdict, one of the grounds being the claim of res judicata. This motion was overruled and this ruling is assigned as error.
The above three assignments of error will be considered together upon the question of res judicata.
[1, 2] The law is well-settled that the defense of res judicata is recognized as being applicable to criminal as well as civil cases. Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L. Ed. 180; 30 Am. Jur., Judgments, section 178; 147 A.L.R. 991; State v. Melia, 231 Iowa 332, 1 N.W.2d 230; Restatement of the Law, Judgments, page 159. This defense is, however, vastly different than a plea of "former jeopardy." In the former jeopardy plea, the second prosecution must be for the same act and crime, both in law and in fact, as was the first prosecution. 15 Am. Jur., Criminal Law, section 359; State v. Folger, 204 Iowa 1296, 210 N.W. 580; State v. Cowman,239 Iowa 56, 29 N.W.2d 238. In a defense of res judicata the same may go to the entire charge or may be asserted only as to a portion of the evidence to be offered on the second trial. Restatement of the Law, Judgments, section 68; 50 C.J.S., Judgments, section 754(a); 147 A.L.R. 196, 197.
[3, 4] I. In this state all criminal procedure is statutory. Section 777.11, Code of 1946, designates the pleas that may be entered to an indictment. Division (3) thereof says "of a former judgment of conviction or acquittal of the offense charged." *Page 21
This has always been held as meaning "former jeopardy." The law is well-settled that a plea of former jeopardy will not be considered where the same transaction may be the basis for the second prosecution, as was the first, where the transaction represents two distinct offenses. Especially is this true where the two offenses are made so by statute. See sections 719.1 and713.1, Code of 1946. The law is also well-settled, although there is some authority to the contrary, that a conviction or acquittal for a substantive offense will not sustain a plea of former jeopardy upon a trial for conspiracy to commit the act. 15 C.J.S., Conspiracy, section 47(a); 112 A.L.R. 983; State v. Brown, 95 Iowa 381, 64 N.W. 277. State v. Blackledge,216 Iowa 199, 243 N.W. 534. Thus, while in a plea substance rather than form is to govern (State v. Callendine, 8 (Clarke) Iowa 288), it is apparent that the former acquittal of appellant does not sustain a plea of former jeopardy, and the plea of res judicata not being recognized by section 777.11, Code of 1946, there was no error in striking the plea. State v. Caywood,96 Iowa 367, 65 N.W. 385.
[5] II. Appellant asserts that he is entitled to a directed verdict under the theory of res judicata irrespective of the ruling upon the motion to strike the plea, and relies upon the recent case of Sealfon. v. United States, 332 U.S. 575, 580, 68 S. Ct. 237, 240, 92 L. Ed. 180. In that case the defendant had been tried upon the theory of aiding and abetting, and acquitted on the charge of conspiracy to defraud the United States, based upon a letter written by defendant and alleged to be false and written with intent to defraud. He was then indicted and tried for the substantive offense of uttering false invoices, based upon the identical letter. The United States Supreme Court in reversing a conviction thereon said:
"The basic facts in each trial were identical. As we read the records of the two trials, petitioner could be convicted of either offense only on proof that he wrote the letter pursuant to an agreement with Greenberg. Under the evidence introduced, petitioner could have aided and abetted * * * in no other way. * * * It was a second attempt to prove the agreement which at each trial was crucial to the prosecution's case and which wasnecessarily adjudicated in the former trial to be non-existent." (Italic added.) *Page 22
Sound as that decision may be, upon the facts therein, it is of no assistance to appellant. While the act committed by him, which was the basis for the charge in the former case, is of the identical type as was committed by him in the instant case, it was a separate and distinct act from the ones relied upon in the present case. The determination in the first case that the act was not fraudulent goes no further than that specific act. It was not "the core of the prosecutor's case in each case", as was the situation in the Sealfon case. The defense of res judicata not being available to appellant as a defense to the entire charge, he was not entitled to a directed verdict upon this basis. The ruling of the trial court was correct.
[6, 7] III. Also under the res judicata theory it is claimed by the appellant that it was error to submit to the jury, in the instant case, the same claims that had been considered by the jury in the former trial. As before stated, these claims were submitted solely as they might bear upon the knowledge and intent of the defendant in the doing of the specific act charged. These claims did not present or raise any ultimate facts to be decided by the jury in that case but were merely evidentiary facts from which the ultimate fact might be determined. The law is well-settled that the theory of res judicata is confined to ultimate facts and does not extend to evidentiary ones. Restatement of the Law, Judgments, section 68; 142 A.L.R. 1243; The Evergreens v. Nunan, 2 Cir., N.Y., 141 F.2d 927,152 A.L.R. 1187, and annotation. The various claims were properly permitted in the record.
[8] IV. Appellant further contends that there should have been a directed verdict because of the insufficiency of the evidence tending to connect him with the alleged crime — in short, insufficient corroboration of the accomplice, Croft.
[9] The crime charged is conspiracy, which is a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. State v. Schenk, 236 Iowa 178, 18 N.W.2d 169. We are here concerned with a criminal or unlawful act. The gist of the crime of conspiracy is the unlawful agreement or combination and does not depend upon the fulfillment of the act. State v. Clemenson, 123 Iowa 524, 99 N.W. 139; State v. Savoye, *Page 23 48 Iowa 562. It may be established by either direct or circumstantial evidence. State v. Carlson, 203 Iowa 90, 212 N.W. 312.
[10] The State's case is based upon the testimony of Elmer G. Croft and a series of transactions wherein many false claims, filed against Polk County by Croft, were approved by appellant and paid by Polk County. The law is too well-settled to require the citation of authorities that before one may be convicted upon the testimony of an accomplice there must be produced independent testimony connecting the defendant with the commission of the crime, and it is not enough that it may show a crime has been committed and the details thereof. But see section 782.5, Code of 1946; State v. Hild, 240 Iowa 1119,39 N.W.2d 139; State v. Davis, 230 Iowa 309, 297 N.W. 274. That Croft is an accomplice cannot be denied, and the trial court so instructed the jury. It cannot well be denied under this record that Polk County was defrauded of many thousands of dollars on account of the false claims filed by Croft.
[11] In order to sustain the conviction in this case it is not necessary that any specific overt act be alleged or proved by the State. Neither is it necessary that there be direct testimony as to appellant's participation therein, as such may be established by circumstantial evidence, and this may be sufficient whether used as the basis of proving the crime and defendant's doing thereof, or used for the purpose of corroborating an accomplice. State v. Reno, 67 Iowa 587, 25 N.W. 818; State v. Patten, 191 Iowa 639, 182. N.W. 788; State v. Stader, 194 Iowa 1087, 190 N.W. 373.
[12] There is no direct testimony tending to show any agreement or combination to defraud Polk County, to which appellant was a party, except as the same may be gathered from the testimony of Croft. For the purpose of corroborating their witness Croft, the State produces numerous witnesses who testify to incidents and circumstances attending appellant's conduct of his office and the many claims approved by him. Do they all, when considered together, supply that quantum of proof required to justify the submission thereof to the jury?
For many years Croft had operated a garage under the trade name of "Modern Motor Service", and under this name dealt with Polk County. Hereafter we will merely refer to Croft. For *Page 24
many years he had been furnishing storage, repairs and service for the cars owned and operated by the county, including those used in appellant's department. He was given a free rein and, as stated by him, they (the Board of Supervisors) said "you take care of them [county cars] and whatever you do is O.K. with us." It is clear that appellant had nothing to do with this arrangement.
The State offered in evidence Exhibits 1 to 119, inclusive, which are claims and corresponding warrants. They are for items alleged to have been furnished for the maintenance of the six cars and truck operated by appellant's department. They were all filed by Croft, Nos. 1 to 96 being under the name of Modern Motor Service and Nos. 97 to 119 being under the name of McGrath Motor and Body Service, which was another trade name adopted by Croft.
Croft, as a witness, identified each claim and stated whether it was true or false in whole or in part. Nothing would be gained by attempting to set forth herein in detail these various claims. In 1945, they totaled about $17,500, of which $11,500 is alleged to be false. In 1946, the total amount was about $12,583, of which $8,500 was false.
The indictment charges conspiracy between Cotton, Dewey, Hild, Parmenter and Thompson and with parties unknown; this unknown party must have been Croft himself. Croft, as a witness, states that when he filed these claims Mr. Cotton knew that they were false, as they had discussed the matter many times. He states that Mr. Dewey knew about it and that Dewey insisted that Mr. Hild be taken care of, as Hild had only the Juvenile Home and had no other way of getting it. He states that Mr. Hild was fully informed of the scheme and received many benefits therefrom. In reference to appellant's knowledge and participation in the affair the most of his statements are of a different nature.
Exhibit 9 contained an item for gasoline in the amount of $31.50 which Croft states went into the private cars of the supervisors. He states that Mr. Thompson did not know that it was being thus delivered and charged to his department.
During the 1946 campaign Mr. Hild was a candidate for reelection. Cars were rented by Croft and used in his campaign, the cost of which was recovered by false claims filed in appellant's *Page 25
department. Croft states that Mr. Thompson knew nothing about this until after the election.
Exhibit 11 is a claim for tires, amounting to $770.04. Croft states, concerning this claim: "I billed the county * * * and it got nothing, but Hild had to be taken care, Cotton had to be taken care of and Parmenter had quite an arm in this deal."
Exhibit 22 is for $873.13, and of this amount $678.21 was false. Croft testified that no one asked him if the items had been delivered but that Mr. Cotton knew they had not; that "this man here [Thompson] didn't know nothing about it. He wasn't supposed to know."
Exhibit 36 was for tires in the amount of $1053.15, all of which was false. Croft testifies: "Thompson was always asking whether we needed all that stuff on new cars and he was always on Cotton about it," also that he would ask him (Croft) and "I would tell him to call Cotton." As to this specific claim, "Thompson came to the garage and says, `where are all of these tires?' I said in the warehouse and he then asked me if we really had the tires, and I said, yes."
Thompson made inquiry about many items as to whether they were furnished for the cars, according to Croft. Croft relates one conversation as follows: "`Elmer', he says, `how come the cars need so much of these things?' and he says, `what are these things?' I said, You wouldn't know any more after I got through telling you than you know now, so forget it. I told that to Mr. Thompson a number of times because I knew he was ignorant of it."
In relating a conversation between Cotton and himself, Croft stated that Cotton said, "`Well, so long as Thompson is up there and he doesn't know anything about what it takes' — I said, Thompson is kicking and you know he is, he kicked on this bill and I said, How long do you intend to make a fool out of that man?"
Croft testified, after considerable questioning and arguing with the court and counsel, that he paid Thompson $200 in January 1946. At this time, he was removed from the courtroom. He appeared again as a witness the next day, but no questions were asked relative to payments to Thompson. That was on Saturday. *Page 26
On Monday, he was again a witness and testified that he paid Thompson $200 per month during each month in 1946.
The foregoing states, in substance, all the references that are made by Croft concerning appellant's knowledge or participation in the fraud. In addition to the above, the record shows that during the years 1945 and 1946, Croft would place parcels of meat in Thompson's car. Relative to this, Mr. Hill, a mechanic working for Croft, testified that Croft did this with a great many of his good customers, naming several prominent business and professional men in Des Moines as being some of them. The record also shows that during 1945 and 1946, appellant had a stable near Des Moines where he kept some saddle horses; that Croft gave appellant $200 to purchase a horse for him, but that it was returned when a satisfactory animal was not found. Later a horse was purchased for $75 and was kept at appellant's stable. Croft would come to the stable and ride this horse and would bring friends who would use appellant's horses. Some hay and grain were sent to the stable by Croft, and paid for by him. Croft says appellant wanted to pay for it, but that he would not take it.
In addition to the above, there remains the testimony as to the various claims and the manner in which they were approved by appellant. There is but little dispute in the record as to this phase of the case. Croft would make out a statement against the county for items alleged to have been furnished for the Welfare Department cars. This he would present to L.J. Huss, an auditor in that department. Huss would check the items and the charges. He then had them copied onto a requisition form that was used in the department, and would then attach to the claim and requisition a "bill back", which was a verification by Croft that the claim was just and correct. On the face of the requisition, which was directed to the County Purchasing Committee, the following was typed under the items listed: "Requested by ________; approved by ________." On the back of the bill back Huss placed a stamp which stated: "Audited by ________; submitted for approval by ________; ________." Huss would sign his name in this stamp where it said "Audited by ________." The papers then went to the chief clerk, George F. Greenlee, who would sign on the face of the requisition where it said "Requested *Page 27
by ________" and also on the stamp on the bill back where it said "Submitted for approval by ________." The papers then went to appellant's desk and he would sign on the requisition where it said "Approved by ________" and on the bill back where it said "Submitted for approval ________."
The papers thus approved were then given or sent to Croft. He would then procure the signature of three members of the Board of Supervisors to the effect that they had audited the claim and recommended payment. The claim would be presented to the county auditor, who would issue a warrant in payment. The claim would be formally allowed by the Board at its next meeting. This was the custom that had been in effect for many years.
Prior to Mr. Cotton's becoming chairman of the Board, in 1945, and likewise chairman of the Welfare Department, many items were furnished to the county when needed, without formal requisition, and paid for when the claim had been approved by the department head and three members of the Board. This was true of claims for car repairs, service, etc., for the county cars. When Mr. Cotton became chairman he required that all claims in the Welfare Department, whether for items already ordered or furnished or to be ordered, should have a requisition attached. It is stated by appellant, and not denied in the record, that it was customary on requisitions for articles that were already ordered or furnished to write thereon the word "received". This word appeared on most of the claims involved herein. This was done to indicate to the Board that no order was necessary. In no instance does there appear the signature, under this word "received", of anyone connected with the department. The testimony of the State examiners on this point is that to them the word "received" indicates that the articles had been actually received, although they concede that there is no mark or signature to show that a check had been made as to that fact.
Mr. Denman, a Des Moines businessman, was called as witness for the State. He testified that during the time the many bills for tires were being presented to the department, appellant came to him and complained about the number that were being purchased through his department. He also states that he told appellant that many firms were buying all the scarce materials *Page 28
they could and that he should not worry about it, but do as he was told by the chairman of the committee.
The county auditor and the treasurer both identified the exhibits and testified to the custom that had been in effect for years as to the payment of claims. The auditor stated that he relied upon the signature of the three members of the Board of Supervisors appearing upon the bill back. The State examiners related in detail the number of duplicated claims or items that were filed and the excessive number of claims filed for tires, tubes, brake linings, gasoline, etc. They stated that at no time did they discuss this matter with appellant.
While Croft testified to having paid sums of money to the appellant, there is not one word of other testimony tending in any way to substantiate this statement. There is, throughout the testimony of Croft, the inference, and frequently the direct statement, that Thompson knew nothing about it. The only thing in the entire record that can be taken as any indication that an agreement existed between appellant and any of the others to defraud the county is the fact that he did approve the claims — many of them false — and, if taken together, palpably so. The act of approving these claims which were filed in his department was an official duty falling upon appellant, as director. The duties of the office were heavy and the purchases numerous. He was the administrative head of the department as well as having the supervision of the one hundred two employees in the department. The record shows that in all cases where he approved a claim it had passed over the desks of the auditor and the chief clerk, and they had each approved. Each claim, when it reached his desk, had an affidavit by the claimant to the effect that the items had been furnished and that the claim was correct. Perhaps he was careless; perhaps he should have personally checked each item and made sure that it was actually furnished, but under this record we do not find sufficient facts tending to connect appellant with the fraud to warrant submitting the same to the jury for speculation. The motion should have been sustained.
[13] V. Appellant also asserts as an error certain remarks made by Mr. Thayer, State's attorney, in his opening statement to the jury. It is true that in that statement there were statements made as to what the State would prove, which a reading *Page 29
of the record shows was not proven, and some of them are of the nature that might lead us to believe that it was known they could not be proved. However, in every case that is tried, there are usually found statements by counsel as to what they expect to prove but later find that they are unable to do so. While it is not, in all cases, necessary to interpose objections, yet none was entered here and we are not prepared to say that such statements show deliberate bad faith on the part of counsel, such as to constitute reversible error.
[14] VI. Finally, it is claimed by appellant that a new trial should have been granted, based upon the recantation of the witness Croft. After the verdict, but before the motion for a new trial was filed, Croft made an affidavit in which he repudiated the testimony made at the trial as to payments made to appellant. He also went into great length in explaining his conduct as a witness, and the reasons for his false swearing. Counter-affidavits were filed in resistance thereto. Nothing will be gained by setting forth at length this series of statements and denials. The record is clear that Croft committed perjury, either at the trial or in the affidavit. He was a twice-convicted felon, one of the convictions being for the fraud involved in this action. This recantation is included in the motion for a new trial as newly discovered evidence. While the statute does not include newly discovered evidence as a basis for a new trial (section 787.3, Code of 1946), we have held that anything that shows that the defendant did not receive a fair trial is sufficient. State v. Burgess, 237 Iowa 162, 21 N.W.2d 309.
While the authorities are not in accord on this question, the majority rule appears to be that ordinarily recantation by a witness is not an absolute ground for a new trial; that there is considerable discretion lodged in the trial court. 39 Am. Jur., New Trial, section 169, page 175; 33 A.L.R. 550; 158 A.L.R. 1062. Each case must, of necessity, depend upon its own peculiar facts. The question which is raised by a recantation goes to the credibility of the witness, and is a jury question, ordinarily. We are not prepared to say that the trial court abused its discretion here, especially in view of the fact that the question is really moot in view of our holding under Division IV hereof. *Page 30
For the reasons set forth in Division IV hereof this cause must be reversed. — Reversed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430259/ | Objections to final report of the executors were filed by W.C. Southwick, administrator with will annexed of the estate of Benjamin F. Myers, deceased, and Mary A. Myers, widow and devisee of said Benjamin F. Myers, and Lenore I. Sulgrove, daughter and legatee and devisee of said Benjamin F. Myers, against William M. Myers, Paul M. Wolf, and Lewis Jolley, personally and as former executors of the estate of Benjamin F. Myers. The objections will be taken up separately. The court ruled that the executors were indebted in the amounts hereinafter set out. There was no allowance to the executors for services and their attorney, Allen T. Percy, was allowed the sum of $300. From this ruling of the court the executors appeal, and Allen T. Percy, attorney, appeals from the amount of the allowance to him.
Benjamin F. Myers died August 8, 1931, possessed of a considerable estate, including two farms, one in Dallas county, of 240 acres, and the other of 320 acres in Madison county. There was a mortgage of $10,000 on the west half of the Madison county farm to Bankers Life Company. Decedent also owed $5,121.99 to Valley National Bank on a note for money he had borrowed to carry on farming operations. There were other notes and obligations amounting to more than $4,000. During his lifetime Mr. Myers had operated the two farms under a partnership arrangement with his son, William M. Myers, who *Page 505
occupied the Dallas county farm, and his son-in-law, Paul M. Wolf, who occupied the Madison county farm. Decedent furnished and owned half of the livestock, grain, and feed on the farms and the tenants provided and furnished their own farming equipment and labor. The income therefrom was divided equally between the owner and the tenants.
For a better understanding of some of the objections to the final report it is necessary to note some provisions of the will, which was admitted to probate on August 19, 1931. After directing payment of debts, the personal property of decedent was bequeathed to his five children, Florence M. Wolf, Ada M. Jolley, Helen E. Heimberger, William M. Myers, and Lenore I. Shoff. Apparently, Lenore I. Shoff, described as a daughter in the will, Lenore I. Myers, so described in the inventory, and Lenore I. Sulgrove, appellee and objector to the report of the executors, is one and the same person. A property in Dexter was devised to Mary A. Myers, the wife. The fourth clause of the will devises a life estate in the two farms to Mary A. Myers, and continues as follows:
"* * * she to have the right to the use, occupancy and enjoyment of all of said real estate as well as the rents and profits arising therefrom, for and during the term of her natural life only; she to pay all taxes assessed against said real estate, keep the improvements thereon in reasonable repair, and insured for the benefit of my said estate in some reliable insurance company. The provisions made herein for my said wife to be in lieu of her dower and distributive share in and to my said estate, as surviving widow."
The fifth clause of the will directs that the real estate shall not be mortgaged; and the sixth clause directs that after the death of testator and his wife his executors shall, as soon as practicable and consistent with the best interests of the estate, proceed to sell and convert into cash all of the real estate in which his wife was devised a life interest.
Seventh, the will directs a division of the net proceeds of the sale among the children named above. The eighth clause of the will is important to the controversy before us. It provides as follows: *Page 506
"It is my wish and I hereby request that my beloved wife, Mary A. Myers, appoint the executors hereinafter named, as her agents, to lease for her benefit, the real estate described in Item Fourth hereof, collect the rents, attend to paying of taxes and making of necessary repairs to improvements thereon; thereby relieving my said wife of the work and worry connected therewith; and I further request that said real estate shall be rented for not less than Eight ($8.00) Dollars per acre nor more than Twelve ($12.00) Dollars per acre, using their best judgment as to the amount of rental for any year in accordance with the conditions prevailing at that time * * *."
The will further provides for determination of the proper amount of rental by arbitration in case the executors could not agree as to the amount thereof. The eight clause continues:
"* * * and provided further that my son, William M. Myers, and son-in-law, Paul M. Wolf, shall be given the refusal of the farms which are now occupied by them as tenants, at the rental agreed upon by said executors or said committee selected by them, as the case may be."
The ninth clause provides:
"It is my wish and I hereby request that if the fund realized from the rents and profits of the real estate described in Item Fourth hereof shall, on the first day of January in any year exceed the sum of Two Thousand ($2,000.00) Dollars and all taxes, repairs, insurance and living expenses of my said wife have been fully paid for the preceding year, that all surplus above said sum of Two Thousand ($2,000.00) Dollars be divided by my said wife, Mary A. Myers, among our children then living and the issue of any child who may have deceased, such issue taking the share to which such deceased child would have been entitled if living."
William M. Myers, Paul M. Wolf, and Lewis Jolley were appointed executors and qualified as such August 20, 1931.
Orders were made by the court allowing $2,500 for support of the widow and authorizing the executors to continue the testator's business of feeding livestock. The inventory and *Page 507
preliminary inheritance-tax report showed the widow and the heirs named above; fixed the value of the Dexter property at $3,500, the Dallas county farm at $42,000, and the Madison county farm at $52,000; accounts receivable at $10,831.52; cash, $822.50; note and mortgage on Minnesota land of W.J. Marsh for $5,450, which was later compromised for $1,000; household goods, $570; and general assets, including decedent's interest in the stock and property on the rented farms, $12,428.17. The Madison and Dallas county farms continued to be rented by Paul M. Wolf and William M. Myers, respectively.
Included in the inventory was certain indebtedness of the three executors: William M. Myers, $5,349.43; Paul M. Wolf, $4,379.55; and Lewis Jolley, $287.25; together with a note for $750, with interest amounting to $822.50. Payments were made on some of this indebtedness and the amounts due were evidenced by notes given by the various parties to the executors as follows: Paul M. Wolf, on his note of April 25, 1932, computed with interest to the time of trial, $2,548.30; William M. Myers, balance found due at trial with interest on note executed April 25, 1932, $1,936.91; and Lewis Jolley, on his note of June 1, 1930, with interest, $1,491.31, and on his note and account of $287.25, with interest, $529.15; all as found by the court to be due. Other matters in relation to the conduct of the estate will be referred to under the different objections as they are considered.
Dissatisfaction on the part of the widow, Mary A. Myers, and others finally resulted in an application for the removal of the executors, and upon hearing the district court ordered their removal, which order was later affirmed by this court on October 15, 1940. See In re Estate of Myers, 229 Iowa 170, 294 N.W. 235.
Four intermediate reports were filed by the executors. The first report covered the period from August 20, 1931, to the date of such report, April 9, 1932, and showed a balance of cash on hand of $1,390.34. The second report, filed February 15, 1934, was in two parts, one entitled "estate account," in which there was a balance of $95.43 belonging to the estate, and one entitled "rent account," in which there was shown a balance of $14.26. This report also showed the amounts due from the executors as *Page 508
heretofore stated, and included also $360 owing by William M. Myers for 1,448 bushels of corn, $185 owing by Paul M. Wolf for 740 bushels of corn and $60 owing by Paul M. Wolf for 176 1/2 bushels of wheat. Later there were filed a third and fourth report of executors on November 19, 1934, and April 25, 1939, respectively.
On January 11, 1940, in accordance with an order of court, the executors filed their final report, to which objections were taken by the appellees herein. These objections were heard and on the 4th day of May 1942, the court rendered judgment thereon. The appellants herein take exception to six of the findings and rulings of the court and these will be taken up in their order.
I. The court found the executors liable officially for the failure to collect from themselves personally the amounts they owed at the time of decedent's death, and to this ruling and order appellants take exception. Except as to one credit alleged to be due Paul M. Wolf of $1,065.61, which will be discussed later, the amounts found by the court as due the estate are not seriously in dispute, and were the amounts reported by the executors in their reports. The court further found that the executors were liable for the difference in value between certain personal property consisting of feed bunks, hog troughs, etc. inventoried at $168 and finally sold in February 1938 for $83.88, amounting, with interest, to a difference of $111.80. No contention is made in the appeal by the former executors in regard to this latter charge nor the charge for corn and grain purchased from the estate by the executors, amounting, in the case of William M. Myers, to $510.24, including interest, and, in the case of Paul M. Wolf, to $346.79, including interest, so that we may consider these two charges as admitted.
[1] Appellants do not dispute the general rule as laid down in McEwen v. Fletcher, 164 Iowa 517, 146 N.W. 1, Ann. Cas. 1916D, 631; In re Estate of Parker, 189 Iowa 1131, 179 N.W. 525; In re Estate of Windhorst, 227 Iowa 808, 288 N.W. 892; and In re Estate of Christensen, 229 Iowa 1162, 296 N.W. 198; and cases cited therein. Executors are liable for debts which they personally owe the deceased in the absence of any showing of insolvency throughout the period of indebtedness. The rule *Page 509
is that insofar as an executor or administrator may be indebted to the estate at the time of his qualification, it is his duty to account for such indebtedness, and he will be presumed to have set aside funds for the payment thereof unless it be shown that he was insolvent and did not have and could not procure the money. In re Estate of Christensen, supra. The principal argument of appellants here is to the effect that at the hearing in the district court they did so show their insolvency. We have examined the testimony in relation thereto and are satisfied with the holding of the district court that it fails to sustain the burden imposed upon the executors of showing insolvency. This was a question of fact, and under the general rule that the finding of a court under competent evidence on a disputed question of fact shall have the force and effect of the verdict of a jury we hold that so far as these items of indebtedness to the estate are concerned the holding of the district court was correct and should be affirmed. This is with the exception of the credit to Paul M. Wolf hereinafter referred to. The burden to show insolvency is upon the debtor executors and such insolvency must be shown throughout the whole period of indebtedness to avoid liability. A mere showing that at some time during the period the debtor was insolvent is not sufficient. Subject to remand and further order on the question of credit on the Paul M. Wolf indebtedness, the order of the court as to the indebtedness of the executors is affirmed.
[2] II. The second assignment of error is that the court erred in charging the executors with $670 plus interest on account of disbursement of said sum from the funds of the estate and paid to Ada Jolley, who is the wife of one of the executors. This disbursement is referred to as payment on a note in Exhibit D-45, which is an estate record which was kept under the direction of the attorney, Mr. Percy, in his office and is the estate account from which the executors' reports were prepared. The court refused to allow this amount as a credit to the executors. The evidence in relation to this disbursement was meager, and, although it seems to have been on a note, none of the executors could testify from recollection what the payment was for. It is assumed in the argument of appellants that this amount was probably paid to Ada Jolley because she had stayed at home and *Page 510
earned it by taking care of her father and mother. This coincides with the statement of Mrs. Myers herself, as follows:
"I am the widow of Benjamin F. Myers, deceased. We were maintaining a home here in Dexter at the time of his death. Ada Jolley lived here with us and was paid so much a year for staying here. He paid Ada for what she put in here. That is where the $600.00 comes on."
This testimony indicates that Ada was paid in some amount for services. Exhibit D-45 indicates that the note was given August 1, 1931, in payment of a debt prior to Mr. Myers' death, and it would be a fair conclusion that this was the note afterward paid by the executors.
Objection is made by appellees that there was no claim filed in the estate for this amount. But the charge consisting, as we believe it did, of a note, it could be paid by the executors without the actual filing of a claim. See In re Estate of Plendl,218 Iowa 103, 253 N.W. 819, citing In re Report of Atkinson,210 Iowa 1245, 232 N.W. 640, and quoting from In re Estate of Harsh,207 Iowa 84, 218 N.W. 537.
Under the testimony produced, and no evidence to the contrary, there is no such dispute in the facts as would render necessary the application of the rule heretofore referred to — that the holding of the court has the effect of a jury verdict — since the court's holding seems to be unsupported by the evidence. We hold that such payment should be allowed as reported. The ruling of the court as to this charge against the executors should, therefore, be reversed.
[3] III-IV. Appellants assert that the court erred in charging to the executors $249.71 on account of penalties collected by the county treasurers of Dallas and Madison counties on the taxes on the farms in several different years, since it was the duty of the life tenant to pay the taxes. We will consider this assignment of error in connection with the argument of appellants that the court erred in charging rents on the farms to the executors. They argue that because the life tenant was in possession of the farm and entitled to the rent therefrom the executors are merely her agents, and, if liable for any rent, are liable to her as agents of the life tenant and not to decedent's estate. *Page 511
Item Eight of the will states that it is the testator's wish that his wife appoint the executors named in the will as her agents to lease the properties, collect the rents, attend to payment of taxes, and the making of necessary repairs, etc. This was not a direct appointment of the executors as agents but merely a request — a precatory request. The widow was not obligated to appoint the executors named as her agents, and, as a matter of fact, a large part of her business was transacted for her by Mr. Percy, the attorney. Under the will there was no authority conferred upon the executors, as such, to rent the land, pay the taxes, or do any of the other things enumerated in Item Eight of the will. Such authority could come only from the will or from the person entitled to such rents or required to pay the taxes, namely, the widow and life tenant, Mary A. Myers. It would appear, therefore, that for their actions in regard to the land they are responsible not to the estate of deceased but to the owner of the life interest in the real estate, Mrs. Myers. As agents of this devisee they were responsible to her. Richman v. Ady, 211 Iowa 101, 232 N.W. 813; In re Estate of Jackson,225 Iowa 359, 280 N.W. 563; In re Estate of Pitt, 153 Iowa 269, 133 N.W. 660.
[4] But assuming that appellants did enter into a lease without authority from Mrs. Myers, and with no authority under the will, and without authority under the statute since there were other heirs present and competent to act and take charge of the real estate, they would still not be liable to decedent's estate but only liable to the person having the life ownership of such land. Cohen v. Hayden, 180 Iowa 232, 157 N.W. 217. In the Cohen case the defendant, as executor, had leased a business property without authority, and, as the evidence showed, with the knowledge on the part of the lessee that she had no such authority, and the court held that she was personally liable thereon. Such is also the holding in Cheyne v. Quackenbush,198 Iowa 420, 199 N.W. 367. So that in any event, whether authorized by the widow, or without authority from anyone, the liability of such executors would not be to decedent's estate but to the person to whom such rents were payable. See, also, Laverty v. Woodward, 16 Iowa 1; and In re Estate of Bourne, 210 Iowa 883, 232 N.W. 169. If the executors did, in fact, *Page 512
assume possession and control of the real estate, they might become chargeable as trustees for the owner, but not as such executors. That they are merely agents is expressly stated in the will. Appellees urge that the executors did take charge of said real estate and they cannot escape liability for the penalties created because they failed to perform their duty to said estate. This is true; but the duty was not to the estate, but to the life holder of the real estate.
Appellees argue that the will created an equitable conversion and we may assume that it so did. They argue further that such real estate became personal property at the instant of Mr. Myers' death and that it was the duty of the executors to take charge of all personal property. In support of this proposition appellees cite Ihle v. Ihle, 222 Iowa 1086, 270 N.W. 452; and In re Estate of Holderbaum, 82 Iowa 69, 47 N.W. 898. The Ihle case does not apply. In that case there was no intervening life estate and the rents accrued between the equitable conversion and the actual sale of the land were collected by the administrator. In the Holderbaum case, as shown by the record on file in this court, the executor was directed by the will to manage and control the real estate. The decision in that case charged the executor for the use of the land. In the instant case, the widow is in fact the landlord. Beaver v. Ross, 140 Iowa 154, 160, 118 N.W. 287, 289, 20 L.R.A., N.S., 65, 17 Ann. Cas. 640, holds that by the terms of the will there is immediate equitable conversion, but states: "Of course, this doctrine can not be extended so far as to defeat the widow of her rights." The Beaver case is cited in Peters v. Thoning, 231 Iowa 755, 2 N.W.2d 76, where the court holds that the will accomplished an equitable conversion at the time of the testator's death but enjoyment was postponed until the death of the life tenant. Whenever the equitable conversion takes place, it can in no way affect the use and enjoyment by the widow of her life estate.
The theory, and, we think, the true rule is that in a case where there is a life estate, after which the property is to be sold, the interest of the life tenant is realty but the interest of the remainderman would be treated as personal property from the time of the testator's death. *Page 513
In the instant case the will passed to the remaindermen no right to the possession of the real estate but only a right to the proceeds at the expiration of the life estate, as is stated in Shillinglaw v. Peterson, 184 Iowa 276, 288, 167 N.W. 709, 713, in which case the testator created a trust for the life of certain devisees. The court there says:
"While the cestui que trusts are alive, and the trustee in full and active possession of the trust property, no right to the possession or enjoyment of even the proceeds of the estate came to these plaintiffs under this will."
Since we are convinced that the rent from the land was not an asset of the estate, the question raised as to the amount of rents due or unpaid is not material to this case. Whether or not appellants are responsible to Mary A. Myers is not a question which can be determined in this proceeding and we do not consider or decide it.
The court determined that appellants were acting as executors and not as agents, but we find no warrant for such a holding. Therefore, there can be no liability in this proceeding against appellants and our holding must be that the court was not warranted in sustaining this objection to the final report.
[5] This holding as to rents necessarily carries with it the ruling that as to penalties accrued by reason of nonpayment of taxes the executors are likewise not liable to the estate, but, if any liability exists, it would be to Mary A. Myers, the widow and life tenant of the property. This objection to the report should have been overruled.
[6] We do not find that under the terms of the will any part of the rents is shown to belong to the remaindermen. Under Item Nine of the will it is provided:
"* * * that if the fund realized from the rents and profits of the real estate described in Item Fourth hereof shall, on the first day of January in any year exceed the sum of Two Thousand ($2,000.00) Dollars and all taxes, repairs, insurance and living expenses of my said wife have been fully paid for the preceding year, that all surplus above said sum of Two Thousand ($2,000.00) Dollars be divided by my said wife, Mary A. Myers, among our children then living * * *." (Emphasis supplied.) *Page 514
This imposed no duty upon the executors and there is no evidence that at any time there was a surplus over $2,000 above her living expenses and maintenance of the property, including taxes. Such part of the court's order as holds the executors liable to the estate for rents and penalties on taxes is therefore reversed.
[7] V. In its decision the court charged the executors with $1,155.25 on account of interest paid on the mortgage from the rents, the reason being that the rents belonged to Mary A. Myers and the interest should not have been paid from such rents. Mary A. Myers was the life tenant. The property was subject to encumbrance. It was no part of her duty to pay off the principal of the encumbrance but it was her duty to keep up the interest. Trego v. Studley, 106 Iowa 742, 75 N.W. 179; Werner v. Dolan,106 Iowa 355, 76 N.W. 724; 31 C.J.S. 63, section 48.
The mortgage of $10,000 had been reduced by the executors from the proceeds of the personal property of the estate to the sum of $4,000. It is true that the amount of the executors' obligations to the estate would have practically paid off the mortgage, but the court has already charged them with interest on such obligations so that they should not be required to pay interest also upon this mortgage, which would be, in effect, charging them twice with interest.
But in any event, any obligation for the payment of interest on the mortgage would not be in favor of the estate but in favor of the widow as life tenant. The primary obligation to pay the interest was on Mary A. Myers. Mary A. Myers cannot be held to be entitled to recover judgment in an action such as this, wherein the objections are made to the report of the executors. The judgment entered was for a grand total of $11,268.65, for which the court held the executors and their bondsmen liable. This judgment would not be in favor of individuals but in favor of the estate, and all that can be required would be that the executors or their bondsmen account to the estate for the amounts found to be due such estate. An individual judgment could not be rendered in this case. That part of the order allowing interest on the mortgage paid from rents is reversed.
VI. In its ruling the court found that the household goods of the value of $300 and a Buick automobile of the value of $200 *Page 515
had been turned over to the widow. The court charged Mary A. Myers with the $500 for the household goods and the automobile but held that it should be an offset to her claim for interest paid on the mortgage indebtedness by the executors out of the rents and profits from the real estate. The widow asserted when the husband died all the household goods went to her and that the Buick car was turned over to her and that it was hers. However that may be, since we have held that the executors cannot be held liable in this action for such rents, we cannot sustain this finding of the court. If Mrs. Myers is indebted to anyone it would be to the estate. So far as these executors are concerned, the item can be considered as uncollected. This ruling of the court is reversed.
[8] VII. There is objection to the order of court in refusing to allow fees to the executors, and the refusal, which is presented in a separate appeal, to allow fees to Allen T. Percy, attorney for the executors, in excess of what has previously been allowed. We are not disposed to interfere with the judgment of the court in this respect. The affairs of the estate were handled, as many similar estates have been, by members of the family and by too many managers. There were the three executors, and in addition, Mr. Percy, who apparently did a great deal of clerical work both for the estate and for Mrs. Myers. The years during which the estate continued were strenuous ones; crop failures and drought resulted in less than normal returns, and we have no doubt in some instances misfortune as well as poor management entered into the conduct of the estate; but we think the court was justified in withholding fees.
As to Mr. Percy, while he did considerable work for the estate, he was, for a part of the time at least, also working for Mrs. Myers, and, in fact, for a period held a power of attorney from her for the conduct of her affairs. We see no sufficient reason for interfering with the rulings of the court in these respects and its orders as to fees will be affirmed.
[9] VIII. W.C. Southwick, administrator with will annexed, and Mary A. Myers, appellees in the main action for accounting, have filed a cross-appeal therein, much of which has been considered in our discussion of the main cause. *Page 516
The first three errors assigned refer to the rents and the computation thereof, the failure of the court to charge interest on rents, and allowance of a reduction on rentals, and allege double credit by the district court. Since we hold that the rents are not a part of this action so far as decedent's estate is concerned, we need consider these alleged errors no further.
The fourth error assigned in the cross-appeal is as to the measure of damages in computing the value of grain converted by the executors. We do not think this was a conversion, but a sale at a price for which the executors accounted, and for which, by the decree of the court, they are held liable. Nor should we disturb the finding of the court by which the cross-appellants allege the court did not hold the executors liable for grain not accounted for. There was evidence that all the grain remaining on hand at the death of Mr. Myers was fed to the stock on hand, and this matter was fully considered by the court and we do not feel inclined to interfere with its finding.
For the sixth error, cross-appellants urge that the court should have held the executors liable for the wrongful payment of a claim of Dorothy McIntosh. There was evidence that Miss McIntosh was a nurse during the illness of deceased. The claim is based on a note dated May 19, 1931, signed by decedent by "W.M.M." No one testified that the services for which the note was given were not rendered. Nor do we find in the objections to the report any specific claim that this item was not a valid claim and properly due from the estate, with the exception of the general statement that many of the disbursements as set out in the reports do not show what said disbursements were for and the objectors are unable to determine whether said disbursements are legitimate charges against said estate, and asking that the executors be held to strict proof on each and every disbursement. What testimony there was, was before the court, and the court properly determined that the claim, apparently for nursing services, was legitimate and therefore properly allowed by the executors.
The seventh error assigned by cross-appellants is that the court erred in not charging the executors the sum of $2,950.57, plus interest from January 12, 1933, on the note and mortgage of William M. Myers. This was a mortgage executed by William *Page 517
M. Myers and wife on certain personal property in the sum of $4,000. The court found that aside from the admitted indebtedness of William M. Myers, already referred to, there was no note of any kind for this balance of $2,950.57. There was no note introduced in evidence but only the mortgage. This mortgage, however, was explained, and apparently to the satisfaction of the court, by William M. Myers, who said that his mother, Mary A. Myers, and his sister, Lenore I. Sulgrove, wanted it made for the protection of the estate. The court, after hearing all the testimony in connection therewith, held that it never was a valid indebtedness against William M. Myers, and that there was no financial consideration for the making of the mortgage, and said there was doubt if any note was ever made for this amount, but considered the fact that the maker was quite heavily involved and owed the estate on another note. With these findings of the court we agree, and feel that the only note for which there was actual consideration was the one for $1,049.43, dated April 25, 1932, and payable to the executors of the Benjamin F. Myers estate. The court was right in refusing any charge in relation to the mortgage against the executors or William M. Myers.
The question of the attorney's fees raised on cross-appeal has already been discussed in the main action and no further reference need be made thereto.
The findings and order of the court on the matters alleged in the cross-appeal are affirmed.
IX. There remains to be considered a claim for credit on the indebtedness of Paul M. Wolf, in the amount of $1,065.61. This payment on Wolf's indebtedness does not appear in the final report and is claimed to have been overlooked in the hearing on the objections to the final report. If this payment was actually made it is only just that it be allowed. It appears from the testimony of Mr. Percy, the attorney, that this amount had been paid to W.C. Southwick, the administrator with will annexed, about November 13, 1939, from the proceeds of Paul M. Wolf's sale, and under order of Judge Hays, together with an additional amount upon rent to Mary A. Myers of $973.99. This sale of the Wolf property had been held on February 9, 1938. These *Page 518
transactions as to collection and payment were handled by Mr. Percy, as attorney and trustee, and such payment, if and as so made, would be a credit on the $1,379.55 note of Mr. Wolf, and with interest from the date of payment would reduce his indebtedness to the estate as the same appears in the intermediate reports of February 23, 1934, and April 25, 1939. It indicates that the final report as filed does not show all the credits. This claim for credit is made in appellants' reply argument, and is assailed by motion of appellees. Even if not shown by the final report, it is only fair and equitable that if such payment was made, credit therefor should be given. On remand, such credit for payment as is established should be given on the amounts charged against the executors in their official capacity. Appellees' motion is overruled, as is the further motion of appellees to strike appellants' amendment to abstract.
Appellees have filed motion to dismiss, alleging failure to serve notice on Allen T. Percy. So far as the main action is concerned, Mr. Percy would not be affected by this appeal. He is a party to an appeal from the disallowance of his claim for attorney's fees. On account of our disposition of this appeal, it is unnecessary to consider the motion further and it is overruled.
It appears from the record that nearly all of the vouchers relating to this estate have been lost or misplaced, so that they are not in evidence in the case. We are not determining where the fault lies for such failure to produce them, but we realize that the lack of these vouchers has caused great difficulty in presenting the case in the district court and a great deal of extra work for the district judge. Had the vouchers been accessible, no doubt the disposition of some of the objections could have been more readily accomplished; their loss rendered necessary the introduction of evidence which might not otherwise have been required.
This disposition of the case is without prejudice to any right of Mary A. Myers to recover from the executors individually any amount due her from any such executor.
We find it necessary to remand the case for further hearing in one respect — as to the question of the credit on the Paul M. *Page 519
Wolf indebtedness of $1,065.61. In other respects the disposition of the objections to the final report of the executors is as set out in this opinion. The cause is therefore remanded for hearing and order on the credit alleged to be due Paul M. Wolf and for final ruling and order in accordance with the finding of this court as to such claimed credit and the disposition of the objections as shown herein. — Affirmed in part; reversed in part and remanded with directions.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430260/ | Appellant was charged with the crime of violating section 5027 of the Code of 1931, which provides that "Whoever, while in an intoxicated condition, operates a motor vehicle upon the public highways of this state, shall, upon conviction or a plea of guilty, be punished," as therein provided.
The defendant, Calvert Hooper, was arrested by the sheriff of Lucas County shortly after one o'clock a.m., June 2, 1935, for the alleged crime of operating a motor vehicle while intoxicated. There is ample evidence in the record to show that the defendant was intoxicated when arrested. The crime charged against him was that of operating a motor vehicle while intoxicated.
In order to convict of the charged crime, it was necessary to establish two propositions: First, that the defendant was intoxicated, and second, that while intoxicated he was driving a motor vehicle. Although the evidence may show that the defendant was intoxicated when arrested, there is no direct evidence showing that he was driving the car while intoxicated. The State attempts to show that he was so driving the car by circumstantial evidence. There is not one word of direct evidence in the record showing that the defendant was intoxicated while driving the car in question.
The record tends to show that a Ford car similar to the one in question was seen driving northward along the east side of the square, in Chariton. This car was driven over a barricaded pile of debris a few feet from the curbstone, and after driving over this barricade it struck another car parked on the north side of the barricade, denting the rear fender of that car. The testimony also shows that a rim and broken glass from the headlight of a Ford V-8 were found near this pile of dirt. The Ford car was then driven off north. This occurred between 11 and 11:30 p.m. Thereafter, and about 12:30 a.m., a Ford car with a flat tire was seen stuck in the mud just off the left side of the pavement at an intersection with a dirt road. The right front fender of this car was dented, and the rim and one lens were broken off. There was a rain sometime before midnight, heavy enough to wash mud onto the pavement and soften the dirt road at the place where the Ford car left the pavement.
No one saw the Ford car run into the mud and no one *Page 483
knew how long it was there. No one saw who was driving the car, or how many persons were in it when it was driven off of the pavement.
The evidence chiefly relied upon by the State to show that the defendant was driving the car while intoxicated was the following:
The witness Wells testified that while driving his own car in Chariton that night between twelve and one o'clock, he saw the defendant, Calvert Hooper, approach his car from the direction of a Ford car mired in the mud. Wells did not see the defendant in the Ford car nor did he see him leave it. He does not say and no other witness says that there was no other person in the Ford car at that time or at any other time that night. He testified that the defendant asked him for a cigarette. He gave him one and told him to get into his car and they drove off to the home of Paul Laing, a garage man. Wells does not say that the defendant told him to get the garage man, but took it upon himself to wake him for the purpose of getting the Ford out of the mud. They returned to the mired car in a half hour. During that time the defendant was out of Wells' presence twice. Wells testified that while the defendant was with him he appeared to be under the influence of intoxicating liquor. After returning to the car in the road, the sheriff came along and finding Hooper intoxicated, placed him under arrest. This was shortly after one o'clock in the morning.
The following occurred before the arrest. Paul Laing, the garage man, testified that the defendant came into his place with a Miss Allen about eleven o'clock that night for the purpose of using his telephone. He saw the defendant drive up, but didn't know the make or color of the car. He noticed the defendant's condition at that time and testified that he was not under the influence of intoxicating liquor at that time.
After that, between 11:30 and 12 o'clock, the defendant also stopped at a cafe for a lunch. The lady who waited on him there said that he was not under the influence of liquor at that time. He did not drive up to the cafe in a car, and she did not see any car in front of or around her place at that time.
The only other circumstantial evidence offered was the testimony of the witness Mitchell who saw a gray colored Ford V-8 car at eleven o'clock that night run over the edge of a pile of dirt on the east side of the street and strike the left side of a parked car. *Page 484
This witness did not see how many people were in the car, and although he knew the defendant for a long time, he didn't know or recognize any person in the car.
The foregoing constitutes substantially all the circumstances relied upon by the State to sustain a conviction of the crime charged. No person saw, and there was no direct evidence tending to show that the defendant was operating the car in question while in an intoxicated condition. The facts relied upon to show that the defendant was so operating a car while intoxicated were wholly circumstantial.
At the close of the evidence, defendant moved for a directed verdict upon the ground that the evidence was wholly insufficient to prove that defendant was driving a car while intoxicated. This motion was overruled and the case submitted to the jury, which returned a verdict of guilty. Thereupon, defendant also filed a motion for a new trial, which was also overruled.
Defendant contends that the court erred in failing to direct a verdict, upon the grounds alleged, and in failing to sustain a motion for a new trial upon the same grounds.
We come then to a consideration of the question of the sufficiency of the evidence to sustain a conviction. The verdict is based wholly upon circumstantial evidence as to whether defendant was driving a car while intoxicated.
It is the well established rule of law in this state that a conviction may be sustained upon purely circumstantial evidence, if such evidence points to the defendant's guilt beyond all reasonable doubt and is inconsistent with any reasonable theory of innocence. State v. Reno, 67 Iowa 587, 25 N.W. 818; State v. Elsham, 70 Iowa 531, 31 N.W. 66; State v. Minor, 106 Iowa 642, 77 N.W. 330; State v. Grba, 196 Iowa 241, 194 N.W. 250; State v. Lorey, 197 Iowa 552, 197 N.W. 446; State v. Overbay, 201 Iowa 758, 206 N.W. 634; State v. Webb, 202 Iowa 633, 210 N.W. 751, 49 A.L.R. 1389; State v. Jenkins, 203 Iowa 251, 212 N.W. 475; State v. Dillard, 207 Iowa 831, 221 N.W. 817; State v. Anderson,216 Iowa 887, 247 N.W. 306; 16 Corpus Juris 762.
In State v. Grba, 196 Iowa 241, loc. cit. 246, 194 N.W. 250, 252, this court, speaking through Justice Faville, said:
"The rule is so well established, and has been so frequently recognized, that a conviction of crime may rest upon *Page 485
circumstantial evidence, that it is unnecessary that we cite the authorities to sustain the rule."
It is likewise the well settled rule of law in this state that "to justify a conviction upon circumstantial evidence, the facts and circumstances relied upon * * * must not only be established beyond a reasonable doubt, but the facts, when established, must not only be consistent with the defendant's guilt, but inconsistent with any other rational hypothesis. The facts established must exclude every rational hypothesis except the ultimate fact sought to be established, to wit, that the defendant is guilty of the offense charged." State v. Bricker,178 Iowa 297, loc. cit. 306, 159 N.W. 873, 876; State v. Johnson,19 Iowa 230; State v. Clifford, 86 Iowa 550, 53 N.W. 299, 41 Am. St. Rep. 518; State v. Bosch, 172 Iowa 88, loc. cit. 92, 153 N.W. 73; State v. Smith, 207 Iowa 1345, 1348, 224 N.W. 594.
In the case at bar the State relies chiefly upon State v. Lorey, 197 Iowa 552, 197 N.W. 446, and State v. Anderson,216 Iowa 887, 247 N.W. 306, to sustain the conviction herein.
In State v. Lorey, 197 Iowa 552, 197 N.W. 446, the lower court sustained defendant's motion for a directed verdict. In that case, loc. cit. 554, this court said:
"The ruling of the court was clearly erroneous. The evidence was ample to take to the jury the question as to whether or not appellee `was engaged in the operation of said automobile.' The witness for the state testified that he heard the crash of the collision. He went immediately across the street to the car, and found appellee in the car, at the wheel, in an intoxicated condition. It was quite impossible, under the evidence, for this drunken man to have gotten into the car at the wheel in the brief length of time that intervened between the time the witness heard the crash and the time when he arrived at the car. The case presented all the essential facts for the determination of the guilt of appellee by the jury, and in fact, upon the evidence, the conclusion of guilt is quite irresistible."
In State v. Anderson, 216 Iowa 887, loc. cit. 892, 247 N.W. 306, 308, this court said:
"Having elected to stand on his motion for a directed verdict, the appellant offered no testimony at the trial, so that on the record we have the circumstance of an automobile loaded *Page 486
with fifty-five gallons of alcohol which must have been driven to the place where it was found, standing at the side of a country road with the defendant alone in possession thereof, and seated in the automobile with a loaded revolver lying in the driver's seat beside him."
From the evidence hereinabove disclosed, the mired Ford car could have been standing in the position in which it was seen by the witness Wells and the sheriff for at least an hour before he saw the defendant, Calvert Hooper, come from the direction of that car. Even if the defendant had been driving the car prior to the time it stopped in the mud, which was not shown, he would have had ample time to get into the condition he was in when seen by the witness Wells and the sheriff. There is, however, no testimony tending to show that defendant had been in this car, much less driving it, after he became intoxicated. There is no testimony that the defendant was the only person in the car. While it is conceded in argument that the car in question belonged to the defendant's mother, the evidence shows without dispute that Mr. Tom Hooper, defendant's father, was at the place where the car was stuck in the mud, and that he, Tom Hooper, drove the car away. Under this testimony it is more reasonable to conclude that Tom Hooper, rather than the son, was the person who was driving the car when it stopped on the road.
The evidence tends to show that the Ford in question ran over a pile of debris and struck another car parked in the street. It does not necessarily follow that because such an accident may have taken place, that the driver of the car was intoxicated. Neither does it necessarily follow that because the defendant was seen coming from the direction of the car in question, that he operated the car while in an intoxicated condition, as it was not shown that he was in the sole possession of the car at that time. In order to sustain a conviction in this case, it must be assumed from the circumstances shown, that because a witness saw the defendant coming from the direction of the Ford car, that he was the person who drove it, and that he was intoxicated while so driving.
In State v. Lorey, supra, the officer who heard the crash immediately went across the street to the car and there found the defendant in the seat behind the wheel in an intoxicated condition. *Page 487
In State v. Anderson, supra, the defendant was charged with illegally transporting liquor. The car containing fifty-five gallons of alcohol was found standing at the side of a country road with the defendant alone in possession of the car, seated in the automobile with a loaded revolver in the seat beside him.
In the case at bar the defendant was not even seen in the car at the time it became stalled in the mud on the road, nor is there any evidence whatever tending to show that he was intoxicated before that time. No one testified that he was alone in the car. On the contrary, the evidence shows that the husband of the owner of the car was present at the time and drove it away. The circumstances in this case point more strongly to Tom Hooper, as being the operator of the car, than they do to the defendant.
The only witness who testified seeing the defendant driving any car that night was the witness Laing, and he didn't know what kind of a car it was. That was eleven o'clock p.m., and the testimony shows without dispute that the defendant was not under the influence of liquor at that time.
The mere fact that evidence might create a suspicion of the guilt of a party is not sufficient to warrant a conviction. State v. Vandewater, 176 N.W. 883; State v. Saling, 177 Iowa 552, 159 N.W. 255.
In the case of State v. Vandewater, 176 N.W. 883, 884, this court said:
"The most that can be said for the testimony of the state is that it creates a suspicion of the guilt of the defendant, and it goes without saying that mere suspicion is not sufficient. There must be substantive proof of guilt — some fact proven which tends to establish the substantive facts upon which the state relies for conviction. * * * and where facts and circumstances are relied upon to prove guilt, they, when established, must negative every other rational hypothesis except the guilt of the defendant, and must be inconsistent with any rational hypothesis of innocence."
The mere fact that a person drove a car over a barricaded pile of dirt in the street would not necessarily raise a presumption that the person driving it was intoxicated. Likewise, the mere fact that a car became stalled in the mud with a flat tire, would not necessarily raise a presumption that the person driving *Page 488
the car was under the influence of liquor. It may be that the defendant drove the car in question, but we find no evidence in the record before us tending to show that he was intoxicated while so doing.
For the reasons hereinabove expressed, we are constrained to hold that the circumstances in this case fall short of pointing to the defendant's guilt with that degree of certainty required by the rule to justify a conviction upon circumstantial evidence.
The motion for a directed verdict, and the motion for a new trial, should have been sustained.
The case is, therefore, hereby reversed. — Reversed.
PARSONS, C.J., and ALBERT, MITCHELL, STIGER, ANDERSON, DONEGAN, HAMILTON, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430265/ | The case before us presents the usual aspects of a will contest. The record is long and the exhibits numerous. As is to be expected, the witnesses differ widely. Some pictured the testator as a capable, self-reliant, self-sufficient businessman fully competent to manage his affairs, and impervious always to importunity or any other external influence.
On the other hand, he was said to be suffering from senile dementia at the time the will was made, advanced arteriosclerosis affecting heart and brain, progressively growing worse. There was testimony that he was filthy in habit, going to bed with all his dirty clothes on (except possibly his shoes), and that he was dominated by and domineered over by proponent who acquired all his large estate to the exclusion of two minor grandchildren, his only other heirs. This contest is somewhat unusual in that there is no estate to be passed by the testament under investigation.
[1] It is manifestly impossible as it is unnecessary to set out the evidence at length. We have held:
"We are bound by the finding of the jury, who are triers of fact, if there is evidence supporting and sustaining their finding upon the ultimate question of testamentary capacity. Where reasonable minds, searching for the truth, might reasonably differ upon the record made as to what the ultimate fact is about which there is controversy, it is, and always must be, a question for the jury. Where the record presents a state of facts from which an ultimate conclusion must be drawn, and reasonable minds might differ as to what conclusion should be drawn from the ultimate facts proven, it then becomes a jury question." Philpott v. Jones, 164 Iowa 730, 734, 146 N.W. 859, 860.
Appellant cites these cases but none requires a result *Page 82
different than that herein announced: Perkins v. Perkins,116 Iowa 253, 90 N.W. 55; In re Will of Richardson, 199 Iowa 1320,202 N.W. 114; Cookman v. Bateman, 210 Iowa 503, 231 N.W. 301; In re Estate of Paczoch, 202 Iowa 849, 211 N.W. 500; In re Estate of Johnson, 222 Iowa 787, 269 N.W. 792; In re Will of Diver,214 Iowa 497, 240 N.W. 622; Worth v. Pierson, 208 Iowa 353,223 N.W. 752; In re Will of Shields, 208 Iowa 607, 224 N.W. 69; Wolfe v. Shroyer, 206 Iowa 1021, 221 N.W. 546; Hann v. Hann, 202 Iowa 807,211 N.W. 495; In re Will of Johnson, 201 Iowa 687, 207 N.W. 748; In re Estate of Fitzgerald, 219 Iowa 988, 259 N.W. 455; In re Will of Muhr, 218 Iowa 867, 256 N.W. 305; In re Estate of Mott,200 Iowa 948, 205 N.W. 770; Green v. Ellsworth, 221 Iowa 1098,267 N.W. 714.
[2] We quoted with approval in Mileham v. Montagne, 148 Iowa 476,486, 125 N.W. 664, 668, from Judge Cooley in People v. Garbutt, 17 Mich. 9, 16, 97 Am. Dec. 162, 164, as follows:
"`Mental disease is itself so various in character, so vague, sometimes, in its manifestations, and so deceptive, especially in its early stages, and its causes are so subtle and so difficult to trace, that the most experienced experts are sometimes obliged to confess that, however careful and thorough their investigations, they still prove unsatisfactory, leaving the mind not only in a condition of painful uncertainty upon the principal question whether mental disease actually exists, but when its actual presence is demonstrated, failing utterly, in many cases, to trace it to any sufficient cause.'"
In Brogan v. Lynch, 204 Iowa 260, 264, 214 N.W. 514, 516, Justice De Graff, speaking for this court, said:
"The question of undue influence, in a case of this kind, cannot be separated from the question of testamentary capacity; and conduct which might be held insufficient to influence unduly a person of normal mental strength might be sufficient to operate upon a failing mind. See Monahan v. Roderick, 183 Iowa 1; In re Will of Overpeck, 144 Iowa 400; In re Will of Wiltsey, 135 Iowa 430. "
With these preliminary observations we turn our attention *Page 83
to the record. Appellant concedes that "if either issue should have gone to the jury the error in submitting the other if found, would be without prejudice and would not require a reversal."
[3] Since the question before the court was whether the evidence was sufficient to support the verdict we set forth a part of the record upon which we think a jury might well have found the verdict they did. The evidence is not entirely clear on the matter but testator was in the neighborhood of 70 years old when the will was executed. Those who knew him for many years said that he was physically frail. Notwithstanding he acquired a large amount of property, consisting of 515 acres of land in Johnson county and more than $20,000 in bonds. Whether there was anything else, proponent got it all by deed and other transfers. An attorney who prepared most, if not all the papers executed by Ensminger, was a witness for the proponent, but the jury might have found that while he claimed to be acting as attorney for the testator, only, he was really working in the interest of the proponent, Alta C. Carlson. We offer no opinion as to what the fact in that regard really was. On every occasion when a transfer of property was made to Alta she was present, as she was when any other business was transacted. While the evidence furnishes no direct proof that she exercised undue influence at any particular moment, the record is not wanting in proof of circumstances which might warrant the jury in finding that she had and exercised such influence in acquiring, without any consideration, all the property he had. We do not overlook the claim being made that a contract for support executed by proponent and her father was in compliance with an oral contract made when she acquired the deed to the 515 acres of land. The jury might have disbelieved this when it reflected that proponent's attorney testified that she was not present and took no part in the deed transaction.
In the language of Eglin, a banker who had dealings with the testator, "Alta was always with him and they usually had their minds made up before they came up there, practically." Other witnesses said that she took an active and vigorous part in the leasing of land, and in attempts by attachment to collect the rents. Her attitude was one of continual disparagement, in the presence of testator, of her brother and wife, parents *Page 84
of the wards of contestant. This attitude followed Arthur to the grave. In the case of the wife it went to the extent of saying that she was suffering from a "bad disease". She asserted that Arthur had spent forty-odd thousand dollars of his father's money although there is no proof worthy of the name to establish it.
On one occasion in 1924 after the brother had sold some stock, the proponent in the presence of her father said that from that time forward she was taking charge of the testator's property. The father begged her to be still and not to make so much trouble, appeared nervous, excited and broke into tears. This mental agitation over the actions of the proponent was manifested on a number of occasions. The extent to which Alta went in dealing with her father appears from her own testimony in an incident related by her as follows: "I remember talking about a fly swatter but there was no threatening of suicide. He had an old one, he wanted a better one, I told him he couldn't have it. I said I don't think you should kill dirty flies, why do you want to monkey with the dirty flies, they carry dirt. We had a few arguments, I finally told him he could have it, gave him two or three."
She had access to the father's bank box and declared she had things fixed so Arthur and his family would get none of the testator's property. She ordered her father around and not infrequently used vile language towards him. On one occasion she grabbed money out of his hand and flung it into the face of Kennard who had made a down payment on land that Kennard was-buying. She declared that that deal could wait until the following Monday. Kennard testified "On a couple occasions we were arguing about a deal he just told me to keep still she was boss he had to do what she said. He would say just keep still Joey let her have her own way, you can't outtalk her, she is boss, I have to do what she says."
Incident after incident might be pointed out showing the dominating way in which proponent dealt with her father. It scarcely needs to be said that witnesses for her testified that they observed none of these instances to which reference has been made, but proponent herself does not deny them. On the contrary, she seems to have made an effort to escape testifying at all *Page 85
advising her attorney shortly before the trial she might go to Arizona and in fact went to Chicago.
As we said in the Brogan case, supra, the question of undue influence in a case of this kind cannot be separated from the question of testamentary capacity. See also in Iowa re Estate of Cooper, 200 Iowa 1180, 206 N.W. 95; Lingle v. Lingle, 121 Iowa 133,96 N.W. 708.
If the evidence of proponent's influence be thought insufficient to overcome the will of a man mentally sound, there is evidence in the record from which the jury could have found that the testator was not that.
Dr. Fitzpatrick, a qualified physician and surgeon, was called to the home of testator on May 25, 27, June 1 and June 4, 1934 (the will was made on May 4, 1937), to treat a child of Mrs. Carlson. He observed the testator who he said was very much senile and dominated by his daughter. He was childish and did not know what he was doing. This witness was called to see testator on January 25, 1935. Ensminger was in bed with his clothes on. He then had a marked sclerosis of the blood vessels, was vague in comprehension and slow to answer; he was suffering from marked general arteriosclerosis of the blood vessels in the brain with retarded mental processes. This sclerosis would devitalize his system including his kidneys and central nervous system. Testator was then of unsound mind. His condition would not improve either mentally or physically but was permanent and would become progressively worse. Proponent argues however that this witness admitted on cross-examination that if thereafter the testator transacted business in a normal manner his diagnosis was wrong. The weakness of this argument lies in the fact that the jury could find that he did not transact business normally thereafter.
Dr. Love of Iowa City, a qualified physician and medical member of commissioners of insanity of Johnson county, gave a detailed account of arteriosclerosis and its effects. From this the jury could have found that Dr. Fitzpatrick was right. And as a matter of undisputed fact the death certificate filed by Dr. Rankin who attended Ensminger in his last sickness in July 1939 stated the cause of death to be lobar pneumonia complicated by cardiorenal decompensation. *Page 86
This opinion is already too long to permit an extended statement of the medical testimony but it was all before the jury and from it they may well have reached the conclusion that the testator was not only mentally unsound but because of that condition, peculiarly susceptible to the influence of his aggressive daughter.
We are not unmindful of a tendency to minimize the value of expert testimony in cases of this kind. Our views were aptly stated by Stevens, C.J., in In re Will of Jahn, 195 Iowa 74, 83,189 N.W. 974, 977: "Just what degree of mental impairment disqualifies one from making a valid will is admittedly difficult of scientific or judicial determination. Much has been written upon the subject, and we shall not undertake to add anything to what has been repeatedly said in prior decisions of this court." And it was the conclusion of this court then as it is in the case before us that it was properly a case for the jury. Finding no error in the court's refusal to direct a verdict for the proponent, its judgment is affirmed. — Affirmed.
HALE, C.J., and WENNERSTRUM, GARFIELD, MILLER, OLIVER, BLISS, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430268/ | 1. The matters before referred to are not in dispute. There are some other matters about which there is no dispute. There is no dispute as to the amount due plaintiff on the account, or as to the filing of the mechanics' lien statement 1. MECHANICS' within the statutory time. The material for the LIENS: hog house was purchased from plaintiff by the establish- defendant Peter Hoelzner, and charged to him ment: individually. The building was built for the lands of immediate use and benefit of the defendant wife. Peter. Mrs. Hoelzner testifies that she makes no claim to the building, and never has; that she has always considered it his; that "he said he was building it for himself."
Peter testifies that he figured that the building was his, and he told her so. "Do not know whether it is hers, either — never gave it to her." Peter has been adjudged a bankrupt since the erection of the building, but the hog house was not listed by him as an asset in the bankruptcy proceedings. Plaintiff did not file its claim therein.
The material was furnished between November, 1918, and February, 1920. The account was reduced to a note covering material purchased up to the date of the note. It was dated December 23, 1919, and was for $1,215.70. Material purchased subsequent thereto has been paid for by defendant Peter. The note is signed by Peter alone, his wife having refused to sign it. The note recites that the right of mechanics' lien is not waived or affected by giving the note. At that time, there was about $9,000 against the property. Mrs. Hoelzner did not object to the plaintiff or any of its officers that she was opposed to the erection of the hog house, nor did she mention her opposition to the contractor or the workmen. The defendants Hoelzner testify that the husband told his wife that he was buying the materials on his own credit, and that she need not worry as to any lien. The manager testifies:
"I always considered Mr. Hoelzner good; that is the reason I extended him credit. I had no reason to charge the account to anybody else, so far as I knew, and that was the reason I *Page 27
extended him credit. He always paid his bills. Did not know the property was in his wife's name at that time."
There was already a hog house on the land, 14x20 feet, which Mrs. Hoelzner said was sufficient, and she says that she so told her husband.
There is a dispute as to whether plaintiff was informed of the ownership of the real estate by Mrs. Hoelzner before the delivery of the material. Plaintiff's manager testifies that he was not so informed. The defendant Peter testifies that he told plaintiff's manager that the real estate was in his wife's name, before any material was delivered, and again when the note was given, and Mrs. Hoelzner refused to sign it. We think the weight of the evidence is with defendant as to that; but, the record title being in her, plaintiff was bound to know.
In so far as the question relates to plaintiff's claim for a lien on the real estate, we think the proposition turns on the evidence as to whether there was such consent or acquiescence on the part of the wife by failing to make objection to plaintiff. At this point it will be necessary to refer to the testimony somewhat in detail.
It appears that the husband first conceived the idea of building a hog house and purchasing same from other parties; that they offered to build and complete a hog house for $1,200, and the husband gave them a contract for one, and signed an order therefor; that, when he told his wife of this, she said to him, "Well, you are not going to build no hog house on these premises." They bickered back and forth, and he said he was going to build it, and she told him he was not. She induced him not to do so, and he canceled the order. Later, Peter concluded to build the present hog house. He met Mr. Ausland, plaintiff's manager, who asked him to buy of him, and the husband then gave the order. It was a verbal order, and the husband said nothing to his wife about it. The husband testifies that the reason he did not tell her about it was because she would have done the same as she did before. Three or four weeks after the order was given, Peter hauled the first load of tile, and unloaded them on the premises. Mrs. Hoelzner came out, and asked him what he was going to do, and he told her he was going to build a modern hog house, and she said: *Page 28
"Not on these premises; you can't afford it, and you can't do it. It will jeopardize this property, and you are not going to. This is my property, and I will not have it."
He told her that he had made these arrangements personally, so that the indebtedness would not be against his wife. She went into the house and commenced to cry; but he kept on hauling. She protested every day against the erection of the hog house; but he kept right on. Plaintiff's office man planned the hog house. Peter testifies that he told Ausland, when they first commenced hauling the stuff, that it was going to cost too much; that he had to pay for the stuff, and that he had to pay for it individually; that he objected to the high-priced stuff; that, on various occasions, he told them that, and Ausland and Johnson said to go ahead and build it, and they would give him all the time he wanted. Both defendants testify as to her objections, as before stated, and that he told her that he had made all arrangements to pay for it himself, and that it would not jeopardize her interest. She testifies that she did not know whether he was buying the material on credit or not, — did not know anything about it; that she kept fighting him, begging with him and pleading with him not to build it. Ausland testifies that he is general manager and treasurer of the plaintiff company; that he has known the defendants for a number of years; that he had business with Peter, but none with Mrs. Hoelzner; that the entire account is charged to Peter; that he had no talk with Mrs. Hoelzner with reference to the purchase of the material.
Appellant cites Miller v. Hollingsworth, 33 Iowa 224 (same case, 36 Iowa 163), to the point, as they state it, that, where the husband improves the property of his wife, and secures credit for the material, although the wife has no knowledge of his intention to procure the lumber on credit, nor that he has done so, until after the husband's death, if her estate has been benefited by the improvement, she may be liable in a court of equity. In the first case, after a trial, the court made a finding of facts, and refused to permit a recovery against the wife, the court saying that it was claimed that the contract was made with the husband of defendant as her agent; that his agency cannot be inferred from the marital relation alone; that some previous *Page 29
appointment, or general holding out to the public as agent, or subsequent adoption or ratification of his acts, is essential in order to hold the wife bound thereby; that it merely appears that the wife knew that her husband intended building a house on her land, if he could procure the lumber, but she did not know that he intended procuring the lumber on credit, nor that he had done so, until after the husband's death. Reference is made in the opinion to other cases. It was held that, under the statute in force at that time, such an action must be commenced as an ordinary action upon account, the court saying that it was not intended to hold that defendant was absolutely discharged from liability, and that, if her estate had been benefited, it may be that, in a court of equity, she would be held responsible therefor. Thereafter, another suit was brought, and the case was decided on demurrer to the petition. The petition alleged that the lumber was furnished with the full knowledge and acquiescence of the defendant, and that the real estate was increased in value to the extent of the lumber furnished. A demurrer to the petition was sustained, and the case was reversed because it was admitted that the wife knew all the facts, and that, with full knowledge, she acquiesced in the acts of her husband. The case is reviewed in the note to Milligan v. Alexander, 4 A.L.R. 1022, at 1041. Appellant also cites Rees v. Shepherdson, 95 Iowa 431, andWilverding v. Offineer, 87 Iowa 475. It is claimed for these cases that, where lumber for a woman's house is sold and charged to her husband personally, and it does not appear that she authorized him to contract for it in her name, she is not personally liable therefor, but that plaintiff is entitled to an equitable lien against the property. In the Rees case it was held that the property was subject to a lien, but that there was no personal liability because there was no evidence that appellant authorized her husband to contract for lumber in her name. It was conceded that the plaintiff was entitled to an equitable lien as against the property. Appellant testified as a witness that she gave her husband full control of the property in question, to improve it in such a way as he saw fit, and generally to do with it as he would with his own property. It was said that theWilverding case was controlling.
We think the cases are not in point, as applied to the facts *Page 30
in this case. It is not claimed that the husband made the contract with plaintiff for and on behalf of his wife. He testifies, as does plaintiff's manager, that the materials were sold on the credit of the husband. There is no evidence that she consented to the acts of her husband, nor is there any evidence that she ratified his acts. She was protesting to the last. She testifies that she did not know her husband was obtaining the materials on credit, and knew nothing about it. This is held to be a circumstance tending to negative the thought of agency inPrice v. Seydel, 46 Iowa 696; Young v. Swan, 100 Iowa 323.
In Reese Gabriel Co. v. Cornell, 172 Iowa 734, it was held that the inference that the husband was acting for his wife was not warranted by evidence which, although it showed that he represented her in some matters as to painting, repairing, procuring insurance, and so on, also disclosed that the erection of the house was an enterprise of his own, and that he entered into the contract on his own account. The court said that, if Cornell contracted in his own behalf for the erection of the house, and the contractor dealt with him with that understanding, Mrs. Cornell, the owner of the realty, was not thereby rendered liable to the contractor or subcontractors, even though he might have bound her by contract in her behalf, had he been so disposed.
In the instant case, the most that can be said is that Mrs. Hoelzner failed to object to the plaintiff or its officers. She testifies that she did not know of any reason why she should object; that she had made no contract with plaintiff, and was protesting to her husband, and had been informed by him that he was obtaining the material on his own credit. Ausland testifies that he considered the husband good, and sold the material to him on his credit.
Appellant cites Frank v. Hollands, 81 Iowa 164, to the proposition that, where the wife is present while the improvements are being put upon her land, and makes no objection, plaintiff is entitled to a mechanics' lien on her land. An examination of the Frank case shows that there was more to it than mere failure to object. Under the facts of that case, improvements on her land were contracted for by her husband, with the knowledge and consent of the wife, and she permitted the erection of such improvement without objection. *Page 31
As to her failure to object, it is said in the Milligan case, supra, at 1038, that several of the decisions relating to the evidential significance of this fact have proceeded upon the broad ground that it does not, of itself, warrant the conclusion that the husband was acting as her agent (citing Burdick v.Moulton, 53 Iowa 761, and numerous other cases).
In Halliwell Cement Co. v. Elser, 156 Mo. App. 291, it is said that the mere fact that the wife had knowledge of the construction of the building by her husband on her property, does not, of itself, necessarily establish the agency of her husband, with authority to charge such property with a lien for material used thereon. To the same point, see Rust-Owen Lbr. Co. v. Holt,60 Neb. 80 (82 N.W. 112).
In Wadsworth v. Hodge, 88 Ala. 500 (7 So. 194), it is said that, where the credit is given solely to the husband, he alone is bound, although it may appear that the wife knew that the building or improvements were in process of erection on her land, and said nothing.
In Copeland v. Kehoe, 67 Ala. 594, cited in the Milligan case, supra, at 1038, it is said that it would be a harsh rule that would imply, from her mere silence in reference to her title, or from her failure to dissent from the contract of her husband, an approval of it and her intention to bind her estate, and the payment of compensation which he had promised. Her estate, under the operation of such a rule, would be restored to the common-law dominion of the husband, etc. It is said in the note that it is an open question whether the argument thus advanced is as conclusive as the Alabama court assumes, and it refers to page 1035 of the note, where cases are cited which hold that the agency may be proved, not only by direct evidence, but also by testimony concerning the acts and conduct of the parties (citingBissell v. Lewis, 56 Iowa 231). It was further said in that note that it is obvious that most of the descriptions of testimony which are examined on this point may be regarded in two different lights, — that is to say, either as elements indicative of the existence of an agency already constituted by the wife, or as elements tending to prove a ratification or adoption of acts which previously were not binding upon her; but that it is frequently impossible to ascertain from the language of the courts *Page 32
whether they were considering the claimant's remedial rights from the former of these points of view or from the latter, or, indeed, whether their attention was adequately directed to the consideration that the evidence presented was susceptible of being discussed under distinct aspects.
It would seem that, since Mrs. Hoelzner did not know the circumstances, and that the materials were sold on the credit of her husband, and the other circumstances, her failure to object to the plaintiff should not be considered too strongly against her. It would seem that she did all she could, unless she had secured an injunction against the plaintiff, to prevent it from forcing upon her an expensive hog house that she did not want, and, as she claims, did not need. The question had already provoked dissension in the family. If the plaintiff can force a bill of lumber on her of practically $2,000, others could do the same thing, and plaster liens on her property to such an extent that she might lose it all.
The note to the Milligan case covers many points which might be discussed in reference to the wife's consent, ratification, her knowledge, whether credit was given to the husband alone, estoppel, and so on.
Without further discussion, we are of the opinion that the evidence is not sufficient to justify a holding that the husband was the agent for his wife, or that she consented to or acquiesced in or ratified his acts so that plaintiff is entitled to a lien on her realty. As sustaining our views, see, in addition to the cases before cited, Redman v. Williamson, 2 Iowa 488; Monroe v. West, 12 Iowa 119; Wilkins v. Litchfield, 69 Iowa 465; Getty v. Tramel, 67 Iowa 288; Hoag v. Hay, 103 Iowa 291.
Appellee also cites Poe v. Ekert, 102 Iowa 361, as holding that, where a husband agrees with his wife to erect improvements on her land and to pay for the same, one selling material to the husband on his credit, and without intent to charge the wife thereby, cannot enforce an equitable lien against the land.
2. It is contended by appellant that, even though it is not entitled to a lien on the realty, it is entitled to a lien on the building. The record is that the plaintiff filed an amendment to *Page 33
2. MECHANICS' the petition, praying, in addition to the relief LIENS: asked in its original petition, that an establish- equitable lien be established on the property, ment: lien and particularly against and upon the said hog on house; also alleging that, the improvement being improvement permanent, it increased the valuation of the only. real estate, to the benefit of Mrs. Hoelzner. Defendants filed a motion to strike the amendment, on the ground that it set up a new cause of action. This motion was not then ruled upon, but in the final decree it was sustained. Under the circumstances, we think this was no more than a finding by the trial court that plaintiff was not entitled to a lien on either the realty or the building. We are inclined to think that the amendment should have been allowed to remain; but we are not disposed to reverse on that ground. Appellant's theory seems to be, and it so alleges, that the hog house was a permanent structure, and inured to the benefit of the owner. On this theory, plaintiff's prayer for a lien on the realty would include the building as a part of it, even though plaintiff would not be entitled to all the relief asked. The statement for mechanics' lien asks a lien upon the hog house, including the land upon which the same is situated. We think the pleadings, which also asked for general equitable relief, were broad enough to cover the question as to the building alone.
Section 3089, Code of 1897, provides, in substance, that every person who furnishes material for any building by virtue of any contract with the owner, his agent, etc., shall have a lien on such building and upon the land belonging to the owner, etc.
Section 3090 provides that the entire land upon which any such building is situated, shall be subject to all liens created by this chapter to the extent of the interest therein of the person for whose benefit such things were furnished.
Section 3096 defines "owner," and reads, in part, that every person for whose use or benefit any building is made, having the capacity to contract, shall be included in the word "owner."
Under this, we have held that the statute extends the definition of the term "owner" so as to include persons whose relation to the property is such as that they would not ordinarily be held to come within the meaning of the term, and is applicable to one having less than an absolute and unqualified title to *Page 34
the property; that it means any person for whose benefit any building or other improvement is made. Janes v. Osborne, 108 Iowa 409; Getchell v. Peterson, 124 Iowa 599; Webster City SteelRadiator Co. v. Chamberlain, 137 Iowa 717; Knapp v. Greenwood,83 Iowa 1.
Section 3090, Code of 1897, also provides for a lien on leasehold interest, and that forfeiture of the lease shall not forfeit or impair the lien upon the improvements, but that the same may be sold to satisfy the lien, and be moved away by the purchaser within 30 days.
In Lane v. Snow, 66 Iowa 544, it was held that, under the statutes, a right to a lien upon the improvements may exist without any contract with the owner of the fee, but by contract with the owner of the improvements. In the instant case, the husband was not a tenant; but the wife does not claim to be the owner of the building. The contract was made with the husband. In the Lane case, the plaintiff was claiming a lien only on the improvement. The owner of the land was not a party, and his rights were not determined. The question was whether a person who wrongfully makes improvements upon the land of another can defeat a mechanics' lien upon the improvement by showing that he had no right to enter upon the land. See, also, Smith v. St. Paul F. M. Ins. Co., 106 Iowa 224, where it was held that the interest of an equitable owner of land may be subjected to a mechanics' lien, and that, where one in possession of land to which he has no title, erects a building thereon, it will be subject to mechanics' lien for material used in constructing it.
On the other hand, appellees contend that the right of removal of a building to enforce a mechanics' lien depends upon the fact as to whether it is so far an independent structure as to be capable of being removed without materially injuring or destroying that which would remain. On this proposition they citeGetchell v. Allen, 34 Iowa 559; O'Brien v. Pettis, 42 Iowa 293;Neilson v. Iowa Eastern R. Co., 44 Iowa 71; Bear v. B., C.R. M.R. Co., 48 Iowa 619, 632, 633; Tower v. Moore, 104 Iowa 345;Conrad v. Starr, 50 Iowa 470, 482; Jessup v. Stone, 13 Wis. 466. We shall not review all the cases. Some of them involve the question of priority between a claimed lien and the *Page 35
lien of a mortgage. Some of them were rendered under statutes somewhat different, but similar to the present statutes. Getchellv. Allen, O'Brien v. Pettis, and Bear v. B., C.R. M.R. Co.,
supra, were decided under sections of the statute which are now a part of Section 3095, and which provided that the lien shall attach to the buildings in preference to any prior lien or incumbrance or mortgage upon the land, and that any person enforcing such lien may have the building sold, and the purchaser may remove the same within a reasonable time. In the O'Brien
case, it was held that the right to a lien under such statutes depends upon the question whether the improvement is so far an independent structure as to be capable of removal without materially injuring what would remain. In the Bear case, stone piers were constructed in place of wooden piles covered by the mortgage, and it was said that, when so placed in the railroad, they became a part of it, as the third story in the case ofGetchell v. Allen became a part of the building, and attached to it; that they could not be removed; and that plaintiff's lien could not be enforced.
In the instant case, there is no question of priority of plaintiff's claim over a mortgage. The writer is inclined to the view that, under the circumstances of this case, it is very doubtful whether plaintiff is entitled to a lien on the building and the right to sell and remove the same, and is strongly inclined to sustain the holding of the trial court. While it is true that the hog house is an independent structure, and it, with foundation, cement floor, etc., could be entirely removed, and leave the property of the wife as it was before the improvement was made, still the materials were furnished by plaintiff, knowing that the husband, with whom they contracted, was not the owner of the land; he had no lease; he had and claimed no equitable interest in the land, and was not in possession, any more than was the owner; it was forced upon the owner, against her will; the building is a permanent structure, and became a part of the real estate. Green v. Saxton, 196 Iowa 1086; Leach v.Minick, 106 Iowa 437; Curtis v. Broadwell, 66 Iowa 662; Miller v.Seal, 71 Iowa 392.
To entitle plaintiff to remove the building, it must be found that the building can be removed without substantial injury to *Page 36
the structure. Green v. Saxton, supra; Tower v. Moore, 104 Iowa 345, 347.
In the Tower case, it was held that, where there is no finding that the building can be removed without material injury to the security of the earlier lien holder, the land must be sold and the purchase price paid first, in payment of the prior incumbrance. That was a contest between the mechanics' lien claimant and a prior incumbrancer. There was such a finding in that case. Not so here. On the contrary, the trial court found specifically that the hog house was so built as to become a part of the realty, and was not capable of being removed without irreparable injury and damages to the premises upon which the same is located.
In Luce v. Curtis, 77 Iowa 347, the controversy was between the lien holder and the owner. That the question as to whether the building can be sold separately, with the right to remove, is a question of fact, and that there is a discretion in the court, see Green v. Saxton, supra, and the other cases cited in connection therewith. Section 3095, Code of 1897. There is no lien further than is given by the statute. Conrad v. Starr,50 Iowa 470, 479.
The record title to the land was in Mrs. Hoelzner, and appellant was chargeable with full knowledge, before any of the materials were furnished. Appellant engaged in the transaction in the full light of the facts, and could have protected itself.Kiene v. Hodge, 90 Iowa 212, 217.
Of course, it is possible to remove any building, even a ten-story brick, with stone foundations ten feet deep, and place the property in the same condition as before. I do not think the statute contemplates a removal under such circumstances. Neither do I think it contemplates a removal under the facts of this case. The construction of the building is such that in all probability it cannot be moved as could a wooden structure, — it will probably have to be torn down. The ventilator system was furnished by plaintiff, but we are unable to determine from the statement of account that plaintiff furnished the stove heating system. If the building is torn down or moved, it would be likely to injure or destroy the heating plant, to the prejudice of whoever put it in. The owner was doubtless put to some inconvenience by having workmen and material on the premises *Page 37
during the construction of the hog house, and the same will be true in case the building is torn down, to remove it. All this against her protest. They were really trespassers, so far as she is concerned, and yet all forced on her, and she was deprived to some extent of the control of her own property.
As I have said, I would affirm; but, since Mrs. Hoelzner testifies that she makes no claim to the building, and has always considered it as belonging to her husband, I yield somewhat reluctantly to the force of numbers. The decree will be reversed to this extent: that plaintiff will be given a lien on the building, with the right to remove it or sell it, and the right of removal in the purchaser, provided that plaintiff or the purchaser shall, within 30 days after such removal, put the owner's premises in the same and as good condition as before the building of the hog house, and give bond in a penalty to be fixed by the court, conditioned that this will be so done, or, if not done, that the owner may do so at her own expense, and recover the cost thereof on the bond.
The decree of the district court is modified as indicated, and the cause remanded for a decree in harmony with this opinion. —Reversed in part.
ARTHUR, C.J., and EVANS, STEVENS, FAVILLE, De GRAFF, and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430357/ | I. The accident out of which appellee's cause of action for damages arose, occurred between 6 and 7 o'clock on the night of November 2, 1923. While he was proceeding northward on a public highway, approaching the town of Wyoming from the south in a lumber wagon drawn by a span of horses, his wagon was run into by appellant, who was driving a Ford sedan. The collision frightened the team, causing it to become detached from the wagon and to run away. At the time of the accident, appellee was seated on the spring seat placed on top of the side boards on the wagon box, resting his feet on the end gate. The team dragged him over the end gate, inflicting severe permanent injuries to his head. The night was dark and cloudy. The highway, at the point of the accident, was approximately 24 feet in width, somewhat elevated, with ditches on either side. There was a bridge a short distance south of the place of the accident, the elevation of the floor of which was five feet above the surface of the highway at the point where appellee claims the accident occurred.
The front left side of the automobile struck the wagon just back of the right front wheel, breaking the glass of the left front light and destroying the bulb. The only other injury to the car was to loosen the hub cap and bend the V-shaped connection between the front wheels. Appellant later drove the automobile from the scene of the accident. When the automobile struck the wagon, the right front wheel of the automobile was somewhere between 6 and 8 inches from the east shoulder of the highway. The testimony of appellee tended to show that he was proceeding on the right side of the center of the highway; that, just before the accident, he observed the light of the automobile shining on the ground and on his horses' feet. Observing this, he turned his team to the right, so as to give a wider space for *Page 1182
the automobile to pass on the left. The testimony of appellant and of two companions who occupied the rear seat of the automobile tended to show that the decline in the roadway immediately north of the bridge threw the rays of the lights onto the ground, so that objects in the highway could be seen only for a short distance; that, as soon as the automobile reached the level part of the roadway and the lights shone on the wagon, appellant immediately set his brakes and turned to the right. All of the witnesses agree that the wagon, at the time of the collision, was east of the center of the highway, but standing slightly northeast and southwest. The cause was tried by appellant upon the theory that the collision and consequent injuries to appellee were due wholly to unavoidable accident, and that the evidence was wholly insufficient to charge appellant with any negligence on his part which was the proximate cause of the injuries complained of.
Two grounds of negligence were submitted by the court to the jury: (a) That the automobile was being operated by appellant at a careless and reckless rate of speed; and (b) that he attempted to pass the wagon on the right-hand side of the road, in violation of the statute.
The direct evidence as to the speed of the automobile was confined to the testimony of appellant and his two companions. They all testified that the car passed over the bridge at about 15 miles per hour, and could not have been going 1. MOTOR much faster when appellant discovered the VEHICLES: presence of the wagon in the highway. The tracks negligence: of the two vehicles were distinct in the highway excessive the morning following the accident. Appellant speed: testified that the wheels of his car slid about persuasive 20 feet after the brakes were set. The testimony circum- of the witnesses for appellee tended to show stances. that it was possibly 30 feet. The wagon tongue, which was strengthened by iron braces on either side, was broken, and it is contended by appellee that this was caused by the collision. Appellant contends that the tongue was broken when the horses swung to the left and ran away. The slight injury to the automobile is a circumstance tending to show that the car was moving with little force at the time it struck the wagon. The distance in which a Ford sedan may be stopped, when traveling at the rate of 15 or 20 miles per hour, was a question of fact for *Page 1183
the jury. It was for the jury to say from the evidence whether the automobile was being driven at an excessive rate of speed. Direct testimony is often less persuasive than circumstances. Upon appellant's theory, the lights of his automobile were much restricted by the decline in the highway, and he could see objects but a short distance to the north. The statute imposes the duty upon every operator of a motor vehicle on the public highway to drive the same in a careful and prudent manner, and at a rate of speed that will not injure the property of another or the life or limb of any person. Section 5028, Code of 1924. This issue, we think, was properly submitted to the jury.
II. According to the testimony of appellee, the accident occurred at a point 15 or 16 rods north of the bridge, and according to the testimony of appellant, 7 or 8 rods north thereof. The conflict in the evidence on this 2. MOTOR point presented a question of fact for the jury. VEHICLES: If the accident occurred 15 rods north of the negligence: bridge, the jury might well have found that the passing road was practically level for a distance of at on left least 150 feet south thereof. The greater part side. of the decline in the highway was near the bridge. The jury might, therefore, well have found that appellant did see, or should have seen, the wagon in the highway for a distance of at least 75, and possibly 100, feet. Appellant testified that the lights on his automobile were in good condition, and that he could clearly see objects 75 feet in front of him. There was evidence also from which the jury might have found that the wagon was at all times east of the center of the road, and that the angle at which it stood after the accident was slight. The evidence on behalf of appellee also tended to show that there was ample room for appellant to have passed the wagon in safety on the left side. The explanation given by the appellant for the presence of the automobile on the right side of the wagon was that, when he discovered it in the road, he saw that it was proceeding northeast, and he thought he had more room on that side to stop his car than on the left. The right front wheel of the car was very near the shoulder of the grade when the collision occurred. The evidence on behalf of appellant was that, when he left the scene of the accident, he passed the wagon on the right side. There was testimony on the part of appellee that the wagon was moved before this was accomplished. *Page 1184
Another automobile coming upon the scene passed the wagon to the left. It is conceded that the wagon was moved somewhat before that occurred, but the mother of the driver of the car testified that there was ample room to pass without moving the wagon.
According to the testimony of an engineer who made measurements, the width of the road 15 rods north of the bridge was 23.3 feet, and the depth of the ditches on either side about 3 or 3 1/2 feet. One witness testified that the track of the automobile on the right side was close to the east bank for a distance of at least 50 feet south. Appellee testified that appellant told him that he turned to the right because the wagon was so near the left side of the road that he thought he could pass on the right.
T.M. Starry, a witness for appellee, testified that Behnke, one of the occupants of the automobile, told him that the cause of the accident was "poor lights and damn fast driving, and I told Mr. Hanold so, too." The witness testified that he thought his remark was hardly as broad as stated by the witness.
No useful purpose will be served by going into the evidence in further detail. We think it was sufficient to justify the submission of both issues to the jury. The evidence as to speed of the automobile was not very strong, but there were circumstances from which an inference might be drawn that the car was moving much faster than shown by the direct testimony of the witnesses. We think the evidence tending to show that appellant attempted to pass the wagon on the right side fully justified the submission of that issue to the jury.
Many errors assigned by counsel go to the sufficiency of the evidence to justify the court in submitting any issue of negligence to the jury. The alleged errors are stated in different forms, so as to present every possible theory of appellant's as to the facts.
III. It is contended by appellant that Paragraphs 4 and 9 of the court's charge to the jury are inconsistent. Instruction 4 submitted the two grounds of negligence already 3. TRIAL: discussed. In Instruction 9, the court told the instruc- jury that the law requires every person tions: operating a motor vehicle on the public highway construction to drive the same in a careful and prudent as a whole. manner, and at a rate of speed that *Page 1185
will not endanger the life or limb of any person. The point urged is that the latter instruction submits additional grounds of negligence, and is not confined strictly, as it should have been, to the question of the speed of the automobile. The court, however, in the same paragraph of the instruction again stated the duty of the driver of an automobile to exercise ordinary care, under the circumstances, respecting the speed. The evident purpose of the latter paragraph of the instruction was to inform the jury that the words "care" and "prudence" referred particularly to the speed of the automobile. The instruction may not be quite as clear as it might have been made, but it is not erroneous. The instructions as a whole must have made it clear to the jury that but two grounds of negligence were submitted to, or to be considered by, them. It is clear that the court did not intend in a simple instruction to submit additional grounds of negligence. If there is any inconsistency in the two instructions, it entirely disappears when the charge is considered as a whole.
IV. The court in the seventh paragraph of its charge instructed the jury that it was the duty of appellee to exercise ordinary care for his own safety, and that a failure to do so would constitute negligence upon his part. The court further in this instruction told the jury that appellee had a right to rely upon those approaching him from the rear to exercise ordinary care. This instruction must be interpreted in connection with the preceding one. In Instruction 6, the jury was told that, to entitle the plaintiff to recover, the burden was on him to show by a preponderance of the evidence that he was himself free from negligence which contributed to the injuries received by him. The instruction further placed the burden upon the plaintiff to prove the grounds of negligence submitted. The instruction is not, as counsel claim, open to the inference that the contributory negligence of the plaintiff was a defense, to be established by the defendant, nor do we think it inferentially or otherwise informed the jury that no duty rested upon appellee to exercise ordinary care for the safety of others using the public highway. When the two instructions are read together, they are sufficiently clear, and could not, in our opinion, have misled the jury.
The exception to Instruction 8 is based upon the theory of *Page 1186
appellant that the evidence wholly failed to show negligence on the part of appellant, or that he attempted to pass the wagon on the wrong side.
V. There is an inconsistency in the allegations of the petition. It is alleged therein that appellee suffered damages in the sum of $15,000. This allegation is followed by allegations as to the actual expenses incurred on account of the accident and loss of time and wages. Immediately preceding the prayer, which is for judgment in the sum of $15,000, is the following:
"He, plaintiff, suggests that he claims for the physical and mental pain suffered by him and for the personal injuries sustained by him, which he alleges to be permanent in nature, and which will continue to affect the plaintiff's mental faculties as well, the sum of $4,550."
The court, in stating the issues, repeated, in substance, the portion of the petition just quoted. In a later instruction, in which the rule or measure of damages is stated, this allegation is entirely ignored; but the items of expense 4. APPEAL AND and loss of wages are recalled, and the jury is ERROR: told in the usual language that there is no harmless fixed or exact rule by which to compute damages error: for pain and suffering, etc. The verdict was for curing $12,550. At the time of ruling on the motion for error by a new trial, the court evidently discovered the remittitur. apparent inconsistency in the petition and in the statement of the issues, and required appellee to remit $4,550 or accept a new trial. The amount was promptly remitted. It is the claim of appellant that the court erred in stating the issues, and that the allegations of the petition limited appellee's recovery in any event to $4,550, and that recovery should not have been permitted in excess of the above amount. It is apparent that the jury allowed the item of $4,550 in full, and $8,000 for all other damages. The court clearly intended Instruction 12 to limit the consideration of the jury to the various items for which recovery could be had, under the issues. The remission, we think, corrected the error. The intention of the jury is plain. No reference to the specific sum should have been made in the statement of the issues. This was, no doubt, an oversight on the part of the court.
VI. Appellant also claims that the verdict is the result of *Page 1187
passion and prejudice induced by the misconduct of counsel for appellee in argument to the jury.
Objection was made to the argument of counsel for appellee to the jury upon the ground that it was improper for counsel to refer to the failure of appellant to drive his car at a rate of speed at which he could stop it within the 5. TRIAL: radius of his lights. The court promptly argument: informed counsel that the argument was improper. figure of Then, or later in the course of the argument, speech. counsel declared that appellant was as negligent as a man would be who fired a high-powered rifle on the highway in the dark, or words to that effect. The court again admonished counsel, and the argument proceeded. Some latitude is allowed counsel for the exercise of his imagination, and in making comparisons and illustrations. Ownership of automobiles has become quite universal, and jurors must be presumed to be quite familiar with their operation and the possibilities of danger arising from a careless operation thereof. The argument complained of was not likely to have inflamed the passions of the jury or to have induced the rendition of a verdict for a large sum. The evidence shows that appellee was, in fact, severely and permanently injured. He had lacerations on the top of his head, and suffered intense headache following the injury. X-rays taken of his head revealed a fracture of the skull, 6. NEW TRIAL extending transversely across the top. This verdict: fracture was approximately five inches from excessive- point to point. He has since had fainting spells ness: and epilepsy, and has been unable to work. Prior $8,000. to the accident, he had an earning capacity of from $200 to $500 per month. He has suffered great pain and discomfort since the injuries. In the treatment of his injuries, a spinal puncture was necessary. He was 46 years of age, weighed about 210 pounds, and was in good health before the accident, but was greatly reduced at the time of trial. The verdict is large, but we cannot say that it was the result of passion and prejudice on the part of the jury and that a new trial should be granted on that ground. The evidence is conflicting on most material points, and we think that the court properly submitted to the jury the issues stated.
Since we find no reversible error in the record, the judgment below is affirmed. — Affirmed.
EVANS, C.J., and De GRAFF and VERMILION, JJ., concur. *Page 1188 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430359/ | We have so frequently expressed ourselves on the general principles applicable to the case before us that there is and can be little or no dispute between the parties as to such rules. The difficulty lies, as is to be expected, in the application of the facts to these rules. We have so many times spoken on this subject that it will be necessary to refer to but a very few of our later decisions, leaving the investigation of others to those who may be interested therein.
[1] As a general proposition it will not be denied that the finding of the industrial commissioner on disputed questions of material fact is conclusive upon this and the district court.
Our views were well expressed by Powers, J., in Shepard v. Carnation Milk Co., 220 Iowa 466, appearing at pages 469, 470,262 N.W. 110, 112, in this language:
"In the consideration of this question, the limitation upon the power of the court in compensation cases must be kept clearly in mind. The purpose of the enactment of such legislation was to avoid litigation, lessen the expense thereof, and afford an efficient and speedy tribunal to determine and award compensation. Flint v. City of Eldon, 191 Iowa 845, 183 N.W. 344. To that end the act provides that, in the absence of fraud, the findings of the industrial commissioner on the facts are conclusive. The act contemplates that all controversy over disputed questions of fact shall end with the findings of the industrial commissioner. Section 1452, Code 1931. It is not the province of the court to review the evidence and determine whether or *Page 121
not it believes that the industrial commissioner reached a correct conclusion on the facts. We may well repeat here what we said in the case of Flint v. City of Eldon, supra, by way of quotation from a New York case (Rhyner v. Hueber Bldg. Co.,171 A.D. 56, 156 N.Y.S. 903):
"`It was the purpose of the legislature to create a tribunal to do rough justice — speedy, summary, informal, untechnical. With this scheme of the legislature we must not interfere; for, if we trench in the slightest degree upon the prerogatives of the commission, one encroachment will breed another, until finally simplicity will give way to complexity, and informality to technicality.'
"The task of the court is to enforce this legislative scheme, not to interfere with it. If, therefore, there is evidence from which the industrial commissioner could have found as he did, the court must not interfere with such findings. Section 1453, Code 1931."
See, also, Brown v. Rath Packing Co., 219 Iowa 9, 257 N.W. 411; Jones v. Eppley Hotels Co., 208 Iowa 1281, 227 N.W. 153; Norman v. City of Chariton, 206 Iowa 790, 221 N.W. 481; Wittmer v. Dexter Mfg. Co., 204 Iowa 180, 214 N.W. 700.
[2] With this brief attention to the rule, we turn to the record to ascertain whether or not there was a conflict in the evidence which entitles the finding of the commissioner to that conclusiveness which our cases announce. The record is quite confused and abounds in medical terms, and medical opinions which seem not always consistent. This is said without any criticism of the doctors who testified, because such is to be expected from the uncertain factors with which they had to deal.
The injured workman was admittedly working for the defendant Continental-Keller Company, which is herein referred to as if it were the sole defendant. There is, as we read the record, no competent testimony establishing the fact that he was in fact injured at the time stated in the complaint, while engaged in work within the scope of his employment. It does appear that prior to the date of the injury he was and had been employed as a shipping clerk. Up to that time he had been in good health except for a previous case of pneumonia suffered some years before, from which he appears to have fully recovered. *Page 122
The claimant testified that on May 22, 1934, her husband came home exhausted and tired, and said that he had had an accident at the store; that he had fallen while loading a rug. Her testimony made his condition appear much more serious than the doctors seem to have discovered at or shortly following that time. According to her, his leg was stiff and very red from the knee to the hip; the cords were stiff and drawn, and the leg generally was very painful. She applied hot water bottles to the leg, and gave aspirin to relieve him. The next morning there was a spot on the thigh, between the knee and the hip, about the size of claimant's hand. Featherson went to work in the morning, but came home between 12 and 1 o'clock, being brought there by one Himmelsher, a truck driver for the company. On his arrival he was "all in." He was put to bed. He said he had been told by the company doctor, Treynor, to come home and keep quiet, and that claimant was to put hot applications on the leg. This was done during the day. Aspirin was given without apparent results. About 9 o'clock in the evening, or shortly thereafter, he complained, grabbed his right side, and said, "The pain shot through here like a knife." Claimant narrated other symptoms of distress not necessary to set out. He complained of "feeling bad all over," and that his lung, leg, and groin were hurting him. He had fever during the day, and was very restless through the ensuing night. The next morning, May 23, 1934, he was stiff and his leg was black and blue, but he insisted on going to work. Dr. Treynor was called that day. He made an examination and told the wife that the leg was stiff and that there was congestion in the right lung. His temperature was 102 degrees. On the recommendation of Dr. Treynor, a Dr. Hanchett was called but, he being busy, Dr. Best appeared about 4 or 5 o'clock in the afternoon, made an examination of the patient, and took his temperature. The doctor came back the next morning, found the limb in the same condition it had been, and said that pneumonia had set in the right lung. The patient was then taken to the hospital, where he remained to the date of his death, June 4, 1934.
Dr. Treynor, differing somewhat from claimant, said that there were not any very definite signs of injury. Featherson complained of pain and stiffness, but examination disclosed no definite evidence of injury. There was tenderness on pressure. After the examination the doctor made a memorandum that the workman *Page 123
had a sprain of the posterior thigh muscle of the right leg, and possibly contusion of the sciatic nerve. The patient's condition appeared to this witness to be the same on the next day. He was not then treated for pneumonia by this doctor, who said that he did not know the patient had it.
Dr. Best, in his examinations made on the 24th and 25th days of May, found a temperature of 101 or 102 degrees, shortness of breath, pain in the chest, and coughing up of a slightly rusty sputum. A small area about the size of the palm of the hand, and the type of breathing, disclosed to him early symptoms of pneumonia. The next day he found conditions about the same, but difficult breathing, with a few coarse rales which are typical of lobar pneumonia. Dr. Best's attention was centered upon the condition of the lungs more than the leg. After the patient was sent to the hospital Dr. Best continued to treat him until death. A hospital chart was kept of the patient. This chart appears in the record as exhibit No. 13. Dr. Best, who diagnosed the cause of death as lobar pneumonia, said this is an infectious process which might be caused by numerous organisms, or might be caused by traumatism. He offered no opinion as to what caused the pneumonia in the instant case. When asked if he found any connection between traumatism and pneumonia, his answer was: "It is entirely a matter of opinion. I believe it would be impossible to state that a blow on the leg definitely produced the pneumonia." He then went on at length to discuss embolism (a blocking of blood vessels by a small clot). He testified that an embolus might lodge in the lung, and, when asked what the effect would be if it did lodge there, he qualified by saying that there are two kinds of embolism, — noninfected and infected. He then further stated that lobar pneumonia could be caused only by an infected embolus. This, too, he qualified by saying that it might produce pneumonia, but not necessarily lobar pneumonia. When asked whether Featherson's condition was caused by an embolus, he said it might have been but that he observed no symptoms of embolism in the case. The cause of the injured man's death was given by this doctor as lobar pneumonia. On cross-examination, when asked, "What is your opinion as to whether or not it was an embolism that caused his death?" he answered, "I don't think it did." As to whether embolism could have been a contributing cause of death, he said it might but he could not be definite. *Page 124
Dr. Smith, a physician from Lincoln, Nebraska, qualifying as an expert, gave his conclusions based upon a study of the hospital chart, exhibit No. 13. From such reading he concluded that Featherson suffered from embolism, and that lobar pneumonia was the final cause of death. On cross-examination this witness said that when he spoke of embolism he meant an infectious embolism.
Dr. MacQuiddy, a physician from Omaha, Nebraska, after qualifying, expressed the view that if an embolus from the right thigh were to lodge in the lung it might be a producing cause of lobar pneumonia.
The writer of this opinion confesses to much uncertainty as to what this witness actually intended to convey by his testimony with reference to lobar pneumonia and its causes. After an involved and indefinite discussion of the causes and effects of embolism, he went on to say that he did not know how one could tell, between the different kinds of pneumonia, whether it was produced by embolism or other causes "unless a post mortem were held and the embolus found. I don't know how you would differentiate between the two." After expressing himself in a way that would seem to imply support of the claimant's theory, on cross-examination, when taken over the ground again with reference to the various types of pneumonia and pneumonic processes, he said that in his opinion Featherson did not have true lobar pneumonia, and continued: "We are only asked for opinions. I am giving my opinion. There was no post mortem made or anything like that. It is one man's opinion against another's. Dr. Best could not swear that this thing was the embolic thing. I could not swear absolutely to that." Other testimony of like character appears in his cross-examination.
Dr. Kleyle, a practitioner from Omaha, called by defendant, expressed an opinion based on examination of the hospital chart. He had familiarity with eases involving lobar pneumonia. "There is some similarity between the symptoms of embolism and lobar pneumonia," he said. After an extensive review of what he found on the chart, he was asked whether he had an opinion as to the cause of the man's death. He answered that it was lobar pneumonia. On further examination he testified that it was his conviction that on May 23, 1934, Featherson already had pneumonia. It was his opinion that lobar pneumonia could not follow *Page 125
an embolus, which, with other features of his testimony, tends to much uncertainty as to just what his opinion was.
In addition to this, is the testimony of a Council Bluffs physician, Dr. Bellinger, that the only way to determine what this man died of would have been a post mortem.
This and much more that could be quoted from the testimony, if it did not create a conflict which was for the commissioner to decide, at least left the cause of this man's death in a state of confusion, uncertainty, and guesswork. Without setting forth the testimony, there is sufficient in the record to justify, if not compel, this finding which appears in the decision of the commissioner:
"It is apparent that in a considerable period subsequent to the crisis occurring there was no thought of connecting death with trauma as a proximate cause."
It is to be recalled that our decisions have placed upon the claimant the burden of proof to establish her claim. Stevens, J., in Susich v. Norwood-White Coal Co., 207 Iowa 1129, at p. 1132,224 N.W. 86, 87, stated the rule in this language:
"Likewise, the rule as to the burden of proof in cases of this character is well settled by our prior decisions. It is elementary that, to entitle the claimant to compensation, the matters necessary to be shown by him must be proven by a preponderance of the evidence. Clearly, a causal connection between the injury and the possible inhalation of bad air must be based upon something more substantial that a mere possibility. On this point, see Flint v. City of Eldon, 191 Iowa 845,183 N.W. 344; Hinrichs v. Davenport Locomotive Works, 203 Iowa 1395,214 N.W. 585; Guthrie v. Iowa Gas Elec. Co., 200 Iowa 150,204 N.W. 225."
The same doctrine was announced by Kindig, J., in somewhat different language, in Jones v. Eppley Hotels Co., 208 Iowa 1281,1283, 227 N.W. 153, 154, wherein it is said:
"To prove this essential fact, the burden is upon the claimant, appellee." [Citing a number of cases.]
See, also, Smith v. Soldiers Sailors Mem. Hosp., 210 Iowa 691,231 N.W. 490. *Page 126
Claimant argues that the findings of fact by the industrial commissioner are not conclusive and binding upon the district court unless the facts support the order made and there is sufficient competent evidence in the record to warrant the findings. She cites Petersen v. Corno Mills Co., 216 Iowa 894,249 N.W. 408; Tunnicliff v. Bettendorf, 204 Iowa 168,214 N.W. 516; Rish v. Iowa Portland Cement Co., 186 Iowa 443,170 N.W. 532. These cases do no more than to announce the rules laid down in the cases already cited. The Peterson case goes perhaps a little further in its pronouncement, in this: It holds that where there is no dispute in the facts and the commissioner erroneously applies the law, then the courts may re-examine and set aside the findings of the commissioner.
The second division of defendant's argument is that the court erred in holding that the death of the decedent was traceable directly to the injury complained of, and also was not caused by any other condition. As incidental to or connected with this assignment of error, defendant argues that the court erred in finding that any injury had occurred in the course of decedent's employment. These assignments of error are of necessity largely argumentative and are predicated upon deductions drawn from the record. They are disposed of by what has been said with reference to the powers of the commissioner on disputed facts.
Defendant likewise argues that claimant's case with reference to the injury having happened in the course of the employment is based entirely upon hearsay and incompetent evidence, with no direct testimony whatsoever to sustain it. We agree with this contention, but it is not necessary to analyze in detail the record in this regard. It is sufficient to say that no one appeared to testify that he witnessed the accident, and the only basis for the claim that it happened in the service of the defendant is testimony of claimant and others as to what Featherson said.
Claimant, among other contentions which she urges in support of the ruling of the trial court, says that the proof required to establish the relation of cause and effect between an injury and the subsequent ailment must be such as to take the case out of the realm of conjecture, but, if the evidence furnishes a reasonable basis for inference that the injury was the cause of what followed, this is sufficient. *Page 127
Defendant concedes that claimant's case may not be based wholly in the realm of speculation, conjecture, and surmise.
From a reading and re-reading of the abstract in this case, we find that claimant's cause rests entirely upon the unsubstantial foundation which both parties agree is not sufficient to sustain the claim. In this situation defendant has the best of the argument for the reason already pointed out that the burden was on the claimant and not on the defendant.
We hold that the commissioner was right on this point, and that the trial court was in error in holding otherwise.
Other questions are argued, but they inhere in what has gone before and are decided thereby so far as the facts of this case are concerned.
We have not overlooked the statement of claimant that the decision of the commissioner on its face evidences a degree of bias which made it impossible for him to properly weigh the evidence, but we do not deem it necessary nor profitable to enter that field.
[3] We have found from a most careful scrutiny of the record that there was a fair conflict in the evidence on which the decision of the commissioner was final; that the causes of Featherson's death were uncertain and speculative; and that the claimant has failed to sustain the burden which the law imposes upon her.
It follows that the trial court was in error, and its ruling is reversed. — Reversed.
ANDERSON, DONEGAN, HAMILTON, KINTZINGER, RICHARDS, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430360/ | I. Appellant alleges that he entered into a written contract with the appellees to furnish the material and labor and construct a drainage ditch in Drainage District No. 157 in Kossuth County; that he has completed the said ditch; that the same has been accepted by the board of supervisors; and that there is a balance of $6,271.50 due on the contract. He asks for an order commanding the county auditor to issue a warrant on the county treasurer of said county for said balance.
The board of supervisors filed a separate answer, in which they admit Paragraphs 1, 2, 3, 4, 5, and 6 of the petition. This admission is not very enlightening, because the petition is not divided into numbered paragraphs, and it is difficult to determine what admissions are made by this statement in the answer. This matter, however, in view of the turn the case took, may not be material. Appellees deny that appellant encountered quicksand in carrying out his contract; admit that a certain purported contract, a substantially correct copy of which is attached to the petition, was signed, according to the purport of said copy; admit that the engineer appointed by the board inspected the work, and made monthly estimates; but deny that said estimates were approved by them. They admit that the estimates were paid by warrants, but say that the warrants issued were far in excess of the contract, and that said excess was paid without authority, and in violation of law, and that, therefore, the warrants are wholly void. They allege that the "quicksand" clause contained in the contract was never rightfully or with authority or legally inserted in said contract. They deny the existence of any power or authority or valid obligation whereby the funds of the district could lawfully be used in paying "actual cost plus 15%" for work done through quicksand.
In their cross-petition against appellant, appellees ask to recover the alleged excess, amounting to $8,288.65, already paid appellant, and allege, as basis therefor, that the contract in *Page 214
controversy was drawn by a clerk in the office of the auditor of Kossuth County, without authority of law, and without the knowledge or authority of the appellee board; that there was inserted in said contract a clause stating that, if "quicksand and rock are encountered, contractor to receive actual cost plus 15%." They say that this clause was wholly illegal; that it was inserted without authority of law, and without the authority or knowledge of the appellee board; that it is in violation of the statutes of the state, and is fraudulent and void as to these appellees. They allege that the total amount appellant was legally entitled to receive for material furnished and work done was $15,232.63, and that he was paid $23,521.28; and they seek to recover the difference between these two sums. They allege that the bid submitted by appellant, which was accepted by the board, contained no clause or provision entitling appellant to receive "cost plus 15%" for any work, whether done in quicksand, rock, or otherwise; and that such clause was never agreed upon, and was never mutually intended between the parties, but was inserted by mistake in drawing the contract. They seek to have the contract reformed by striking out the words "quicksand and rock are encountered, contractor to receive actual cost plus 15%."
By way of two amendments to their answer, they replead matters already stated herein, and set out the public advertisements for bids. They state that appellant filed a bid thereunder, which was accepted by the board, and that it was therefore ordered by the board that the contract be entered into, as authorized by law; that the contract was drawn by the deputy auditor or drainage clerk of Kossuth County, without the knowledge or authority of the board of supervisors; and that said clerk, with appellant, caused said clause to be inserted in said contract; that the contract, when so executed, was signed by the county auditor and the chairman of the board of supervisors. They allege that the engineer in charge, in issuing the estimates based upon the provision of the contract in dispute, issued estimates far in excess of what appellant was entitled to receive, and that the county auditor of said county, without authority or knowledge of the board of supervisors, issued drainage warrants for such illegal and excessive sum.
Appellant, by way of amendment to his petition, says that *Page 215
the contract sued on herein provided that, "should there be any difficulty between the parties hereto as to the construction of any of the provisions of this agreement, including the plans and specifications hereinbefore made, the part thereof relating to the work to be done, such differences should be referred to the engineer employed by the party of the first part in charge of the work, and his decision shall be final for both parties;" that he relied on the contract, and proceeded with the work; that, as the work progressed, the engineer examined the same and determined that part of the work was of the character that would come within the provision of the contract which called for payment on the basis of 15 per cent plus; that the monthly estimates of the engineer, from time to time, were based thereon, and appellant was paid 80 per cent, as provided by law, on said estimate; that appellant relied on the construction so placed by the engineer, and spent a large amount of time and labor, as set forth in the petition; and that appellees are now estopped from denying the correctness of the construction and the determination fixed by the engineer.
Appellant, by way of reply to the cross-petition of appellees, says that his bid, as submitted, contained a clause which read, "over-depth scheduled and quicksand and rock specifications same as my contract in 5-87;" that the specifications on Contract 5-87 were made a part of that contract, and Contract 5-87 contained the following provision: "Where quicksand or solid rock are encountered * * * the contractor shall receive actual cost plus 15% for all labor and material used." He says also that the contract entered into in this matter was based upon the bid thus submitted by appellant, and with the full and complete understanding of the parties.
Part of the original answer that we have set out was Division 2 thereof. It is stipulated by the parties and ordered by the court that a separate trial be had on the issues that are raised in Division 2 of the original answer, and in the amendment to the answer and cross-petition filed September 3, 1923. The first question discussed relates to the validity of the provision in said contract controlling payment where quicksand or rock is encountered.
The attack on the validity of this clause of the contract comes from two angles. The first involves wholly a fact question; *Page 216
the second, a law question. Under the first of these propositions, it is the claim of appellees that, at the time the bid was submitted, it contained no provision whatever covering this matter, and it is intimated that the same was placed therein after the contract was signed. It is claimed that appellees never consented, agreed, or understood that said clause was to be contained in said contract. Hence they say that said clause was never a part of the contract actually made.
The board of supervisors of Kossuth County consisted of three members, at the time of the controversy herein. Anderson, who signed the contract, was chairman of the board, and the other two members were Tjaden and Hopkins. Anderson was dead at the time of the trial, in September, 1924. The contract was let in August, 1919. Hopkins testified that he was a member of the board when the contract was let. He says that the bids were read off by the secretary. As to the quicksand and rock clause, he says:
"I have no recollection of that. It might have been read, for all that, but I have no recollection."
He does not remember whether the contract was presented to the board and considered by it or not. He says that he never examined the contract while he was a member of the board, and that he did not know that the contract contained a clause about sand and rock. On cross-examination, he says:
"The bid [of appellant] may have been read with reference to quicksand. I do not recall."
He was then asked this question:
"Q. You might have known what was written in the contract? A. Well, at the time I might. I might have known that the engineer placed the construction upon that, that, when quicksand was encountered, the contractor was to be paid cost, plus 15 per cent. I won't say that I didn't know that. The monthly estimates filed by the engineer are sometimes examined by the board of supervisors."
Tjaden testified that he was a member of the board of supervisors in 1919. His testimony is similar to that of Hopkins.
The bid of appellant was introduced in evidence, and it contains the clause, "over-depth schedule and quicksand and rock specifications the same as my contract in Drain 5-87." The contract in 5-87 was introduced, which made a part of it the *Page 217
specifications in that drainage district. It was provided in said specifications that, "where quicksand or solid rock are encountered * * * the contractor shall receive actual cost plus 15% for all labor and material used." At the time appellant filed his bid, no reference was made, either in notice for bids or in resolutions for specifications, to the question of payment in case quicksand or rock should be encountered.
The bid of appellant was accepted and contract ordered by the board in the forenoon. It was one of the requirements that the contract should be made within ten days after acceptance of the bid. Immediately after the contract was awarded, Wendt, the auditor, and appellant retired to the auditor's office, where Wendt dictated the contract, and Bertha Johnson, deputy auditor, who was a stenographer, wrote it. Anderson, the chairman of the board, was in the auditor's office, waiting to sign the contract on behalf of the board. It was after 12 o'clock noon when the contract was completed. When they neared the end of the contract, appellant called attention to the fact that it was to contain the same provisions with reference to sand and rock as his contract in Drain 5-87. The auditor, who had appellant's bid before him, went to the records in 5-87, and from them dictated the sand and rock provision now found in the contract herein. Appellant, the county auditor, and the chairman of the board then signed it.
Evidence on the claim of appellees that appellant's bid, at the time it was filed, contained no reference whatever to "actual cost plus 15%" for construction where sand or rock was encountered, is wholly wanting, except for the bid itself, which is before us. It shows that the part referring to this matter was interlined, and in different ink. Appellant testifies that he made out his bid the night before, and that, when he went to the courthouse to file it, he re-read it, discovered the omission, and then inserted it, before filing the bid. The evidence in relation thereto is undisputed, and the conduct and acts of all the parties concerned tend to corroborate him in this respect; and we feel that the evidence is wholly insufficient to sustain the claim of appellees that the bid was changed after it was filed.
It is equally true that the evidence is wholly insufficient to sustain the claim that it was not intended and understood between these parties that the disputed clause was to be a part of *Page 218
the contract. It therefore follows that, as to the fact situation which it is claimed should avoid this clause of the contract, appellees have wholly failed to sustain the burden of proof resting on them.
II. The second question is more troublesome. Briefly stated, it is urged that the board of supervisors was wholly without power or authority, under the law, to insert in this contract the provision for payment in case work was done through quicksand or rock. As heretofore noted, the specifications in this drainage district contained no provisions with relation to this matter; neither was there any reference made to it in the advertisements for bids. A case involving a contract in almost identical terms with the contract under consideration, so far as the sand clause is concerned, is Busch v. Joint Drainage District, 198 Iowa 398, where many cases are cited holding that a contract containing this clause is valid; yet that case is hardly applicable to the case before us. First, the Busch case is an action brought by property owners whose land is to be assessed; and secondly, the specifications in that drainage district, together with the advertisements for bids, provided for such a clause. These differences between the Busch case and the instant case are such that it cannot be said that the Busch case is controlling in the case at bar. In the Busch case, all bidders bid on the same proposition. This was not true in the case at bar.
The whole theory of awarding public contracts to the lowest bidder, after advertising therefor, is to protect the interest of the property owners, and to create competition between bidders, to the end that the work may be done as cheaply as possible. In order that such bidders shall be able to compete on equal terms, there must be established in advance a fixed basis for comparison of bids, so that all may bid on the same thing. Therefore, the advertisements for bids, or at least the specifications prepared in advance, should be definite and explicit, to the end that each bidder may prepare his bids intelligently on a common basis.Hannan v. Board of Education, 25 Okla. 732 (30 L.R.A. [N.S.] 214, and note); Chippewa Bridge Co. v. City of Durand, 122 Wis. 85
(99 N.W. 603). In Diamond v. City of Mankato, 89 Minn. 48 (61 L.R.A. 448), the Supreme Court of Minnesota said:
"The law is well settled that where, as in this case, municipal *Page 219
authorities can only let a contract for public work to the lowest responsible bidder, the proposals and specifications therefor must be so framed as to permit free and full competition. Nor can they enter into a contract with the best bidder containing substantial provisions beneficial to him not included in or contemplated in the terms and specifications upon which bids were invited. The contract must be the contract offered to the lowest responsible bidder by advertisement [citing cases]. This rule should be strictly enforced by the courts; for, if the lowest bidder may, by an arrangement with the municipal authorities, have incorporated into his formal contract new provisions beneficial to him, or have onerous ones excluded therefrom which were in the specifications upon which bids were invited, it would emasculate the whole system of competitive bidding. It would also lead to abuses, by opening wide the door of opportunity to award the contract to a favorite or generous contractor, — generous at the cost of the taxpayer. To secure such a result, it would only be necessary to make the terms and specifications upon which bids were invited burdensome for bidders, and for the favored one to make his bid upon the secret understanding that such terms would be modified in making the formal contract."
Additional stipulations contained in municipal contracts which were not mentioned in the published notice for bidding, and which constitute a material change, and therefore a departure from the basis of bidding, invalidate the contract. Inge v. Board ofPublic Works, 135 Ala. 187 (93 Am. St. 20), in which case it is said:
"`To require the bids upon one basis and award the contract upon another would, in practical effect, be an abandonment of all bids' [citing Wickwire v. City of Elkhart (Ind.), 43 N.E. 216;People v. Board of Improvement, 43 N.Y. 227; Shaw v. City ofTrenton, 49 N.J. Law 339 (12 A. 902)]. * * * To permit such in the awarding of public contracts by public officers would be to open wide the door for favoritism, and defeat the thing which the law intended to safeguard in requiring the contracts to be let upon bids made on advertised specifications. It is unimportant whether the additional stipulation contained in the contract awarded to one who is not the lowest responsible bidder be in itself an advantage to the city or not; if it constitutes a material change, and, therefore, a departure from the *Page 220
basis of the bidding, and becomes an element or consideration in the determination of who is the lowest and best bidder, it will invalidate the contract entered into."
See, also, Bolton v. Gilleran, 105 Cal. 244 (38 P. 881), andMcBrian v. City of Grand Rapids, 56 Mich. 95 (22 N.W. 206).
It is a well known fact that, in certain parts of this state, in the laying of tile or the digging of open ditches, quicksand is often encountered, and every bidder is confronted with this fact. If this condition is provided for in the notice and specifications, as it was in the Busch case, then all bidders stand on an equal footing; but in the case at bar, it was not provided for. It is evident that appellant had an advantage over the other bidders, who did not cover this question in their bids. This was prejudicial to the drainage district. His bid was not responsive to the call, and therefore will not warrant this clause in the contract; hence, the board had no authority, under the law, to inject into said contract the clause of which complaint is made.
Under the stipulation and agreement of the parties herein, we are limited in our discussion to the lone questions above discussed. We do not have before us the questions of whether or not appellee board is estopped from claiming that the contract was ultra vires, whether or not appellant is entitled to recover on a quantum meruit, or whether or not, under the facts alleged, recovery can be had by the board. All of these questions are withheld from our consideration by agreement of the parties, and hence we express no opinion on any of them.
The decree of the district court reads, in part, as follows:
"It is ordered, adjudged, and decreed that the contract between the plaintiff and the defendant board of supervisors for the construction of the improvement in Drainage District No. 157 * * * be and the same is hereby reformed by striking and eliminating from paragraph numbered `three' thereof the following words and figures, to wit: `Quicksand and rock are encountered, contractor to receive actual cost plus 15%.' And it is found, ordered, adjudged, and decreed that the said words and figures so eliminated are not and never were legally a part of said contract, and that the said contract shall be construed, enforced, and performed as if said words and figures were never contained therein."
From the wording of this part of the decree we are unable *Page 221
to say whether the court held as it did because the evidence and the facts introduced show that such clause never was a part of the actual agreement, or whether it so ruled because, as a matter of law, the board had no right to make such contract. Our holding is that the court was not warranted in finding, under the facts and evidence, that the sand clause was not a part of the agreement actually made between these parties, but we hold, as a matter of law, that the quicksand provision is void because of want of authority on the part of the board to make such an agreement. — Affirmed.
De GRAFF, C.J., and EVANS and STEVENS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031275/ | NUMBER 13-16-00360-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
AMANDA ANN GUTIERREZ, Appellant,
v.
ROGELIO P. FLORES, Appellee.
____________________________________________________________
On appeal from the 117th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam
Appellant, Amanda Ann Gutierrez, appealed a judgment entered by the 117th
District Court of Nueces County, Texas. On July 28, 2016, the Clerk of this Court notified
appellant, in accordance with Texas Rule of Appellate Procedure 42.3(c), that we would
dismiss this appeal unless the $205.00 filing fee was paid. See TEX. R. APP. P. 42.3(c).
Appellant has not responded to the notice from the Clerk or paid the $205.00 filing fee.
See TEX. R. APP. P. 5, 12.1(b).
The Court, having considered the documents on file and appellant’s failure to pay
the filing fee, is of the opinion that the appeal should be dismissed. See id. 42.3(b),(c).
Accordingly, the appeal is DISMISSED for want of prosecution.
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/3430361/ | The mortgagor is one Meyeran. In the year 1921, Meyeran resided in Nobles County, Minnesota, which borders on the Iowa line. On the 9th day of December, 1921, he gave a chattel mortgage on certain of his property, which, on December 12, 1921, was duly filed for record in Nobles County, Minnesota, as provided by the laws of said state. This mortgage was transferred to appellant. Thereafter, and on or about the 1st day of March, 1922, the said Meyeran moved to a farm in Lyon County, Iowa, about 9 miles distant from his former residence in Minnesota. On or about the 19th day of December, *Page 591
1922, Meyeran gave to the appellee Nagle a chattel mortgage on certain property, to secure an indebtedness, which mortgage was duly filed with the county recorder of Lyon County, Iowa, on December 29, 1922. Said mortgage covered in large part the identical property described in the appellant's mortgage. The appellant's mortgage was filed in the office of the county recorder of Lyon County on the 21st day of December, 1922. The sheriff was about to sell the said property under said Nagle mortgage when this action was brought to restrain said sale.
I. Appellant's chattel mortgage was duly recorded, in accordance with the laws of the state of Minnesota. The property was removed to the state of Iowa, and the mortgagor thereafter gave a chattel mortgage thereon to the appellee. In the early case of Smith Co. v. McLean, 24 Iowa 322, we said:
"* * * a chattel mortgage valid under the law of the state where executed will be so held by the courts of a sister state to which the property may be removed."
In Simms v. McKee Stimson, 25 Iowa 341, we said:
"The main question raised in the record was determined by this court in the case of Smith v. McLean, 24 Iowa 322. We held in that case that a mortgage of personal property, executed and recorded in another state in accordance with the laws thereof (the property when mortgaged being within such state), has the same force and effect to bind the property when removed to this state, and will be enforced here, as under the laws of the state where it was executed. This doctrine must be considered the settled rule in this state."
This has been the established law of this state since 1868. It is the rule recognized by the great weight of authority. In Goodrich on Conflict of Laws 356, Section 151, the rule is thus stated:
"The validity of a chattel mortgage is determined by the law of the situs of the property at the time of the mortgage. Rights created under a valid mortgage will be recognized in another state, as against the mortgagor or his creditors or subsequent purchasers from him."
In commenting upon this general statement, the author says:
"The typical situation is that in which property in one state is made the subject to a chattel mortgage executed there, *Page 592
a transaction valid where made, and the mortgagee's rights are preserved by compliance with whatever local statutes there are as to recording the mortgage. Then the mortgagor takes the property into another state, where it is seized by one of his creditors or sold to a third party; neither creditor nor purchaser having knowledge of the mortgagee's rights. There is no record of the mortgage in the second state. The general consensus of judicial opinion in this situation is that the rights of the mortgagee are to be protected."
In support of this rule the author cites the following authorities:
Wray Bros. v. White Auto Co., 155 Ark. 153 (244 S.W. 18); Lorenzen Cases on Conflict of Laws (2d Ed.) 543; Smith Co. v.McLean, 24 Iowa 322; Langworthy v. Little, 12 Cush. (Mass.) 109;Farmers Merch. St. Bank v. Sutherlin, 93 Neb. 707
(141 N.W. 827, 46 L.R.A. [N.S.] 95, Ann. Cas. 1914B 1250); Yund v. FirstNat. Bank, 14 Wyo. 81 (82 P. 6). Contra, Allison v. Teeters,176 Mich. 216 (142 N.W. 340). See collection of cases in 64 L.R.A. 356, note; 35 L.R.A. (N.S.) 386, note; L.R.A. 1917D 942, note.
The American Law Institute, in Restatement No. 3 of the Conflict of Laws, Section 287, states the rule thus:
"If a chattel is validly mortgaged in accordance with the law of the state where it is situated at the time of the execution of the mortgage, and is then taken into another state, the mortgagee's interest in the chattel is recognized in the second state."
It may be conceded that there are a few states that do not recognize this rule. We are, however, not disposed to depart from the rule long since announced in Smith Co. v. McLean, supra, which has the sanction of the greater weight of judicial authority.
In 11 Corpus Juris 424, Section 33, it is said:
"The great weight of authority is to the effect that a chattel mortgage, properly executed and recorded according to the law of the place where the mortgage is executed and the property is located, will, if valid there, be held valid even as against creditors and purchasers in good faith in another state to which the property is removed by the mortgagor, unless there *Page 593
is some statute in that state to the contrary, or unless the transaction contravenes the settled law or policy of the forum."
Many cases are cited in support of the text.
We hold that the lien of appellant's mortgage was senior and superior to that of the appellee Nagle, after the property was removed to this state, and was not lost merely by the fact of such removal.
II. Appellee contends that the rule of comity by which the validity of a chattel mortgage duly executed and recorded in one state is recognized in another has no application where the mortgaged property is removed from the state where the mortgage was given, with the knowledge and consent of the mortgagee, and where the mortgagee fails to use diligence to recover it. We are not called upon in this case to determine whether the lien of a mortgage duly executed and recorded in a foreign state will or will not be recognized in this state, where the mortgagee consents to the removal of the property from the state where the mortgage was executed. There is no sufficient evidence in the record that would sustain a finding that the mortgagee gave consent to the removal of the property from the state of Minnesota. The mere fact that he knew that the mortgagor removed from the farm where he was living in Minnesota, to a farm a few miles distant in Iowa, would not deprive the mortgagee of the right to enforce such mortgage. Consent, even if sufficient to defeat the lien (which we do not determine), was not established in this case.
We are not disposed to acquiesce in appellee's contention that, where a mortgagee has knowledge that the mortgagor has removed the property from the state where the mortgage was given, to a foreign state, he is required "to exercise diligence to recover the property." The legislature has not enacted any statute in regard to such a situation, and there is no requirement of our present law that such a mortgage shall be recorded, in order to preserve the lien in this state. In the instant case, the mortgagor removed front Minnesota to Iowa on the first of March, and the appellant recorded its mortgage in Iowa in the following December. There is evidence — which, however, is in conflict — tending to show that the appellee had actual notice of appellant's mortgage before he took his mortgage. It may be that, under certain circumstances, *Page 594
a mortgagee in a foreign state would be estopped to claim that his mortgage should be recognized in this state, but the record in this case fails to disclose a situation that would justify the court in denying to appellant the lien of its mortgage, as against the subsequent mortgage of the appellee.
Our conclusion is that the judgment of the district court must be — Reversed.
EVANS, C.J., and STEVENS, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430366/ | The bankrupt transferred his bank account to the name of his wife, the defendant, and afterward deposited his money in that account. By understanding with her, he signed her name to checks (though she signed some herself). He attended to the business. He was a farmer. Defendant says that, about a year before the transfer, she knew he was going to have trouble with Meyners over a land deal; that her husband said he was going to put the money in her name, to keep Meyners from getting it. Checks on this account were drawn, to the amount of $1,055.98, and paid, leaving on deposit a balance of $403.39. There is no controversy over this balance, but the plaintiff claims that he is entitled to judgment for the full amount of the deposit, regardless of the checks paid. The ground of his claim is that the transfer of the bank account was for the purpose of defrauding creditors, and absolutely void.
$192.50 was paid for a husking machine, and $400 for attorneys' fees for preparing and filing bankruptcy petition. Other sums were paid to merchants for clothes, family necessities, and merchandise. Sums were paid out for hail and fire insurance premiums, for threshing, and for help in the family. Other sums were paid apparently to merchants. The purpose for which some of the checks were drawn is not shown. No claim is made that any of the payments were made to persons to whom the bankrupt was under no obligation, or that any payments were for purposes improper or fraudulent in themselves.
The transfer of the bank account under these circumstances could not be sustained against an attack by existing creditors. The funds in the wife's name would, at the suit of such a creditor, be declared to be held in trust for the husband, to the extent necessary for the payment of his debts. If the transfer had not been made, and the account had remained in the name of the bankrupt, he could, and for all that is shown to the contrary would, have continued his business and made the same deposits *Page 310
and the same payments that were made. By becoming indebted he did not forfeit his right to continue in business, to purchase property for use in conducting it, to incur obligations for insurance, labor, or other expenses, and to pay for them and defray the expenses of his family. Defendant and other members of the family did not forfeit their right to support. It was not a fraud on his creditors for the debtor to continue in business. It is not shown that any creditor was prejudiced or defrauded by the manner in which the bank account was kept. Creditors had no lien upon the bank account, whether it was in the name of one or the other. Until they took some action which would effectuate a charge upon the funds, the defendant and her husband might use them; though, of course, she could not, without liability, put them to a use that would of itself be a fraud upon creditors. It is not shown that any of the expenditures were made in the perpetration of a purpose to defraud any creditor, or that any creditor was defrauded or prejudiced by any of the payments. The transfer of the account to the name of the wife for the purpose of defrauding creditors would not render fraudulent payments made from it in good faith in payment of just obligations. As stated in Clements v. Moore, 6 Wall. (U.S.) 299, 312:
"The cardinal principle in all such cases is that the property of the debtor shall not be diverted from the payment of his debts to the injury of his creditors, by means of the fraud."
We are of the opinion that the plaintiff has not shown himself entitled to recover, except for the balance on hand at the time of the filing of the petition in bankruptcy. See Davidson v.Dwyer, 62 Iowa 332; Johnston v. Jickling, 141 Iowa 444; OrientalBank v. Haskins, 3 Metc. (Mass.) 332 (37 Am. Dec. 140); Hutchinsv. Sprague, 4 N.H. 469 (17 Am. Dec. 439); Leqve v. Stoppel,64 Minn. 74 (66 N.W. 208, 212).
The judgment is affirmed. — Affirmed.
De GRAFF, C.J., and EVANS and ALBERT, JJ., concur. *Page 311 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430367/ | The petition in this case was filed in October, 1930. The plaintiff is the wife of B.I. Salinger, Jr. For brevity, he will be referred to as "Salinger" and his wife will be referred to as the "plaintiff." The defendant General Motors Acceptance Corporation will be referred to as the "acceptance corporation" and the defendant General Exchange Insurance Corporation will be referred to as the "insurance company."
Generally speaking, it is alleged in the petition that the plaintiff is the owner of a certain LaSalle sedan automobile, purchased from the Cadillac Motor Car Company of Chicago on the deferred payment plan, a copy of the contract being attached to the petition. The contract is a conditional sales contract and specifies the purchase price of the automobile at $3,041.75. There was a deferred balance of $2,089.00 to be paid in monthly installments of $175.00. The contract then provides, among other things:
"1. Title to said property shall not pass to the purchaser until said amount is fully paid in cash. * * *
"6. Time is of the essence of this contract, and if the purchaser default in complying with the terms hereof, or the seller deems the property in danger of misuse or confiscation, the seller *Page 1023
or any sheriff or other officer of the law may take immediate possession of said property without demand (possession after default being unlawful), including any equipment or accessories thereto; and for this purpose the seller may enter upon the premises where said property may be and remove same. The seller may resell said property, so retaken, at public or private sale, without demand for performance, with or without notice to the purchaser (if given, notice by mail to address below being sufficient), with or without having such property at the place of sale, and upon such terms and in such manner as the seller may determine; the seller may bid at any public sale. From the proceeds of any such sale, the seller shall deduct all expenses for retaking, repairing and selling such property, including a reasonable attorney's fee. The balance thereof shall be applied to the amount due; any surplus shall be paid over to the purchaser; in case of deficiency the purchaser shall pay the same with interest and the purchaser does hereby confess judgment in the amount of such deficiency. Seller may take possession of any other property in the above described motor vehicle at the time of repossession and hold the same temporarily for the purchaser without liability on the part of the seller."
It is alleged in the petition that at the time of bringing the suit the plaintiff had invested in the car $1,652.00. It is further alleged that the interest of the Cadillac Motor Car Company had been assigned to the acceptance corporation; that on August 2, 1929, the defendant insurance company entered into a contract of insurance with the plaintiff against loss by theft, which insurance company policy is attached to the plaintiff's petition, marked "Exhibit B." This contract of insurance insured against fire and lightning, theft, robbery and pilferage. It is further alleged that on or about January 10, 1930, said automobile was stolen in the city of Chicago and that the value of the machine at the time of the loss was $2,286.00. It is further alleged, upon information and belief, that all of the stock of the insurance company which issued the policy was owned and controlled by the acceptance corporation.
On January 3, 1931, the acceptance corporation answered, admitting the execution of the conditional sales contract and admitting that at the time of the theft of the automobile, it was the owner and holder of said conditional sales contract. In a *Page 1024
separate count, it answers that after the theft of the automobile, the automobile was recovered on the 15th day of March, 1930, and thereafter, by an agreement on the part of the plaintiff, the car was taken to the Schroeder Auto Top and Glass Company of Chicago for repairs; that the car was there repaired and placed in as good as or better mechanical condition than it was in at the time said car was stolen; that the plaintiff agreed with the insurance company that if said insurance company would pay to the said Schroeder Auto Top and Glass Company the sum of $193.60, being the amount of the cost of repairing said automobile, the plaintiff would release the said insurance company in full; that said bill was paid and that the plaintiff did enter into and sign a waiver and agreement of settlement, releasing the said insurance company from any and all claims of every kind and character against it upon said policy of theft insurance.
It is also alleged in said answer that after the payment of said repair bill, the acceptance corporation did repossess the said automobile and sold it for an amount of $84.00 less than the then outstanding balance due and owing to the acceptance corporation, under the terms of the conditional sales contract. It is also alleged that at the time said automobile was repossessed, the plaintiff was in arrears on four payments or installments, due under said conditional sales contract under which said car was purchased, said payments being in the amount of $175.00 each, payable one each month.
On January 3, 1931, the insurance company filed its answer by way of a general denial, and specifically pleaded the recovery of the car after it had been stolen, and the agreement that the car should be taken for repairs, as previously stated; that the plaintiff agreed that if the insurance company would pay the repair bill of $193.60, the plaintiff would and did release the insurance company of all claims of whatsoever kind or character against it, and that thereafter said plaintiff did enter into a written release, releasing the insurance company in full for any loss or claim against it, and directed the insurance company to pay the repair company the repair bill; that, therefore, the insurance company is not liable to the plaintiff in any sum whatsoever.
On February 2, 1931, the plaintiff filed a reply to the answer *Page 1025
of the insurance company, containing among other things a denial that the plaintiff signed the release and waiver set up by the insurance company, but admitting that an instrument was signed, the purposes of which were to authorize the insurance company to have the repair made to the car. It is claimed that the car was never returned to the plaintiff for inspection. In another count, the plaintiff replies to the answers filed by both defendant corporations, in substance, that the entire capital stock of the insurance company is owned by the General Motors Acceptance Corporation and that said insurance company is controlled by the acceptance corporation. It is charged that the instrument claimed by the insurance company to be a release was obtained by fraud.
On March 30, 1931, plaintiff filed an amendment to its reply, alleging that the acceptance corporation organized under the laws of the state of Delaware has control of the insurance company, save and except qualifying shares held by directors; that the said acceptance corporation dominates and controls its subsidiaries, including the insurance company. It is also alleged that the acceptance corporation, by taking possession of the automobile, has converted the same, the reasonable value of said automobile being $2,286.00.
For the purposes of this case, only a very brief outline of the facts need be set out. The conditional sales contract with the Cadillac Motor Car Company was dated August 17, 1929. The purchase price was $3,041.75, of which $952.75 was paid down, partly in cash and partly an allowance for an old car, leaving a deferred balance due under the contract of $2,089.00. This was to have been paid in installments of $175.00 each, payable on the 20th of each succeeding month, the last installment being for $164.00.
After the execution of this conditional sales contract, it was sold and assigned by the Cadillac Motor Car Company to the acceptance corporation, the assignment being in writing and appearing on the back of the conditional sales contract. At the time of the sale of the car, the insurance policy in question was issued by the insurance company. It provides, among other things, to insure the dealer, Cadillac Motor Car Company; the purchaser, the plaintiff; and the acceptance corporation, as their interests might appear, from loss by theft, pilferage or fire. *Page 1026
Salinger was also named as one of the assured, he having signed the conditional sales contract. The entire transaction, so far as the plaintiff is concerned, was handled by Salinger. In fact, for most of the time involved, the plaintiff was in California. Following the making of the contract and the delivery of the car, Salinger, acting for the plaintiff, trailed in the payments of the installments, none of which were paid when due. The last payment made on the car was the one due November 20, 1929, which installment was paid December 19, 1929. The payments due December 20, 1929, and January 20, 1930, were never paid, nor were any payments subsequently due ever made. On January 10, 1930, the car was stolen. At that time, the plaintiff was in default on the contract. The insurance company undertook to locate the car, and succeeded March 15, 1930. It was found in a garage in Chicago. A Mr. Haase, as an adjuster for the insurance company, inspected and took possession of the car. The insurance company elected to repair and recondition the car, to which Salinger agreed. There is a slight dispute between the parties as to just what was said in connection with said agreement, but Salinger himself, on rebuttal, testified in reference to his conversation with Haase, when Haase offered to recondition the car, saying:
"I said to him more than that I had no right to ask if they would put it in the shape and satisfy me it was in such shape, that was all I wanted."
The car was repaired and placed in first-class condition, all accessories which had been stolen or damaged were replaced, and the repair bill was paid. These repairs were completed on April 4, 1930, and on April 5, 1930, while the car was still in the repair shop, and before the same had been delivered to the insurance company, the car was taken by the acceptance corporation, under its conditional sales contract. The plaintiff at that time was in default more than $700.00 on the conditional sales contract, and some of the payments were more than three months in default, notwithstanding the record shows repeated oral and written notices had been sent in an effort to obtain the payment of the installments due. The acceptance corporation sold the car under the terms of the conditional sales contract and *Page 1027
received $1,522.00 therefor, leaving a balance still due the acceptance corporation under the terms of the sale of $42.00.
It will be noted that in this suit, while the acceptance corporation was made a party defendant, no relief was asked against it, and as to it the cause was subsequently dismissed. The jury returned a verdict against the insurance company for $1,600.00.
Twenty-one errors are relied upon for reversal. We shall not find it necessary to consider all of them.
I. By instruction No. 6, the court undertook to direct the jury in reference to the measure of damages in the event the plaintiff should recover. The policy of insurance provided that in case of loss, the company should be liable in "an amount not exceeding the actual cash value of the property insured at the time of the loss or damage." Notwithstanding this language of the contract, the court instructed the jury that in arriving at the damages, they should consider the following elements:
"1. The reasonable cash value of the car at the time it was stolen.
"2. Evidence as to the purchase price of the car.
"3. The use the car had had.
"4. Its value to the plaintiff as a means of conveyance.
"5. Its depreciation in value.
"6. All other facts and circumstances bearing upon the value of the plaintiff's interest in the car."
Manifestly, the court's instructions in this regard were erroneous under the definite terms of liability specified in the insurance contract.
Without unduly extending this opinion, we may say, by way of illustration, that the value of the car to the plaintiff as a means of conveyance was wholly an immaterial inquiry in this particular case. The definite policy provision which was the written contract between the parties not only provided that the measure of damages should be "an amount not exceeding the actual cash value of the property insured at the time of loss or damage," but also provided that the recovery should be "without compensation for loss of use."
The court was clearly bound by the provisions of the insurance policy sued upon, and it was therefore erroneous to tell *Page 1028
the jury they could consider as an element of damage the value of the car to the plaintiff as a means of conveyance.
"All other facts and circumstances bearing upon the value of the plaintiff's interest in the car" is such a broad, vague, and indefinite term as to be both misleading and confusing. No one can tell what elements might be considered by the jury under these broad, vague terms. This statement of an element of damages permits the jury to let their imaginations run upon fanciful elements of damage upon which the appellant would be required to pay by virtue of a general verdict. The only proper thing for the jury to do was to fix the actual cash value of the car.
Many other errors are relied upon for reversal, but we deem it unnecessary to discuss them in this opinion.
Presumably, the mistakes of the past will not be committed in a new trial.
It follows that the case must be, and is, reversed. — Reversed.
WAGNER, C.J., and ALBERT, KINDIG, De GRAFF, and STEVENS, JJ., concur.
EVANS, J., dissents.
FAVILLE, J., took no part in this case. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430368/ | I am constrained to dissent from the foregoing opinion. For the purpose of the dissent, a somewhat fuller statement of the case must be made. To avoid repetition, it will be more convenient for me to refer to the husband as plaintiff, rather than as an agent of the plaintiff. Passing for the moment earlier events, the plaintiff was the owner of a LaSalle automobile, which was insured against loss by theft or fire by the defendant insurance company. On January 10, 1930, the automobile was stolen and notification was given. On March 15 following, the stolen automobile was recovered by the insurance company. It was found in bad condition, but was nevertheless supposed by the insurer to be capable of repair and restoration to its former condition. The adjuster of the insurance company proposed to repair and return. The plaintiff agreed to such course, provided the restored condition was satisfactory *Page 1029
when restored to him. Later, a "Loss and Damage Agreement" was signed by the plaintiff. By reason of other events, the insurance company never did conform to the purported agreement made with the plaintiff and never did return the car to the plaintiff. The plaintiff, therefore, has sued upon the policy for the value of his interest in the car. The reason why the insurance company did not return or deliver the car to the plaintiff furnishes the complexities of the case.
The plaintiff bought this automobile on August 19, 1929, from the Cadillac Motor Car Company in Chicago. He bargained for the car at a price slightly in excess of $3,000.00, which amount was to include certain financing expenses and the cost of theft-and-fire insurance for the period of one year. A down payment was made by the plaintiff of $952.75. For the unpaid balance, eleven notes for $175.00 each and one note for $164.00 were executed, the first of them payable on September 20, 1929, and the others successively payable on the 20th day of each successive month. The notes thus executed to the dealer were immediately transferred by the dealer to the General Motors Acceptance Corporation. The function of the latter company was to finance the transaction. An insurance policy was issued by the defendant insurance company for a maximum of $2,286.00. The policy purported to insure the dealer, the acceptance corporation, and the plaintiff, as the interest of each might appear. The premium was charged to plaintiff. The first three installments due respectively September 20, October 20 and November 20 were paid by the plaintiff. On January 10, when the car was stolen, the plaintiff was in default upon the payment due December 20. He made no payment thereafter during the period of the car's disappearance. The deferred payments were secured by a conditional sales contract, which entitled the acceptance corporation to seize and sell the car at any time upon default. The measure of the interest of the acceptance corporation in the insurance was the amount of the deferred payments. During the period of disappearance of the car, the acceptance corporation notified the plaintiff that the loss of the car would not excuse him from prompt payment of the installments as they fell due, and demanded payment accordingly. For some reason, the defendant insurance company notified the plaintiff to the same effect andadvised payment. On March 17, the insurance adjuster, *Page 1030
Haase, had a conversation with the plaintiff, looking to a repair of the car and a return to the plaintiff in as good condition as before. This the plaintiff agreed to provisionally. In brief, he reserved the right to inspect the car after its return to him and that he find it satisfactory. In the latter part of March, Haase brought to the plaintiff a blank form of a so-called "Loss and Damage Agreement" and requested him to sign the same. The wife was at that time in California, and it became necessary for the husband to send the paper to her for signature. In due time, the plaintiff returned the paper to Haase by mail, duly signed by husband and wife. This was on April 5. It also appears that some time after the recovery of the car, Haase caused it to be taken to the repair shop of the Schroeder Auto Top and Glass Company for the purpose of repair. The repair bill amounted to $193.00, which was paid at some time by the insurance company. The excuse claimed by the insurance company for failure to return the car to the plaintiff was that the acceptance corporation took possession of the car under its conditional sales contract and sold the same in satisfaction of its debt, the sale being made to the Cadillac Motor Car Company, the dealer from which it was bought. The insurance company justifies such surrender on its part on the ground of the alleged superior right of the acceptance corporation to the possession of the same. The defendant predicates, upon the agreement between the plaintiff and Haase, a plea of accord and satisfaction. The question arises, what effect Haase's surrender of the possession and his failure to return the car had upon the defense of accord and satisfaction. He was not bound to surrender the possession upon mere request and without legal process. In that sense, his failure to perform the agreement relied upon, of accord and satisfaction, was voluntary. The surrender to the acceptance corporation was made on April 5, the very date on which the alleged written agreement was received from the plaintiff. The car was promptly sold to the Cadillac Motor Car Company at private sale. All this was done without notice to, or knowledge of, the plaintiff. The plaintiff pleaded that the seizure by the acceptance corporation and the surrender by the insurance company and the purchase by the Cadillac Motor Car Company were all done collusively and fraudulently as to him and to his injury. He pleaded that as to him in this transaction, *Page 1031
the purported three corporations were not separate entities, but were one and the same entity, representing one and the same ownership and interest. It is conceded by defendant, subject to objections, that the three Chicago Corporations are mere subsidiaries of the General Motors Corporation of New York; that the General Motors Corporation owns all the stock of the Cadillac Motor Car Company; that it likewise caused the organization of the General Motors Acceptance Corporation; that it owns all its stock and furnishes all its capital; that the General Motors Acceptance Corporation organized the General Exchange Insurance Corporation and that it owns all its stock; that all these corporations, including the parent corporation, have interlocking directorates; and that the managing officers of one are directors of the other. The purpose of the organization of the General Exchange Insurance Corporation was to insure cars, the purchase of which is financed by the acceptance corporation. These corporations have their separate functions, and are created as a part of the plan of organization of a big business. Such subsidiary organizations are legitimate within the scope of their proper functions. Nevertheless, when two or more of them deal with a third party who is ignorant of their community of interest, they may induce a reliance by such third party which would amount to a fraud upon him. In this case, we may assume that the acceptance corporation under its conditional bill of sale had very arbitrary rights; that it had the right to seize and to sell even at private sale. Perhaps it had a right to sell without notice. But in any event, it was bound to use its arbitrary power in good faith, if at all, and with reasonable diligence to the end that the reasonable value of the property might be realized in the sale. It became for the time being a trustee. It could not become a buyer at its own private sale. In this case, the acceptance corporation took the property without the knowledge of the debtor and sold it, so to speak, to a member of its own family — the Cadillac Motor Car Company. It was sold for $1542.00. The witness of the plaintiff testified that it was worth $2500.00 at the time it was stolen. The witness of the defendant testified that it was worth $1,675.00 at the time of its sale. It was actually resold by the Cadillac Motor Car Company for $1875.00. These are some of the facts which figure in the record. They may have no other legal bearing than on the *Page 1032
question whether they furnish an excuse to the insurance company for having failed to perform the alleged agreement of accord and satisfaction. If they do not, then the defendant has failed to prove performance by itself of the alleged agreement upon which it relies as a defense.
In the light of the foregoing preliminary statement, I proceed to a consideration of the assignment of error upon which reversal is based.
The assigned error is that the court erred in stating the measure of damages and that the verdict rendered of $1600.00 was excessive. Appellant's brief presents a computation to the effect that the maximum amount that could, in any event, be found for the plaintiff was $722.00. This computation was based upon the theory that in the distribution of the insurance fund, the acceptance corporation would be entitled to take the full amount of its debt, $1564.00, leaving a balance to the plaintiff of $722.00. On the other hand, the evidence shows conclusively that, if the plaintiff was entitled to recover at all, he was entitled to recover exactly $722.00, plus interest. I concede that the court did err in stating the measure of damages. The error, however, was curable by a remittitur. The jury found that the plaintiff was entitled to recover. Upon the record there could be no legitimate dispute as to the amount of the recovery. The court could have properly instructed the jury that the amount of recovery, if any, must be the sum of $722.00, with interest thereon. In such a case, our uniform practice is to give the appellee the opportunity to cure the error by remittitur. Such is the course that ought to be followed here. The case should be affirmed in the first instance, on condition that the plaintiff remit. If he remit, he should have his judgment affirmed to the extent of $722.00 and interest.
In my judgment, there is no other sustainable assignment of error in the record. *Page 1033 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4073476/ | PD-1318-15
PD-1318-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/18/2015 1:26:48 PM
Accepted 11/18/2015 3:43:04 PM
ABEL ACOSTA
CLERK
NO.
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS AT AUSTIN, TEXAS
STEVEN DELEON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
CAUSE NUMBER 03-13-00202-CR
ON APPEAL FROM THE 421“ DISTRICT COURT
OF CALDWELL COUNTY, TEXAS
CAUSE NUMBER 2012-166
HONORABLE TODD BLOMERTH, PRESIDING
KERRISA CHELKOWSKI
The Law Office of Kerrisa Chelkowski
1017 South Alamo
San Antonio, Texas 78210
Telephone: (210) 228-9393
November 18, 2015 Telecopier: (210) 226-7540
State Bar No. 24034373
ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED
IDENTIFICATION OF THE PARTIES
TRIAL JUDGE:
Honorable Todd Blornerth, 4215‘ District Court
FOR THE STATE OF TEXAS:
Luke Alsobrook — Counsel at Trial
Bar No. 24059374
Katy Alsobrook — Counsel at Trial and on Appeal
Bar No. 24051894
Assistant District Attorneys for Caldwell County
201 E. San Antonio Street
Lockhait, Texas 78644
TELEPHONE: (512) 398-1811
Lisa McMinn — Counsel on Appeal
Bar No. 13803300
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
TELEPHONE: (512) 463-5724
APPELLANT/PETITIONER’S COUNSEL:
Kevin Collins — Counsel at Trial
Bar No. 04625510
600 Navarro, Suite 250
San Antonio, Texas 78205
TELEPHONE: (210) 223-9480
J eb Lock — Counsel at Trial
Bar No. 24050943
1011 South Alamo
San Antonio, Texas 78210
TELEPHONE: (210) 602-9646
Kerrisa Chelkowski — Counsel on Appeal
Bar No. 24034373
1017 South Alamo
San Antonio, Texas 78210
TELEPHONE: (210) 228-9393
THIRD COURT OF APPEALS PANEL:
Chief Justice Jeff Rose — Authored the opinion
Justice Bob Pemberton
Justice Cindy Olson Bourland
iii
TABLE OF CONTENTS
PAGE1 S1
PARTIES TO THE CASE ................................................................ ..ii
INDEX OF AUTHORTIES ................................................................ ..v
STATEMENT REGARDING ORAL ARGUMENT ................................ ..Vii
STATEMENT OF THE CASE ........................................................... ..2
STATEMENT OF PROCEDURAL HISTORY ........................................ ..3
GROUND FOR REVIEW ................................................................. ..3
ARGUMENT AND AUTHORITIES .................................................... ..4
PRAYER .................................................................................... ..12
CERTIFICATE OF SERVICE ............................................................ ..13
CERTIFICATE OF COMPLIANCE .................................................... ..14
APPENDIX ................................................................................ . . 15
iv
INDEX OF AUTHORITIES
PAGE§S[
CASES
Abbott v. State,
196 S.W.3d 334 (Tex. App.—-Waco 2006, pet. refd) ......................... ..8
Archie v. State,
340 S.W.3d 734 (Tex. Crim. App. 2011) ........................................ ..8
Bustamante v. State,
48 S.W.3d 761 (Tex. Crim. App. 2001) .......................................... ..6
Dickinson v. State,
685 S.W.2d 320 (Tex. Crim. App. 1984) ........................................ ..9
Eastep v. State,
919 S.W.2d 151 (Tex. App.-Dallas 1996) ...................................... ..10
F[ores v. State,
194 S.W.3d 34 (Tex. App. Texarkana 2006) .................................... ..7
Garrett v. State,
632 S.W.2d 350 (Tex. Crim. App. 1982) ........................................ ..9
Guidry v. State,
9 S.W.3d 133 (Tex. Crim. App. 1999) ........................................... ..4
Johnson v. State,
611 S.W.2d 649 (Tex. Crim. App. 1981) ....................................... ..10
Ladd v. State,
3 S.W.3d 547 (Tex. Crim. App. 1999) ........................................... ..6
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998) ..................................... ..7, 8
Owen V. State,
656 S.W.2d 458 (Tex. Crim. App. 1983) .................................... ..9, 10
Patrick v. State,
906 S.W.2d 481 (Tex. Crim. App. 1995) ..................................... ..10
Pollard v. State,
552 S.W.2d 475 (Tex. Crim. App. 1977) ........................................ ..6
Riney v. State,
28 S.W.3d 561 (Tex. Crim. App. 2000) ........................................ .. 10
Silva v. State,
989 S.W.2d 64 (Tex. App. San Antonio 1998) .................................. ..6
Simpson v. State,
119 S.W.3d 262 (Tex. Crim. App. 2003) ........................................ ..6
Smith v. State,
65 S.W.3d 332 (Tex. App.—Waco 2001, no pet.) .............................. ..4
Wesbroolc v. State,
29 S.W.3d 103 (Tex. Crim. App. 2000) .......................................... ..8
Wood V. State,
18 S.W.3d 642 (Tex. Crim. App. 2000) .......................................... ..6
RULES & STATUTES
TEX. R. APP. PRO. 38 .................................................................. ..4, 9
TEX. R. APP. P. 44.2(a) .................................................................... ..7
Vi
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes and respectfully suggests to this Court that the important
issues raised in this petition are worthy of oral argument. Appellant believes that
presentation of oral argument in this case will assist this Court in understanding the
effects of the Third Court of Appeals’ opinion on the lower courts which are bound
to follow its law. Therefore, for the above reasons he respectfully requests oral
argument.
vii
NO.
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS AT AUSTIN, TEXAS
STEVEN DELEON,
Appellant
V.
THE STATE OF TEXAS,
Appellee
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
CAUSE NUMBER 03-13-00202-CR
ON APPEAL FROM THE 421“ DISTRICT COURT
OF CALDWELL COUNTY, TEXAS
CAUSE NUMBER 2012-166
HONORABLE TODD BLOMERTH, PRESIDING
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
NOW COMES, Steven DeLeOn, Appellant in this cause, by and through his
attorney of record, Kerrisa Chelkowski, and pursuant to the provisions of TEX. R.
APP. PRO. 66, et seq., moves this Court to grant discretionary review, and in
support shows the following:
STATEMENT OF THE CASE
Appellant, Steven DeLeon, was charged by indictment of one count of
Continuous Sexual Abuse of A Child, and two counts of Aggravated Sexual
Assault of a Child, each count a First Degree Felony, in Cause Number 2012-166.
CR1: 9-10.’ Trial before a jury was held in the 4215‘ District Court of Caldwell
County, Texas, the Honorable Todd Blomerth Presiding. RRl: 1. DeLeon pled
“Not Guilty” to the allegations on February 20"‘, 2013 and the jury returned with
its Verdict on February 25”‘, 2013. RR7: 68. DeLeon was found “guilty” of the
single count of Continuous Sexual Abuse of a Child. R7: 68.
The jury sentenced DeLeon to 32 years imprisonment. RR7: 128. DeLeon
filed a timely Notice of Appeal on March 18, 2013. CR2: 707. Petitioner
complained on appeal, among other issues, that the trial court erred when it denied
his Motion for Mistrial after he objected to the prosecution’s improper comment on
his failure to testify. This Petition challenges the Third Court of Appeals ruling on
Appellant uses the following abbreviations to refer to the record in this case:
1
a. CRV0l#: page # refers to the Clerk’s record containing the evidence, documents,
motions and pleadings of the parties, judgment, orders, etc. of the court. Supp. refers
to the Supplemental C1erk’s Record.
b. RRVol.#: page# refers to the volumes prepared by the Court Reporters in connection
with Appellant’s pretrial hearings, voir dire, trial, sentencing, etc. MNT refers to the
record on the hearing for the Motion for New Trial.
c. See App.Br.SOF: _ refers to the Statement of Facts section of Appellant’s Brief.
whether trial court abused its discretion when it denied Petitioner’s Motion for
Mistrial.
STATEMENT OF PROCEDURAL HISTORY
On May 29, 2015, the Third Court of Appeals issued an unpublished opinion
affirming the trial court’s decision attached in the Appendix. DeLe0n v. State, No.
03-13-00202~CR, (Tex. App.—Austin, May 29, 2015). The appellate court found
that the trial court did not abuse its discretion when it denied Petitioner’s Motion
for Mistrial after he objected to the prosecution’s improper comment on his failure
to testify, and further denied Petitioner’s remaining points of error.
On September 17, 2015, the Third Court of Appeals overruled Appellant’s
Motion for Rehearing. After this Honorable Court granted Appellant’s Motion for
Extension of Time to File the Petition for Discretionary Review, Appel1ant’s
Petition is timely filed on November 18, 2015.
GROUND FOR REVIEW
SOLE ISSUE: The Third Court of Appeals erred in finding the trial court did not
abuse its discretion when it denied Petitioner’s Motion for Mistrial after the
prosecution improperly commented on Petitioner’s failure to testify.
ARGUMENT AND AUTHORITIES
Jury argument is limited to: (1) summations of the evidence; (2) reasonable
deductions from the evidence; (3) answers to argument of opposing counsel; and
(4) a plea for law enforcement. Guidiy v. State, 9 S.W.3d 133, 154 (Tex. Crim.
App. 1999). “A comment on an accused’s failure to testify violates the accused’s
state and federal constitutional privileges against self—incrimination.” Smith v,
State, 65 S.W.3d 332, 339 (Tex. App.—Waco 2001, no pet.); see also TEX. CODE
CRIM. PROC. ANN. art. 38.08 (Vernon 2005).
At the sentencing phase of the trial, during the state’s closing argument, the
prosecutor stated to the jury:
“Mr. Alsobrook: And if the Defendant had taken the stand, admitted
what he had done, and begged for forgiveness, I believe the minimum
sentence would be appropriate. But that’s not what we have here.
Mr. Collins: Your honor, could we approach the bench‘?
(Bench Conference)
Mr. Collins: 1 am going to ask for a mistrial. He did not testify at
punishment. He just said to the jury, if he got up on the stand at this
phase and told you —
l\/Ir. Alsobrook: I was specifically referring to guilt/innocence.
Mr. Collins: He didn’t say that. He said, if he got up here and asked
for forgiveness — this --- I’m asking for a mistrial, Judge.
The Court: Well, you’re not going to get one. I am going to instruct
the jury to disregard that.
Mr. Collins: That’s unbelievable.
(Open Court.)
The Court: Ladies and gentlemen, the last comment by the prosecutor
is improper, and you will not consider that for any purpose
whatsoever.
Mr. Collins: Your honor, is that a ruling on the mistrial, as well?
The Court: Denied.” RR7: 124-125.
This was a blatant and intentional comment on DeLeon’s failure to testify.
To construe it as anything else would be outrageous. During the guilt/innocence
stage of the trial DeLeon’s took the stand to testify. However, DeLeon did not
testify during the punishment phase. Even if the state tried to argue that it was
referring to his trial testimony, which it clearly was not, would be more absurd.
No defendant would take the stand during guilt/innocence and profess their guilt
and take responsibility for the crime he is accused of. That would completely
vacate the purpose of pleading “not guilty” and letting ajudge or jury decide on the
verdict. The only time a defendant might take the stand and profess his guilt and
apologize is during the sentencing phase of the trial and even that is improbable, as
it would vacate any positive result on appeal. The state clearly commented on
DeLeon’s right to remain silent thereby violating his Fifth Amendment right.
The Third Couit of Appeals relied on this Court’s direction when reviewing
the denial of a motion for mistrial and reviewed under an abuse of discretion
standard. As this Court has ruled, the denial of a motion for mistrial, which is
appropriate for “highly prejudicial and incurable errors,” is reviewed under an
abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.
Crim. App. 2003) (quoting Wood V. State, 18 S.W.3d 642, 648 (Tex. Crim. App.
2000)); Laola’ v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
Over thirty years ago in Pollard v. State, 552 S.W.2d 475 (Tex. Crim. App.
1977) this Honorable Court held that where (Pollard) was the only person who
could refute the complainant’s testimony; the prosecutor’s reference to the
complainant’s testimony as uncontroverted was a comment on (Pollard’s) failure to
testify. The same reasoning applies here because Appellant was the only person
who could have testified and apologized to the jury, which in effect would be a
admission of guilt, in answer to the prosecutor’s comments to the jury.
A prosecutor cannot comment on a defendant’s failure to testify because
such a comment violates the privilege against self-incrimination and the freedom
from compulsion to testify contained in the Fifth Amendment of the United States
Constitution and Article 1, section 10, of the Texas Constitution. Bustamante v.
State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). A prosecutor’s statement
constitutes a direct comment on a defendant’s failure to testify if it references
evidence that only the defendant can supply. Silva v. State, 989 S.W.2d 64 (Tex.
App. San Antonio 1998). The prosecution knew that an apology from DeLeon
would be a de facto admission of guilt.
Because commenting on a defendant’s failure to testify violates both the
U.S. Constitution and the Texas Constitution this error is constitutional error under
Texas Rule of Appellate Procedure (T.R.A.P.) Rule 44.2. Constitutional error,
within the context of T.R.A.P. Rule 44.2 (a), is “an error that directly offends the
United States Constitution or the Texas Constitution without regard to any statute
or rule that might also apply.” Flores v. State, 194 S.W.3d 34 (Tex. App.
Texarkana 2006). Rule 44.2(a) provides: “If the appellate record in a criminal case
reveals constitutional error that is subject to harmless error review, the court of
appeals must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.”
The question of whether a mistrial should have been granted involves most,
if not all, of the same considerations that attend a harm analysis. A mistrial is the
trial court’s remedy for improper conduct that is “so prejudicial that expenditure of
further time and expense would be wasteful and futile.” In effect, the trial court
conducts an appellate function: determining whether improper conduct is so
harmful that the case must be redone. Of course, the harm analysis is conducted in
light of the trial court’s curative instruction. Therefore, the appropriate test for
evaluating whether the trial court abused its discretion in overruling a motion for
mistrial is a version of the test originally set out in Mosley v. State, 983 S.W.2d
249, 259-60 (Tex. Crim. App. 1998), a harm analysis case.
The Mosley factors that the appellate court must consider in determining
whether the trial court abused its discretion in denying a mistrial during the
punishment phase are: (l) the prejudicial effect, (2) curative measures, and (3) the
likelihood of the same punishment being assessed. See Mosley, 983 S.W.2d at
259; see Abbott v. State, 196 S.W.3d 334, 347 (Tex. App.—Waco 2006, pet. refd).
Considering the Mosley factors, the trial court abused its discretion in denying the
motion for mistrial and the appellate court further erred in affirming the decision to
deny the motion. The prejudicial effect of the prosecutor’s remark was incurable
because the comment was direct and flagrantly improper. The trial court’s
instruction to disregard was an insufficient curative measure in this instance. See
Wesbrook V. State, 29 S.W.3d 103, ll5~l6 (Tex. Crim. App. 2000); see also Archie
v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011).
Finally, DeLeon was facing a sentence of a minimum of 25 years in prison
with no possibility of parole. Punishment evidence included only of numerous
witnesses discussing DeLeon’s good nature, professional demeanor, and
appropriate interaction with his students. The State did not put on any punishment
evidence or witnesses. Their entire case at punishment relied on their jury
argument. The likelihood of the same punishment being assessed without the
State’s comment is very low.
The trial court erred in denying his motion for mistrial after the prosecution
commented on Petitioner’s failure to testify. The Texas Code of Criminal
Procedure states that the failure of a defendant to testify “shall not be taken as a
circumstance against him, nor shall the same be alluded to or commented on by
counsel.” TEX. CODE. CRIM. PROC. art 38.08. The test of whether closing
remarks are proper is whether the language was such that a jury would naturally
and necessarily take it to be a comment on the accused’s failure to testify. Garrett
v. State, 632 S.W.2d 350 (Tex. Crim. App. 1982).
The facts of this case mirror those of Owen v. State, 656 S.W.2d 458, 459
(Tex. Crim. App. 1983). In Owen, the prosecution commented that the Appellant
had the opportunity, during the punishment phase, to take the stand and say he was
sorry, but that he did not do it. The prosecutor went on to say that the jury should
not assess probation as punishment where the defendant had not apologized for
what happened. This Court stated that if the remark complained of called the
jury’s attention to the absence of evidence, which only the testimony from the
appellant could supply, the conviction must be reversed. The remarks that the
defendant failed to apologize during the punishment phase were said to be direct
references to what the jury had not heard the appellant say.
Similarly, in Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim. App.
1984), the court found it was error to deny a mistrial where the prosecutor stated,
during the punishment phase, that appellant had failed to express any remorse,
shame or pity toward his victim.
In the present case, as in Owen, the prosecutor’s comments: “And if the
defendant had taken the stand, admitted what he had done, and begged for
forgiveness, I believe the minimum sentence would be appropriate. But that’s not
what we have here,” can only be construed as a reference to DeLeon’s failure to
testify at the punishment phase because that was the only time in which it would
have been somewhat logical and/or relevant for him to express remorse after he
pled not guilty. The prohibition against a comment on the defendant’s failure to
testify is mandatory and adverse effects of any references are not usually cured by
an instruction to the jury to disregard. Johnson v. State, 611 S.W.2d 649 (Tex.
Crim. App. 1981).
To constitute a comment on the defendant’s failure to testify, it is
insufficient that the jury might have inferred the prosecutor alluded to the failure to
testify; the language used must make the inference necessary. Eastep v. State, 919
S.W.2d 151, 154 (Tex. App.-Dallas 1996), afl’d on other grounds, 941 S.W.2d 130
(Tex. Crim. App. 1997), overruled by Riney v. State, 28 S.W.3d 561 (Tex. Crim.
App. 2000). A comment that calls the jury’s attention to the absence of evidence,
which only the defendant can supply, is reversible. Patrick v. State, 906 S.W.2d
481, 491 (Tex. Crim. App. 1995).
10
CONCLUSION
It is necessary for this Court to provide guidance and direction to the lower
courts to ensure that further defendant’s constitutional rights are not violated when
the prosecution commits improper argument. The lower courts need this guidance
and direction on ruling on motions for mistrial when a defendant’s constitutional
rights have been violated. The trial court erred in denying DeLeon’s motion for
mistrial after the prosecution commented on DeLeon’s failure to testify. Fuither,
the Third Court of Appeals erred in finding that the trial court did not abuse its
discretion in denying the Motion for Mistrial. DeLeon’s constitutional rights were
blatantly violated. Lastly, guidance by this Court will also ensure that prosecutors
across Texas are not violating defendant’s constitutional rights during jury
argument and to ensure the right to a fair trial.
11
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Steven DeLeon, Petitioner
respectfully requests this Court grant this Petition for Discretionary Review,
reverse the Third Court of Appeals’ opinion affirming the conviction and remand
Petitioner’s case for a new trial.
Respectfixlly submitted,
Law Office of Kerrisa Chelkowski
1017 South Alamo
San Antonio, Texas 78210
Telephone: (210) 228—9393
Telecopier: (210) 226-7540
Email: kerrisa@defendtexas.com
By: /s/ Kerrisa Chelkowski
KERRISA CHELKOWSKI
State Bar No: 24034373
ATTORNEY FOR PETITIONER:
STEVEN DELEON
CERTIFICATE OF SERVICE
I, Kerrisa Chelkowski, do hereby certify that a true and correct copy of this
foregoing document was sent Via certified mail to the Caldwell County District
Attomey’s Office at 201 E. San Antonio Street, P.O. Box 869, Lockhart, Texas
78644 and to the State Prosecuting Attorney located at PO. Box 13046 Austin,
Texas 78711-3046 on this the 18“ day ofNovernber, 2015.
/s/ Kerrisa Chelkowski
KERRISA CI-IBLKOWSKI
CERTIFICATE OF COMPLIANCE
Pursuant to the Texas Rules of Appellate Procedure (TRAP) 9.4(i)(3), the
undersigned certifies this brief complies with the type-volume limitations or TRAP
9.4(i)(3)
1.EXCLUSIVE OF THE EXEMPTED PORTIONS IN TRAP 9.4(i)(3), THE
BRIEF CONTAINS (select one):
A. 3,005 words, OR
B. lines of text in monospaced typeface.
2. THE BRIEF HAS BEEN PREPARED (select one):
A. in proportionally spaced typeface using:
Software Name and Version: Microsoft Office Word 2011
in (Typeface Name and Font Size): 14 pt. Times New Roman, or
B. in monospaced (nonproportianally spaced) typeface using:
Typeface name and number of characters per inch:
3. THE UNDERSIGNED UNDERSTANDS A MATERIAL
MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR
CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN TRAP 9.4(i)(3),
MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING
SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
/s/Kerrisa Chelkowski
Signature of Filing Party
APPENDIX
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
N O. 03-13-00202-CR
Steven DeLeon, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 2012-166, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Steven DeLeon guilty of continuous sexual abuse of a young
child and assessed punishment at thirty-two years in prison. DeLeon contends that insufficient
evidence supports the judgment and that the trial court abused its discretion and violated the
constitution by refusing to allow him to make a defense and fully confront witnesses against him.
He also contends that the trial court abused its discretion by denying his motion for mistrial when
the prosecutor commented on his exercise of his right to remain silent and by imposing a sentence
without the possibility of parole. We will affirm the judgment.
BACKGROUND
DeLeon taught physical education at the elementary school M.G. attended. He met
M.G. and her mother, DA., in January 2010 when M.G. started playing on the school’s fourth-grade
basketball team. M.G. played basketball through the summer of 201 1, and DeLeon spent time with
D.A. ’s family. The adults went on one date and never became romantically linked, though there was
testimony that D.A. wanted more than a friendship. DeLeon testified that he helped D.A. with her
finances, helped her start a checking account, and counseled her about her relationship with her
son, D.G., who DeLeon also taught. DeLeon attended a parent—teacher conference regarding D.G.
in place of D.A., helped M.G. with homework, and stayed with the children, sometimes overnight.
The children stayed with DeLeon and his brother overnight once. M.G. testified that it was during
such stays that DeLeon assaulted her in the summer of 201 1.
M.G. first reported an assault in May 2012 after her mother found a recording of a
March 19, 2012 telephone conversation between M.G. and DeLeon. The conversation began with
a discussion of M.G.’s grandfather’s surgery, but veered into sex-related topics. DeLeon deemed
the shift in topics inappropriate and said that M.G. was responsible for the shift, but he admitted
that he participated in the inappropriate discussions. In a discussion prompted by M.G.’s query of
why DeLeon seemed uncomfortable whenever female body parts were discussed, DeLeon said, “It’ s
kind of like with you like I remember like I would tell you: Well, am I hurting you? Or you know
is everything okay? I just want to make sure that you’re like comfortable.” DeLeon testified that
this statement referred to a basketball practice during which he had unknowingly hurt M.G. by
inadvertently touching her breast and she had been embarrassed to explain her pain in front of
the other players. The conversation also spanned other topics ranging from the inappropriateness
of physical violence in a relationship to M.G. getting whistled at in a store to the size of DeLeon’s
girlfiiend’s vagina. D.A. made a copy of the recording and took it to school officials, leading to the
police investigation and this prosecution.
M.G. testified at trial that DeLeon assaulted her four times during the summer of
201 l—-three times at her home and once at his. She testified that one time he lay on top of her with
his clothes on. M.G. said that another time he touched the outside of her private parts with his
finger. She testified that DeLeon asked if she was okay or if he was hurting her. She said that, after
this incident, she requested a different babysitter, but her mother still chose DeLeon. She testified
that when she and her brother stayed overnight at DeLeon’s house, DeLeon touched her private parts
while her brother slept next to them. In the final incident, she testified that she and DeLeon were
in her mother’s room talking when DeLeon pulled his pants down and told her to touch his penis.
She said that she touched it briefly and that he then grabbed her hand, put it onto his penis, and
moved their hands up and down on his penis while he grunted. She testified that, after five minutes,
something gooey came out of his penis.
M.G. conceded at trial that she had related different versions of these assaults at
different times to different audiences. M.G. told her mother that DeLeon assaulted her once, told
a child advocate about three instances, and testified about four instances. At trial, she recanted her
allegation to the child advocate that DeLeon had touched the inside of her vagina. She testified that
the touching hurt but had told the child advocate that it had not hurt. At trial, she rejected her report
that one of the incidents occurred during the day, insisting that it occurred at night. M.G. told a
child advocate that the phone recorded the March 19 phone conversation without her knowledge,
but she recanted that assertion at trial and explained the steps needed to make a recording. M.G.
acknowledged at trial that she was sometimes perceived as “overly dramatic.”
DeLeon argued that the allegations of assault were unfounded. He denied that he
touched M.G.’s sexual organ and that she touched his. He denied being unclothed around the
children and denied sleeping in a bed with them. DeLeon testified that his relationship with D.A.
and her family changed in the fall of 2011 when she began dating a man whom DeLeon described
as extremely jealous. D.A. changed M.G.’s phone number—M.G. linked the change to D.A.’s new
boyfriend, but D.A. testified it was because DeLeon yelled at M.G. on the phone after she did not
invite him to her holiday band concert in December 2011. M.G. testified that she surreptitiously
stored his number in her new phone under the name “William.” DeLeon testified that he decided
not to communicate with the family beginning in December 201 1. In February 2012, D.A. contacted
him after he sent a flyer to students at his school (including D.G.) regarding an event in Austin.
DeLeon testified that D.A. called to tell him that M.G. (who was now attending a different school
for sixth graders) wanted to attend.
DeLeon testified that D.A. used inappropriate langiage around the children when
talking about topics including her ex-husbands and ex—boyfn'ends. He testified that M.G. picked up
the language from her mother. He acknowledged that he fell into similar patterns when around the
family, including during the recorded March 19 telephone conversation.
DeLeon’s brother, who has lived with DeLeon for almost fifteen years, testified that
he never heard DeLeon express a sexual interest in children. DeLeon’s brother testified that they
watched television together the night that M.G. said DeLeon assaulted her at the brothers’ home.
He testified that DeLeon slept on the couch that night. DeLeon’s brother also testified that the home
is 1,300 square feet, that the bedroom doors had been removed during a remodel, and that the interior
of the bedrooms was visible from the living room.
A student, a parent of a student, and two fellow teachers testified about DeLeon. The
student testified that she liked him, found him truthful, and never had any problems with him. The
patent testified that she and her daughter loved DeLeon and that he loved the kids, was truthful, and
was a mentor. One fellow teacher described him as truthful, while another testified that she did not
like him because he was not prompt. She testified that she told DeLeon she thought he acted too
familiar with all the girls on the team and that he should not be alone with any of the girls because
it looked inappropriate, but said that she did not see him pay any extra attention to M.G. The teacher
testified that she found M.G. to be truthful.
At the punishment phase, DeLeon’s friends, colleagues, and family testified in
support of DeLeon. They described him as a good teacher and a good person who was supportive
and appropriate with children. A psychologist evaluated DeLeon and testified that the test results
showed no sexual deviancy, that he is quite conservative in his sexual practices, that he showed no
sexual interest in children, and that he scored very low on a scale of potential recidivism.
DISCUSSION
DeLeon raises four issues on appeal. He contends that the court improperly limited
his ability to confront witnesses and put on a defense. He argues that the evidence is insufficient to
prove all of the required elements. He contends that the trial court erred by denying his motion for
mistrial based on the prosecution’s comment on his failure to testify. DeLeon also asserts that the
sentence was unconstitutional because it is disproportionate and cruel and unusual.
DeLeon was not harmed by any error in the exclusion of evidence.
DeLeon contends that the trial court abused its discretion and violated his right to
confront witnesses when it prevented him from cross-examining D.A. about problems she had with
Child Protective Services, in particular D.A.’s report to DeLeon that she had abused her son.
DeLeon also contends that the trial court improperly refused to allow him to question D.A. regarding
her anger after he ignored her romantic advances toward him. He contends that this evidence
would have shown that D.A.’s report of his alleged abuse was a tactic to divert attention from her
abuse of her children.
The Constitution guarantees defendants a meaningful opportunity to present a
complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also U.S. Const. amends. VI
(compulsory process and confrontation of witnesses) & XIV (due process). There is, however, no
absolute constitutional right to present favorable evidence. Potier v. State, 68 S.W.3d 657, 659
(Tex. Crim. App. 2002) (citing United States v. Schefler, 523 U.S. 303, 316 (1998)). The right to
present relevant evidence is subject to reasonable restrictions through evidentiary rules that are
not arbitrary or disproportionate to the rule’s purpose. 111.; see also Davis v. State, 313 S.W.3d 317,
329 n.26 (Tex. Crim. App. 2010). The improper exclusion of evidence may establish a constitutional
violation (1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant
from offering relevant evidence that is vital to his defense; or (2) when a trial court precludes the
defendant from presenting a defense by erroneously excluding relevant evidence that is a vital
portion of the ease. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005). The exclusion of
evidence is unconstitutional only where it infringes on a weighty interest of the accused. Potier,
68 S.W.3d at 660 (citing Schefler, 523 U.S. at 308). Erroneous evidentiary rulings rarely rise to the
level of denying the fundamental constitutional rights to present a meaningful defense. Id. at 663.
The courts’ exercise of discretion is guided by competing interests. Courts should
permit great latitude for the accused to show any fact that would tend to establish ill—feeling, bias,
motive and animus upon the part of any witness testifying against him. Koe/zler v. State, 679 S.W.2d
6, 9 (Tex. Crim. App. 1984). On the other hand, the trial judge retains wide latitude to impose
reasonable limits on cross-examination to show bias based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive
or only marginally relevant. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010).
The parties at trial entered an agreed order in limine concerning the mention of prior
contact between any of the witnesses and Child Protective Services. During his cross-examination
of D.A., DeLeon notified the court that he intended to ask questions regarding CPS involvement with
D.A.’s family, which prompted the following exchange:
[Defense counsel]: . There is direct relations to this discipline going on that ties
. . .
to a very important defensive theory that this discipline made the child scared of her
mother.
THE COURT: You haven’t shown anything yet, Counsel, so I am not going to let
anything like that in, unless you show something that has some bearing on the case.
[Defense counsel]: Well, thenwokay, a later time then. Okay. So that’s fine.
During DeLeon’s testimony, the State objected when he mentioned that the children had been
“returned from CPS custody,” and the court cautioned the witness not to blurt out CPS references.
Later, DeLeon agreed with a question that after a conversation with D.A. he felt compelled to do
something—specifically, “as an educator, it was my obligation to Contact CPS to let them know—”
at which time the State again objected and invoked the motion in limine. The following exchange
occurred during a bench conference:
[Defense counsel]: This is goes to her motive in filing the
different, Judge. This
something that happened in the past. This is talking
case. This is not talking about
about directly what her motive would be when this case was started.
[Prosecutor]: So wouldn’t the appropriate person to be—~have gone into that been
with her?
[Defense counsel]: This is my case. You can recall her.
7
[Prosecutor]: This witness can’t testify about her motive.
[Defense counsel]: He can testify about what happened, not her motive. l can argue
based on the evidence.
it,
THE COURT: I’m sustaining the objection at this time. You can call the appropriate
person to do it.
DeLeon did not recall D.A. for further interrogation, but after the close of evidence, his attorney
made the following offer of proof:
We attempted to ask questions before the jury concerning whether [D.A.] had
informed my client, Steven DeLeon, of child abuse that she had inflicted upon her
son, [D.G.]. And that would have given her a direct motive to go into the place with
a recording [of the phone conversation between M.G. and DeLeon]. It happened
shortly before the recording was—excuse me—short1y before the recording was
discovered. And that would have prompted her to go to the authorities with that and
given her motive. And we were not allowed to ask those questions.
It is not entirely clear that DeLeon preserved this issue for appellate review. To
preserve error in the admission of evidence, a party generally must make a complaint to the
trial court with sufficient specificity that the trial court is aware of the complaint, and the court must
rule on the request. Tex. R. App. P. 33.1(a). In order for a defendant to perfect a complaint that he
was not allowed to inquire regarding a witness or party’s bias, he must establish what subject matter
he desired to examine the witness about during the cross—examination. Koelzler, 679 S.W.2d at 9.
DeLeon has not shown that he was totally forbidden from making the inquiries. The trial court
stopped him from asking D.A. about CPS until he “show[ed] something that has some bearing on
the case.” When the State objected to defense counsel’s attempt to ask DeLeon about D.A. ’s motive
for contacting law enforcement, the trial court sustained the objection “at this time,” adding this
directive to counsel: “You can call the appropriate person to do it.” DeLeon did not recall D.A. or
any other witness on the subject.
Even if DeLeon’s offer of proof is sufficient to preserve the issue regarding CPS’s
investigation into a report of abuse, DeLeon has not demonstrated that the trial court erred. There
is no showing that evidence relating to D.A.’s abuse of D.G. had any relevance on any element of
whether DeLeon sexually assaulted M.G. It can therefore be excluded absent some other theory of
admissibility. See Tex. R. Evid. 402. Whether D.A. abused her son is not admissible impeachment
evidence about her character for tmthfiilness and is not evidence of conviction for a crime. See
Tex. R. Evid. 608(a), 609. It is a specific instance of conduct which “may not be inquired into
on cross-examination of the witness nor proved by extrinsic evidence.” See id. 608(b). Also, the
relevance to bias or motivation for DA. reporting the recording of the phone conversation between
M.G. and DeLeon is not plainly apparent. If, as DeLeon argues, D.A. wanted to distract CPS from
the report that she abused her son, it is not clear that she would serve that purpose by reporting that
her daughter was sexually abused by a man D.A. repeatedly selected as a babysitter despite her
daughter’s request that she not do so. Further, because there is no challenge to the validity of the
recorded phone conversation, D.A.’s motive or bias in supplying it to law enforcement is at best
marginally relevant to the contested issues in this case. See Irby, 327 S.W.3d at 145 (trial court can
limit marginally relevant interrogation). The content of the conversation matters much more. On
the record presented, the trial court did not err by excluding evidence of D.A.’s involvement with
CPS and did not prevent DeLeon from presenting a defense.
Harm from any wrongful exclusion of this evidence is also not apparent. The
recording was not made in retaliation for D.A.’s admission of abuse. The conversation occurred on
March 19, 2012, and D.A. made the abuse admission to DeLeon “shortly before” she discovered the
recording on M.G.’s phone on May 20, 2012. DeLeon does not dispute that he made the recorded
statement, and although M.G. may have introduced the topic of DeLeon’s discomfort with discussion
of female body parts, he initiated the discussion of unspecified events with M.G. when he wanted
to ensure that she was comfortable and that he was not hurting her. The trial court’s failure to allow
DeLeon to delve into D.A.’s potential motivations for disclosing this recording to law enforcement
did not affect the jury’s consideration of the substance of the phone call.
Further diminishing any harm, DeLeon was able to challenge D.A.’s and M.G.’s
credibility in other ways. DeLeontestif1ed and flatly denied that the assaults occurred. He presented
evidence that D.A. was biased against him because she was angered by his rejection of her romantic
overtures. He queried M.G. who said that D.A. had a “crush” on DeLeon and that he did not like
her mother in that way. DeLeon’s brother testified that D.A. was obsessed with DeLeon and that his
brother did not return her affection. He testified that D.A. would show up at the brothers’ house
unannounced while they were out and would wash their dishes and feed their dog. DeLeon himself
testified that D.A. wanted to marry him but that, while he was interested in helping her children, he
was not interested in marriage with her. All this testimony called into question D.A.’s credibility
because she testified that she and DeLeon went on a date but decided that they were better off as
friends. Further, although D.A. asserted that she did not telephone DeLeon, he confronted her with
records showing that 570 calls went from her phone to his. He confronted M.G. about the different
stories of abuse she told to different questioners. He highlighted the fact that she reported one, then
three, then four incidents, and noted inconsistencies between versions as to whether the contact hurt,
where her brother was during an incident, and \vhether the assault occurred during the day or night.
10
Further, DeLeon’s brother contradicted details of M.G.’s story about the assault at the brothers’
house. The trial court’s failure to allow him to obtain the testimony he wanted about D.A.’s alleged
abuse of her son did not prevent him from confronting witnesses and challenging their credibility.
We conclude beyond a reasonable doubt that any erroneous exclusion of evidence discussed above
did not contribute to DeLeon’s conviction or punishment. See Tex. R. App. P. 44.2(a).
The evidence is sufficient to support the conviction.
In reviewing the sufficiency of the evidence to support a conviction, we determine
whether a rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In
making this determination, we consider all evidence that the trier of fact was permitted to consider,
regardless of whether it was rightly or wrongly admitted. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007); Allen v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet).
We view this evidence in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778. The
jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given
to their testimony. Id. Therefore, we presume that the jury resolved any conflicting inferences and
issues of credibility in favor of the judgment. Id.
A person commits continuous sexual abuse of a child if, while the person is 17 years
of age or older and the victim is a child younger than fourteen years, the person commits two or more
acts of sexual abuse during a period that is 30 or more days in duration. Tex. Penal Code § 21 .02(b).
Acts of sexual abuse include indecency with a child if the person committed the offense in a
manner other than by touching the child’s breast, id. § 21.1 l(a)(l), sexual assault, id. § 22.011, and
aggravated sexual assault, id. § 22.011.
ll
M.G.’s testimony is sufficient to support the conviction. It is undisputed that DeLeon
and M.G. were, respectively, thirty-nine and twelve years old during the summer of 2011. M.G.
testified that around June 3, 201 1, DeLeon touched her vagina. She testified that they were lying on
the floor, he asked her to remove her shorts, and he moved his fingers on her vagina. She testified
that, after he touched her for about five minutes, he kissed her neck really hard and left a mark. She
said he asked if she was okay or if he was hurting her. This testimony supports a finding that
DeLeon committed indecency with a child by contact. See id. § 21.11(a)(l). M.G. testified that,
about a month later—longer than thirty days, she said—when she and her brother were staying
overnight at DeLeon’s house, DeLeon touched her vagina. She testified that, while they were lying
on his bed, he asked her to remove her shorts and underwear, and he moved his finger around and
inside her vagina for about five minutes. He again asked her if he was hurting her. This testimony
supports a finding of indecency with a child by contact, sexual assault of a child, and aggravated
sexual assault of a child. See id. §§ 21.1 l(a)(1), 22.011(a)(2), 22.02 1 (a)(1)(B)(i). M.G. testified that
about three weeks later when she and DeLeon were talking in her 1nom’s bedroom, DeLeon pulled
down his pajama pants and told M.G. to touch his penis. She did quickly, but he grabbed her hand,
put his hand over hers, and moved their hands together up and down his penis for about five minutes.
She said he made grunting noises, then something clear and gooey came out of the top of his
penis. This testimony is sufficient to support a finding of indecency with a child by contact. See id.
§ 21.11(a)(1). The child testified that the second incident occurred more than thirty days after the
first, and that the third incident occurred about three weeks after the second. Even if the testimony
that the second incident occurred “about a mont ” after the first were insufficient to show the
requisite period, the third incident occurred about a month and three weeks after the first—a
12
combination sufficient to support a finding of two incidents of sexual abuse of a child occurring over
a period of at least thirty days. See id. § 2l.O2(b)(1).
DeLeon challenges M.G.’s credibility, pointing to inconsistencies in her statements
at various times and to contrary testimony by others. He notes her failure to make an outcry before
her mother confronted her with the recorded telephone conversation with DeLeon. He points out
that she reported one incident, then three, then four, and that her reports varied with regard to
how he touched her, whether his touch hurt, what time the offenses occurred, and where her brother
was during these events. He notes that she admitted liking to use sexual language, initiating the
sexual theme into the telephone conversation, and being overly dramatic. DeLeon also points to his
brother’s testimony that DeLeon did not share a bed with her when she stayed at their home and
that the bedrooms at that house have no doors. The jury, however, could have either rejected that
testimony or found that the offense simply occurred in a short period during which DeLeon’s brother
was not monitoring him. The jury was faced with a credibility choice and selected M.G. The record
is not such that we can intrude on the jury’s role and override its choice to credit M.G.’s testimony.
See Clayton, 235 S.W.3d at 778; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). We
find the evidence sufficient to support the conviction.
The court did not abuse its discretion by denying DeLeon’s motion for mistrial during the
State’s argument at the punishment phase.
Pennissible jury argument includes summation of the evidence, reasonable
deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement.
Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988). Commenting on an accused’s
failure to testify violates his state and federal constitutional privileges against self-incrimination.
13
Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). A defendant’s Fifth Amendment
privilege against self-iricrimination continues during the punishment phase of trial. See Mitchell
v. United States, 526 US. 314, 325-27 (1999); Carroll v. State, 42 S.W.3d 129, 131-32 (Tex. Crim.
App. 2001).
We can reverse a trial court’s denial of a motion for mistrial only for an abuse
of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). To determine whether
the court’s instruction cured the prejudicial effect of the improper comment, we balance
three factors: (1) the severity of the misconduct’s prejudicial effect, (2) any curative measures,
and (3) the likelihood of the same punishment being assessed absent the misconduct. Hawkins
v. State, 135 S.W.3d 72, 75 (Tex. Crim. App. 2004). Mistrial is the appropriate remedy when the
objectionable events are so emotionally inflammatory that curative instructions are not likely to
prevent the jury from being unfairly prejudiced against the defendant. Archie, 340 S.W.3d at 739.
Only in extreme circumstances where the prejudice is incurable will a mistrial be required. Hawkins,
135 S.W.3d at 77. Where a comment leads to two plausible inferences—one of which is
perrnissible—we do not presume that the jury would necessarily choose the improper inference. See
Henson v. State, 683 S.W.2d 702, 704-05 (Tex. Crim. App. 1984). A comment on the defendant’s
failure to show remorse is generally not proper if the defendant testifies at the guilt stage and
presents some defense, but does not testify at the punishment phase. Randolph v. State, 353 S.W.3d
887, 892 (Tex. Crim. App. 2011). The prosecutor may during the punishment phase comment on
any testimony given by the defendant in the guilt/innocence phase and, if the defendant expressly
or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on
that denial. Id. at 895. A statement during punishment argument that the defendant failed to express
14
remorse might be taken as a comment on his failure to testify, but any harm from that violation
can be cured by an instruction to disregard the comment. Moore v. State, 999 S.W.2d 385, 405-06
(Tex. Crim. App. l999)./
DeLeon contends that the trial court should have granted his motion for mistrial after
the State commented on his exercise of his right to remain silent during the sentencing phase of trial.
DeLeon testified during the guilt/innocence phase and denied committing the offense but did not take
the stand during the punishment phase. The controversy centers on the following exchange during
the State’s punishment argument:
[Prosecutor]: . . And it’s scary the way that he conducted himself, the absolute
. .
denial with what he showed, and then the complete support of his family behind him.
I do not believe 25 years, as a punishment, is appropriate in this case. [believe a
sentence of 60 years would be appropriate. [M.G.] is going to have to live with this
for the rest of her life.
And if the Defendant had taken the stand, admitted what he had done, and begged for
forgiveness, I believe the minimum sentence would be appropriate. But that’s not
what we have here.
[Defense counsel]: Your honor, could we approach the bench?
(Bench Conference)
DEFENSE MOTION FOR MISTRIAL
[Defense counsel]: 1 am going to ask for a mistrial. He did not testify at punishment.
He just said to the jury, if he got up on the stand at this phase and told you—
[Prosecutorl]: Iwas specifically referring to guilt/innocence.
[Defense counsel]: He didn’t say that. He said, if he got up here and asked for
forgiveness—this—I’m asking for a mistrial, Judge.
15
COURT’S RULING
The Court: Well, you’re not going to get one. I am going to instruct the jury to
disregard that.
[Defense counsel]: That’s unbelievable.
(Open Court.)
The Court: Ladies and gentlemen, the last comment by the prosecutor is improper,
and you will not consider that for any purpose whatsoever.
The court then expressly denied the motion for mistrial.
As the trial court found, the argument was improper. The prosecutor’s comment
violated DeLeon’s right not to testify. See Randolph, 353 S.W.3d at 891. Even if the statement that
DeLeon did not take the stand and admit what he had done referred to DeLeon’s testimony
at guilt/innocence during which he denied wrongdoing, the statement that he did not beg for
forgiveness is equivalent to the failure to express remorse found to be an improper comment by
the court of criminal appeals. See Swallow v. State, 829 S.W.2d 223, 226 (Tex. Crim. App. 1992),
overruled in part by Randolph, 353 S.W.3d at 894-95 (distinguishing between prosecutorial
argument that defendant did not accept responsibilityma proper summation of the defendant’s
guilt/innocence testimony denying coirunitting the crime—from argument that defendant did not
express remorse—an improper comment on the failure to testify at punishment).
We conclude, however, that the trial court’s prompt, thorough, and proper instruction
to the jury to entirely disregard the prosecutor’s argument cured the harm. DeLeon received a
sentence of thirty-two years—seven years above the minimum of twenty—f1ve years permitted for the
offense of continuous sexual abuse of a child, but well below the maximum life sentence permitted.
See Tex. Penal Code § 21.02(h). Considering that the sexual abuse of the child found by the jury
16
was committed by an elementary school teacher—one entrusted with the safety and well-being of
children—we are confident that the j ury was not inflamed by the improper comment and very likely
would have assessed the same punishment absent the misconduct. Hawkins, 135 S.W.3d at 77. The
trial court did not abuse its discretion by denying the motion for mistrial.
The sentence did not violate the constitution.
DeLeon contends that his punishment violates constitutional prohibitions against
cruel and unusual punishment because it does not have a possibility of parole. See Tex. Penal Code
§ 21.02(h); see also Tex. Gov’t Code § 508.l45(a). He notes that his minimum possible sentence
was twenty—five years in prison, while someone who murders a child could get as few as five years
in prison with a possibility of parole. See Tex. Penal Code § 12.32; Tex. Gov’t Code § 508. l45(t).
He contends that, because a child murderer sentenced to thirty-two years in prison would be
eligible for parole but he would not, his sentence is disproportionate to his crime. He contends that,
in assessing whether this categorical denial of parole to persons guilty of continuous child sexual
abuse is cruel and unusual, we should examine four factors: (1) whether there is a national
consensus against imposing the particular punishment at issue; (2) the moral culpability of the
offenders at issue in light of their crimes and characteristics; (3) the severity of the punishment; and
(4) whether the punishment serves legitimate penological goals. Meadoux v. State, 325 S.W.3d 189,
194 (Tex. Crim. App. 2010). He contends that murder is a worse crime than sexual abuse and that
Texas’s sentencing parameters are inconsistent with that hierarchy. He contends that the sentence
is severe because he will be incarcerated until he is in his late sixties.
The State leans on the conclusion by the Amarillo court that the punishment structure
for continuous sexual abuse of a child is constitutional, even when a person about forty years
17
of age is sentenced to a sixty-year prison term without the possibility of parole. Glover v. State,
406 S.W.3d 343, 346-50 (Tex. App.—Amarillo 2013, pet. refd). The Amarillo court found a
national consensus in favor of the constitutionality of the sentencing range for this offense, primarily
based on the request by a judge on the Court of Criminal Appeals that the legislature enact tougher
punishment on those who commit continuous sexual assaults of children. See id. at 348 (citing
Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J ., concurring)). The
Amarillo court wrote that—-—Glover, 406 S.W.3d at 348-49. The Amarillo court opined that the severity
of imprisonment for sixty years (in that case) without the possibility of parole weighed against the
constitutionality of the statute. Id. at 349. Finally, the Amarillo court opined that the mere fact that
the sentencing range for this offense is greater than that for child murder does not necessarily render
the sentencing range unconstitutional. Id. That court reasoned that those convicted of the crime are
already recidivists and opined that they are more likely to reoffend than murderers who, aside from
serial killers, tend not to reoffend. Id. at 349-50. The court held that the prison term without parole
served the penological goals of retribution, deterrence, and incapacitation. Id.
DeLeon has presented no evidence or argument that requires rejection of the Glover
opinion. The sentence imposed in this case—thirty—two years in prison—is substantially less than
the sixty-year prison term imposed on a similarly aged defendant in that case and found to be
constitutional. See id. at 345. We are not persuaded that the mere fact that a child sexual abuser
might be sentenced to a longer prison term than a child murderer necessarily renders the sentencing
18
structure unconstitutional. Assuming that criminal behavior is affected by the punishment ranges
enshrined in law, we are somewhat concerned by the “incentive” inherent in a sentencing strucmre
that mandates a minimum sentence for a person who improperly sexually touches a child twice that
is five times longer than the five—year minimum sentence available for a person who murders that
same child, but we are not persuaded that our concern is sufficient to render the statutes or DeLeon’s
sentence unconstitutional.
CONCLUSION
Finding that DeLeon has presented no reversible error, we affirm the judgment.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Pemberton and Bourland
Affirmed
Filed: May 29, 2015
Do Not Publish
l9 | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4073477/ | PD-0798-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/18/2015 10:37:43 AM
Accepted 11/18/2015 3:28:21 PM
ABEL ACOSTA
NO. PD-0798-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
AUSTIN, TEXAS
DEBORAH BOWEN,
APPELLANT
V.
STATE OF TEXAS,
APPELLEE
****************************************************
NOTICE OF APPEARANCE OF ADDITIONAL COUNSEL
****************************************************
ON APPEAL FROM THE 32ND DISTRICT COURT OF FISHER
COUNTY, TEXAS, NO. 3313; AND FROM THE 11TH COURT OF
APPEALS, NO. 11-13-00114-CR
*****************************************************
STAN BROWN ANGELA MOORE
P.O. BOX 3122 310 S. ST. MARY'S ST. STE 1830
ABILENE, TEXAS 79604 SAN ANTONIO, TEXAS 78205
325-677-1851 210-364-0013
FAX 325-677-3107 FAX 210-855-1040
STATE BAR NO. 03145000 STATE BAR NO. 14320110
EMAIL: mstrb@aol.com EMAIL: amoorelaw2014@gmail.com
ATTORNEYS FOR APPELLANT
November 18, 2015
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
DEBORAH BOWEN,
APPELLANT
NO. PD-0798-15
(COURT OF APPEALS NO. 11-13-00114-
CR; TRIAL COURT NO. 3313)
STATE OF TEXAS,
APPELLEE
NOTICE OF APPEARANCE OF ADDITIONAL COUNSEL
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
Now comes DEBORAH BOWEN, Appellant, and hereby respectfully
informs the Court that as of two weeks prior to the filing hereof, Angela
Moore, Attorney at Law, 310 S. St. Mary's St. Ste 1830, San Antonio, Texas
78205, State Bar of Texas No. 14320110, has become associated with
original counsel, Stan Brown, with both his and Appellant's approval, in the
further representation of Appellant DEBORAH BOWEN herein.
2
Respectfully submitted,
/s/ Stan Brown /s/ Angela Moore
STAN BROWN ANGELA MOORE
P.O. BOX 3122 310 S. ST. MARY'S ST, STE 1830
ABILENE, TEXAS 79604 SAN ANTONIO, TEXAS 78205
325-677-1851 210-364-0013
FAX 325-677-3107 FAX 210-855-1040
STATE BAR NO. 03145000 STATE BAR NO. 14320110
EMAIL: mstrb@aol.com EMAIL: amoorelaw2014@gmail.com
CERTIFICATE OF SERVICE
We hereby certify that on this 18th day of November, 2015, a true
and correct copy of the above and foregoing Notice of Appearance of
Additional Counsel was emailed to Ms. Ann Reed, 32nd District Attorney,
at ann@32ndda-tx.us; and to Ms. Lisa McMinn, State Prosecuting Attorney,
at information@spa.texas.gov.
/S/ Stan Brown
STAN BROWN
/S/ Angela Moore
ANGELA MOORE
3 | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4073480/ | JUDGMENT
Court of Appeals
First District of Texas
NO. 01-15-00556-CV
IN THE INTEREST OF S.R.-M.C.
Appeal from the 313th District Court of Harris County. (Tr. Ct. No. 2010-08247J).
This case is an appeal from the order terminating parental rights signed by the trial
court on June 2, 2015. After submitting the case on the appellate record and the
arguments properly raised by the parties, the Court holds that the trial court’s order
contains no reversible error. Accordingly, the Court affirms the trial court’s order.
The Court orders that this decision be certified below for observance.
Judgment rendered November 17, 2015.
Panel consists of Chief Justice Radack and Justices Massengale and Brown. Opinion
delivered by Chief Justice Radack. | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430511/ | I think there was an election as to the entire amount, and I would affirm without modification.
EVANS, J., joins in this dissent. *Page 651 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3437320/ | The defendant appellant is a lecture bureau. The plaintiff was one of its lecturers for a period of five years. The contract between the parties was entered into in January, 1905. The headquarters of the bureau were in Des Moines. The residence of the plaintiff was Camden, N.Y. After some oral negotiations, a written contract was formulated at the home office and forwarded to the plaintiff, and was duly executed by both parties. Such contract was as follows:
Contract. By and between Midland Lyceum Bureau, Des Moines, Iowa, party of the first part, and Elliott A. Boyl, of Camden, New York, party of the second part, witnesseth: That said party of the first part does hereby agree to engage and does engage said second party for as much time as they may be able to use during the season beginning in October, 1905, in the capacity of lecturer. Limited to_______. Said first party agrees to pay said second party for said services the sum of seventy ($70.00) dollars per week (payable weekly), and all expenses; said expenses to mean railroad fares, necessary drives, bus and baggage transfers, hotel bills, beginning at Camden, New York, and ending at last date; credential rebates for clergy rate (if secured) to belong to said first party. First party agrees to furnish printing except 2,000 advance enamel *Page 580
circulars and plates, cuts and designs for circulars and hangers. Witnesseth: That said second party does hereby agree to fill all bookings made for him on the dates assigned, and to report on Monday of each week, on blanks furnished by first party, the collections and disbursements (including his own salary) of the previous week up to and including Sunday, and to remit, with report, by draft or money order, the balance on hand. Said second party agrees to give six nights per week to the work, if so many should be required, and to take drives, night trains, and to endure other hardships where necessary. Second party agrees to follow railroad schedules furnished by first party and to depart from same only at his own risk, except in cases where a change of train time-tables shall render the schedules furnished first party inoperative, in which case he shall spare no effort to reach his date, by any other route, or a long drive, if necessary. Second party agrees to pay all his expenses not named above, and to furnish or pay for 2,000 advance enamel circulars and plates, cuts and designs for circulars and hangers. Second party agrees to give first party exclusive control of his time from October 1, 1905, to October 1, 1906, and to give first party option on his time from October 1, 1906, to October 1, 1907, at $85.00 per week, same terms as above; also from October 1, 1907, to October 1, 1908, at $100.00 per week, same terms as above. Second party agrees to avoid making trouble at hotels or with committees or managers, the express understanding of this paragraph being that he shall be polite, agreeable and obliging at all times and endeavor to please both on and off the platform. (Second party also agrees that first party may cancel this contract for incompatibility, ill health, misconduct or unsatisfactory work) and where loss is sustained or rebates must be made to any committee because of his failure to please, said second party shall receive no salary for said engagement. It is mutually agreed that `open dates' shall be borne by first party, but in any event no salary shall be paid when two or more engagements are missed due to blockades, washouts, epidemics, or other troubles where blame attaches to neither party, though first party shall pay all expenses of second party during that time; also any agreement by first party to take consecutive time does not apply to any time open between *Page 581
December 15 and January 15, unless first party chooses to book said time, nor to any other period of one or more weeks in which no bookings occur, provided first party fills the guaranteed number of nights (or weeks), if any are guaranteed, between October 1 and May 1, of the season specified. It is also agreed that second party shall collect, report, and remit as agent of the first party, and as such is liable for all funds passing through his hands. It is also mutually agreed (that first party shall also have option on time of second party from October 1, 1908, to October 1, 1910, at $100.00 per week, same terms as above. Also that second party shall be sold in a circuit as a regular circuit number).
At the time such contract was forwarded to the plaintiff for his signature, it was accompanied by the following letter known in the record as Exhibit B.
Des Moines, Iowa, Jan. 14, 1905. Mr. Elliott A. Boyl, Camden, New York — Dear Mr. Boyl: We inclose contract made out for five years as per our agreement with you when I saw you. Will see what we can do with Waterloo and other assemblies and do all we can for you. I just returned home the 12th. I wish to reiterate our statement that our seasons do not run less than 100 nights. The only guarantee that you need along this line is our agreement to sell you as regular circuit number which we are willing to do. The only possibility of running less would come in case of an utter destruction of the Midland Bureau due to hard times or some great national calamity which would swamp us. We think you will see the absurdity of such a supposition and will understand as the rest of our talent understands that the agreement to put you in a regular circuit is equivalent to guaranteeing you 100 nights or more. We have talked over the matter of your doing agency work in Ohio and we are more than anxious to have you attempt it, feeling sure that you can make money and at very little risk of loss to yourself. Will make you a proposition along that line in a very short time. Best regards.
1. CONTRACTS: evidence in explanation of ambiguity.
I. The plaintiff entered upon the performance of the contract and continued for four successive years, concerning *Page 582
which no controversy is presented. The defendant also exercised its option to demand the plaintiff's services for the fifth season beginning October, 1909. For that season, the defendant furnished the plaintiff seventy-eight engagements. It is the contention of plaintiff that under the contract he was entitled to a minimum limit of one hundred engagements. He brought this suit to recover compensation for the additional twenty-two nights claimed by him. It is the contention of defendant that it was bound to use plaintiff only for such engagements as it could secure, and not more, and that it could not secure more engagements for him than it did do for the last season, and that it terminated his contract on March 25, 1910. In support of his contention, the plaintiff introduced in evidence over the objection of defendant the letter (Exhibit B). He contends that it was a part of the written contract, or, at least, that it was an accepted interpretation thereof. The defendant contends that it was no part of the contract, and that it should not have been admitted in evidence, and the points relied on for reversal concentrate upon this letter.
Turning now to the contract which is known in the record as Exhibit A and to the letter Exhibit B, we find them entirely consistent. Looking at the contract Exhibit A alone, it would not be intelligible to an ordinary person without the aid of extrinsic interpretation. The contract refers to a "guaranteed number of nights," but does not specify the number. It also contains the words "limited to _______." It also provides for an option to the defendant on the time of plaintiff "from October, 1908, to October 1st, 1910, at $100 per week same terms as above." It also provides that the plaintiff "shall be sold in a circuit as a regular circuit number." It also gives the defendant the exclusive control of the time of the plaintiff for the entire period covered at a stated compensation per week. Exhibit B only purports to be an interpretation of Exhibit A as *Page 583
to what is meant by selling the plaintiff "as a regular circuit number." It is there stated that this "is equivalent to guaranteeing you one hundred nights or more." The proviso of Exhibit A thus interpreted does not on its face convey any definite meaning. It was clearly proper that the parties put an interpretation upon it. For four seasons the defendant furnished plaintiff one hundred engagements or more, except for the second season. For such season the engagements actually furnished were somewhat less than one hundred, but the plaintiff was compensated precisely as though the one hundred engagements had been furnished. We have then the written interpretation agreed on in advance of performance, and a subsequent interpretation by the mutual acts of the parties in the course of performance, from both of which it appears that the plaintiff was to receive a minimum wage as for one hundred engagements. We hold, therefore, that Exhibit B was clearly admissible. It is immaterial for the purpose of this case whether it should be deemed as a part of the contract or simply as an interpretation of its ambiguity. The real meaning of the terms used in Exhibit A could only be ascertained by resort to Exhibit B.
The appellant has specified a large number of points relied on for reversal, all of which bear directly upon the question now considered. Our conclusion thereon is quite decisive against the appellant upon the whole case.
2. SAME: breach: damages.
II. By way of counterclaim, the defendant pleaded damages for breach of contract. Two items were claimed. One of them was conceded and presents no controversy. The other was an item for damages resulting to the defendant by reason of plaintiff's failure to fill a date at Alma, Neb. It is claimed that the failure resulted in damage to the defendant to the amount of $162. We can find no evidence in the record to show that plaintiff's failure to make the date at Alma, Neb., resulted through any fault of his own. Be that as it may, *Page 584
the contract especially provides that, "where a loss is sustained," . . . "said second party shall receive no salary for said engagement." The plaintiff received no salary for the Alma engagement, and claimed none. He therefore met the full requirements of the contract in that regard.
The judgment below must be — Affirmed.
*Page 306 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247144/ | AMY BERMAN JACKSON, United States District Judge
Plaintiff Dolores Barot brought this action against the Embassy of the Republic of Zambia alleging that defendant discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. when it paid her less than male employees, and that it discriminated and retaliated against her in violation of Title VII and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") when it terminated her employment. Compl. [Dkt. # 1] at 4. Plaintiff later amended her complaint to include an allegation that defendant violated the District of Columbia Wage Payment and Collection Law, D.C. Code § 32-1301, et seq. ("DCWPCL"), when it failed to pay her wages she was owed after her termination. 1st Am. Compl. [Dkt. # 17-1] ¶¶ 63-65; 2d Am. Compl. [Dkt. # 60] ¶¶ 87-90. On September 8, 2017, the Court granted defendant's cross-motion for partial summary judgment on the DCWPCL count (Count IV), concluding that the claim was barred by the statute of limitations.
Pending before the Court is defendant's motion for summary judgment on Counts I, II, and III. Def.'s Mot. for Summ. J. [Dkt. # 80] ("Def.'s Mot."); Mem. in Supp. of Def.'s Mot. [Dkt. # 80-1] ("Def.'s Mem.")1 While it appears that plaintiff's *166termination was hasty, and one could take issue with the quality of the managerial decision making involved, plaintiff has not come forward with evidence that would enable a reasonable jury to conclude that she was terminated because of her age, or in retaliation for complaining about gender discrimination. So the Court will grant defendant's motion for summary judgment on the remaining counts.
BACKGROUND
I. Factual Background2
Plaintiff began working for defendant as a secretary in January 1998. Def.'s SOF ¶ 1; Pl.'s SOF ¶ 1. Her base salary was $1,300.00 per month, and she was eligible for an annual salary increase of $600.00 if the Embassy was satisfied with her performance during the year. Def.'s SOF ¶ 21; Pl.'s SOF ¶ 21. As of the time of her termination, plaintiff's monthly salary was $3,150.00. Def.'s SOF ¶ 26; Pl.'s SOF ¶ 26.
*167During her employment, plaintiff's supervisor was either the Embassy's Second Secretary (Accounts)-originally Paul Mulenga, and then Frank Mbewe-or its First Secretary (Accounts)-Mbewe. Def.'s SOF ¶ 2; Pl.'s SOF ¶ 2. Over time, as plaintiff saw it, she took on additional duties she described as "accounting duties," Pl.'s SOF ¶ 27; Ex. 3 to Def.'s Mot. [Dkt. # 80-3] at 7, 16, and, she wrote a memorandum to the Ambassador on September 7, 2009 requesting an increase in her salary. Def.'s SOF ¶ 27; Pl.'s SOF ¶ 27; Ex. 18 to Def.'s Mot. [Dkt. # 80-5] ("Sept. 7 Barot Memo"). She also provided copies of the memorandum to Mbewe; Felix C. Mbula, the First Secretary (Political & Administrative); and the Embassy's Minister Counsellor, Alfred Chioza. See Sept. 7 Barot Memo; Ex. 2 to Def.'s Mot. [Dkt. # 80-3] at 104:9-14.3
In the memo, plaintiff advocated for a salary increase commensurate with her "extra work load," and she claimed that four other individuals had been treated in that manner. Def.'s SOF ¶ 27; Pl.'s SOF ¶ 27; see also Sept. 7 Barot Memo. Plaintiff's memo had this to say about the four others:
Back in February, 2000, when Glen Jervis, Receptionist took the position of Secretary, her Salary was commensurately increased from $1,260.00 to $1,460.00, a monthly increase of $200.00 ($2,400.00/year).
In May 2003 ... Office Orderly/Janitor, Cresencio Lawigan's monthly salary was raised from $1,000 to $1,200.00; an increase of $200.00 a month ($2,400.00/year), justifying that he has to do extra work in the Chancery and the Ambassador's Residence.
In 2007, when the Second Secretary (Accts.) and Third Secretary (PA) were promoted to First Secretary (Accts) and Second Secretary (PA), their Overseas Allowances were also commensurately raised.
Sept. 7 Barot Memo; see also Def.'s SOF ¶ 28; Pl.'s SOF ¶ 28 (clarifying that Glen Jervis is female and Crescendo Lawigan is male). Plaintiff also maintained that she deserved the increase because the fact that she had created a computer template to substitute for paper forms had saved the Embassy money:
I have been doing my job exceedingly, and the Embassy have [sic ] been saving a lot, which savings is more than the 10% of my one month's salary. These savings are from purchase of Payment Vouchers and Backing Sheets because prior to my hiring, all these forms are bought from Printing Companies which the Embassy is no longer doing from then on.
Sept. 7 Barot Memo.
On September 9, 2009, plaintiff met with Mbewe and Mbula to discuss her requested salary increase. Def.'s SOF ¶ 31; Pl.'s SOF ¶ 31. Plaintiff's request was denied, and Mbewe, Mbula, and plaintiff agreed that she would return to her ordinary secretarial duties instead. See Def.'s SOF ¶ 31; Pl.'s SOF ¶ 31; Barot Dep. at 106:12-16; id. at 107:19-108:9.
Before she left for the day, though, plaintiff prepared and delivered another *168memorandum to Mbewe and Mbula. She informed them that there was a shortage of the hard copy payment voucher forms that she would now need in light of her return to "secretary only" duties. Def.'s SOF ¶¶ 32-33; Pl.'s SOF ¶¶ 32-33; see Ex. 20 to Def.'s Mot. [Dkt. # 80-5] ("Sept. 9 Barot Memo");4 Barot Dep. at 122:22-123:6 (explaining that she would go back to using the paper form because that is what she did "when [she] was first hired as being [a] secretary"). Plaintiff had created and then continuously used the computerized version of the form during the time period that led up to the meeting. But after the meeting, she gave a memorandum to her supervisors advising them that they would need to order the paper forms again, repeating her point that she had been saving the Embassy money. See, e.g. , Barot Dep. at 115:20-116:6 ("On the 9th after our meeting, it has been agreed that I will be going back to being secretary. So because when I was a secretary I just filled out those forms, the payment vouchers, the backing sheet, and the forms. So-and the payment vouchers that I had was already running out, the forms that I was using before when I was a secretary. They still had the form there, so I requested for purchase of those payment vouchers."); id. at 123:18-124:3 ("Q. Why did it have to go back to that way instead of you continuing to use the form that was on your computer that would show the numbers on it?" A. "So I just wanted them to know that the one that I did was very useful. They were saving, because I was-I have to point them to they were saving because of what I did. So I had to be compensated for what I did."); id. at 156:17-157:17 ("Because I want them to know that that they are saving a lot by using what I have done and what I had formatted in my computer. They are saving a lot."); see also Sept. 9 Barot Memo.
According to defendant, Mbewe did not have access to the computerized forms on his computer, but he could access them on plaintiff's computer. Def.'s SOF ¶ 34. He logged on to plaintiff's computer after she left work on September 9, but he was unable to find the form, and he concluded that the payment voucher template had been deleted. Id. He then informed Mbula that plaintiff had deleted the template. Id. & n.52; see Ex. 21 to Def.'s Mot. [Dkt. # 80-5] ("Brief on the Case of Dolores Barot") at 2.5 The "mission administration" made a decision that night to place plaintiff on administrative leave immediately pending the arrival of the Ambassador. See Brief on the Case of Dolores Barot at 2.
The next morning, September 10, 2009, Mbula entered plaintiff's office. Def.'s SOF ¶ 36; Pl.'s SOF ¶ 36. After he asked plaintiff whether she was a member of a labor union, to which she responded "no," he presented her with a letter dated the same day signed by Chioza, placing her on indefinite administrative leave. Def.'s SOF ¶ 36; Pl.'s SOF ¶ 36. Mbula asked her to gather her things, and he escorted her out of the office. Def.'s SOF ¶ 36; Pl.'s SOF ¶ 36.6
The September 10, 2009 letter stated:
*169Further to the meeting between First Secretary (Accounts), First Secretary (Political and Administration) and yourself, regarding matters pertaining to your duties, and after serious consideration of the circumstances surrounding your actions thereafter, it has been decided to place you on indefinite administrative leave with immediate effect pending review of your case.
During your administrative leave, you will receive 50% of your salary. Any further decisions regarding your employment with the Embassy will be made after the outcome of the review of your case.
Ex. 22 to Def.'s Mot. [Dkt. # 80-5] ("Administrative Leave Letter").
In a letter dated November 5, 2009, defendant informed plaintiff that she had been terminated. See Ex. 24 to Def.'s Mot. [Dkt. # 80-5] ("Termination Letter"). That letter stated in relevant part:
I write to inform you that following the review of the circumstances that led to your being placed on administrative leave on 10th September, 2009, the Embassy has decided that your services are no longer required by the Government of the Republic of Zambia.
Your employment contract has therefore been terminated with effect from 31st October 2009. You will be paid one month's salary in lieu of notice.
Id. Plaintiff was 62 years old when she was terminated, and she was the oldest locally engaged staff member employed at the Embassy. Def.'s SOF ¶ 4; see Pl.'s SOF ¶ 4. On approximately November 23, 2009, the Embassy hired Nischel Pedapudi, a male who was younger than plaintiff, as her replacement. See Def.'s SOF ¶ 46; Pl.'s SOF ¶ 46.
II. Embassy Personnel
The organization of the Embassy is relevant to its status as an employer that could be liable under Title VII and the ADEA. The Ambassador, the Defense Attaché, and Embassy personnel, which includes both diplomatic personnel and locally engaged staff, were posted to the Embassy located in Washington, D.C. See Def.'s SOF ¶¶ 6, 11; Pl.'s SOF ¶¶ 6, 11.
During the relevant time period prior to plaintiff's termination, the Embassy had no more than fourteen locally engaged staff, the Defense Attaché had two locally engaged staff, Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6, and there were ten diplomatic personnel (including the Defense Attaché) posted to the Embassy in Washington, D.C. Def.'s SOF ¶ 11; Pl.'s SOF ¶ 11.7
The diplomatic personnel, except for the Defense Attaché were hired, fired, and disciplined by Zambia's Ministry or Minister of Foreign Affairs, and their work assignments were assigned and monitored by the Minister of Foreign Affairs as well. Def.'s SOF ¶¶ 12-13; Pl.'s SOF ¶¶ 12-13. Diplomatic personnel were paid out of a budget established by the Minister of Foreign Affairs, and the Minister set their salaries, specified their methods of work, *170and regulated payroll practices. Def.'s SOF ¶¶ 13-14; Pl.'s SOF ¶¶ 13-14.
Members of the Embassy's locally engaged staff were hired and fired by the Ambassador. Def.'s SOF ¶ 7; Pl.'s SOF ¶ 7. The diplomatic heads of departments exercised day-to-day supervision over the staff: promulgating work rules, maintaining employment records, distributing work assignments, and handling disciplinary matters. Def.'s SOF ¶ 8; Pl.'s SOF ¶ 8. The diplomat generally in charge of locally engaged staff was the First Secretary (Administration). Def.'s SOF ¶ 8; Pl.'s SOF ¶ 8.
The Embassy proposed terms of employment for its locally engaged staff, and it exercised authority over support staff personnel matters. Def.'s SOF ¶ 9; see Pl.'s SOF ¶ 9.8 But staff salary had to be approved by Zambia's Minister of Foreign Affairs. Def.'s SOF ¶ 9; see Pl.'s SOF ¶ 9.
The Defense Attaché was hired, disciplined, and fired by Zambia's Ministry of Defense. Def.'s SOF ¶¶ 12-14; Pl.'s SOF ¶¶ 12-14. The Ministry of Defense assigned and oversaw the work performed by the Defense Attaché. Def.'s SOF ¶¶ 12-14; Pl.'s SOF ¶¶ 12-14. Within the office of the Defense Attaché, the Defense Attaché had authority-with notice to the Minister of Defense-to hire and fire his own locally engaged staff, which consisted of a driver and a secretary. Def.'s SOF ¶ 10; see Pl.'s SOF ¶ 10. The Defense Attaché also controlled his locally engaged staff members' work assignments and employment records, monitored their performance, disciplined them, and, in conjunction with the Minister of Defense, set their salaries. Def.'s SOF ¶ 10; see Pl.'s SOF ¶ 10. The Defense Attaché's locally engaged staff was paid out of the Defense Attaché's budget, Def.'s SOF ¶ 10; see Pl.'s SOF ¶ 10, and the Defense Attaché's compensation and conditions of service were governed by rules established by the Ministry of Foreign Affairs. Def.'s SOF ¶ 14; Pl.'s SOF ¶ 14.
The Embassy's locally engaged staff, including plaintiff, could be called upon to assist the Defense Attaché with tasks such as typing memoranda and checks. Def.'s SOF ¶ 10; see Pl.'s SOF ¶ 10.
III. Procedural Background
On June 20, 2010, plaintiff filed a charge of sex and age discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). Pl.'s Counter SOF ¶ 26; Def.'s Resp. SOF ¶ 26; see Ex. 26 to Pl.'s Opp. [Dkt. # 86-2]. The EEOC issued a decision on September 28, 2012, concluding that there was reasonable cause to believe that the Embassy discriminated against plaintiff based on her sex and her age when it discharged her, in violation of Title VII and the ADEA, and that it retaliated against her in violation of the ADEA. Pl.'s Counter SOF ¶ 29; Def.'s Resp. SOF ¶ 29; see Ex. 27 to Pl.'s Opp. [Dkt. # 86-3] ("EEOC Determination"). However, the EEOC concluded that there was insufficient evidence to establish that the Embassy retaliated against plaintiff in violation of Title VII. See EEOC Determination.
*171On March 18, 2013,9 plaintiff filed her initial complaint, alleging violations of Title VII and the ADEA. Compl. Plaintiff filed her first amended complaint on November 22, 2013, in which she added a DCWPCL claim. See 1st Am. Compl. ¶¶ 63-65.
On April 11, 2014, the Court dismissed plaintiff's amended complaint for lack of personal jurisdiction based on plaintiff's failure to perfect service on defendant in accordance with the Foreign Sovereign Immunities Act ("FSIA"). Barot v. Embassy of the Republic of Zambia , 11 F.Supp.3d 24, 32 (D.D.C. 2014). The Court denied plaintiff's motion for reconsideration on June 2, 2014. Barot v. Embassy of the Republic of Zambia , 11 F.Supp.3d 33, 36 (D.D.C. 2014). Plaintiff appealed the dismissal of her amended complaint, and the Court of Appeals reversed and remanded the case to "afford [plaintiff] ... the opportunity to effect service pursuant to 28 U.S.C § 1608(a)(3)." Barot v. Embassy of the Republic of Zambia , 785 F.3d 26, 29-30 (D.C. Cir. 2015) ; see also Mandate of United States Court of Appeals [Dkt. # 41].
After plaintiff perfected service, see Return of Service Aff [Dkt. # 52], defendant moved to dismiss the amended complaint on the grounds that it failed to state a claim upon which relief could be granted. Def.'s Mem. of Law in Supp. of Def.'s Mot. to Dismiss [Dkt. # 53-1]. In response, plaintiff filed a motion for leave to file a second amended complaint pursuant to Federal Rule of Civil Procedure 15, Mot. for Leave to File 2d Am. Compl. [Dkt. # 54], which the Court granted. Min. Order (Jan. 19, 2016).
Plaintiff filed a second amended complaint on January 19, 2016. 2d Am. Compl. [Dkt. # 60]. Count I alleges pay discrimination on the basis of gender in violation of Title VII. Id. ¶¶ 69-75. Count II alleges that plaintiff was terminated because of her age in violation of the ADEA. Id. ¶¶ 76-80. Count III alleges that she was retaliated against in violation of Title VII for making complaints to her employer regarding unequal pay and discrimination. Id. ¶¶ 81-86. Count IV alleges that defendant failed to pay plaintiff her owed wages in violation of the D.C. Wage Payment and Collection Law. Id. ¶¶ 87-90. On February 12, 2016, defendant filed an answer, which included a counterclaim for trespass to chattel against plaintiff. Answer [Dkt # 62] ¶¶ 103-08. Defendant voluntarily dismissed the counterclaim on February 26, 2016, Notice of Voluntary Dismissal [Dkt. # 64] after filing an amended answer on February 25, 2016. Am. Answer [Dkt. # 63].
Following discovery, plaintiff moved for partial summary judgment on her DCWPCL claim, Mot. for Partial Summ. J. [Dkt. # 75], and defendant filed a cross-motion for summary judgment on the same count. Def.'s Cross-Mot. for Partial Summ. J. [Dkt. # 78]. The Court granted defendant's cross-motion for summary judgment. See Barot , 264 F.Supp.3d at 287. Defendant also filed a motion for summary judgment on Counts I, II, and III on March 9, 2017. Def.'s Mot. The motion has been fully briefed.10
STANDARD OF REVIEW
Summary judgment is appropriate "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 *172of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505 ; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the summary judgment motion.' " Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).
ANALYSIS
I. A dispute of fact exists as to whether the Embassy is an "employer" for purposes of Title VII and the ADEA.
Title VII applies to any employer who "has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). Under the ADEA, the definition of an "employer" is identical, except that the person or entity must have "twenty or more employees." 29 U.S.C. § 630(b).11
"[T]he threshold number of employees for application of Title VII is an element of a plaintiff's claim for relief." Arbaugh v. Y & H Corp. , 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The Embassy argues that it is not an employer for purposes of Title VII or the ADEA because it employed fewer than fifteen people (or twenty under the ADEA), see Def.'s Mem. at 13-19, and it seeks the entry of judgment in its favor on that basis.
The parties do not dispute that during the relevant time period, the Embassy had no more than fourteen locally engaged staff. Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6. But plaintiff contends that the ten diplomatic personnel posted to the Embassy, as well as the Defense Attaché's two locally engaged staff, should be counted as Embassy employees for the purpose of determining whether the Embassy is subject to the requirements of Title VII and the ADEA. See Pl.'s Opp. at 5. This legal conclusion turns upon the application of legal principles to disputed facts, and the Court cannot grant summary judgment on this issue.
A. The Embassy does not meet the employee requirement under the payroll method.
The Supreme Court addressed the question of how to determine whether "an employer 'has' an employee on any working day" for the purpose of Title VII, and *173it determined that the relevant inquiry is whether "the employer has an employment relationship with the individual on the day in question." Walters v. Metro. Educ. Enters., Inc. , 519 U.S. 202, 206, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997). "This test is generally called the 'payroll method,' since the employment relationship is most readily demonstrated by the individual's appearance on the employer's payroll." Id. ; see id. at 207, 117 S.Ct. 660 (observing that the payroll method has also been adopted by the EEOC under the ADEA). But, the Court also noted that "an individual who appears on the payroll but is not an 'employee' under traditional principles of agency law, would not count toward the 15-employee minimum." Id. at 211, 117 S.Ct. 660 (internal citation omitted).
Here, neither party has pointed the Court to Embassy payroll records for use in applying the "payroll method." The Embassy did supply a document specifying the monthly wages paid to the fourteen members of its locally engaged staff, see Ex. 9 to Def.'s Mot. [Dkt. # 80-4], and plaintiff does not dispute that the Embassy employed the fourteen people, but nothing in the document establishes which entity actually paid the staff. But even if those fourteen are counted, plaintiff has not come forward with any evidence that the other workers-the ten diplomats and two Defense Attaché staff members-were also on the Embassy's payroll.
Plaintiff does not dispute that the Defense Attaché had the authority to set its locally engaged staff's salaries, and that his two staff members were "paid from the Defense Attaché's budget." Def.'s SOF ¶ 10; see Pl.'s SOF ¶ 10. And plaintiff does not dispute that Zambia's Minister of Foreign Affairs had the authority to set the salaries of the ten diplomats, and that they were "paid from a budget set by Zambia's Minister of Foreign Affairs." Def.'s SOF ¶¶ 13-14; Pl.'s SOF ¶¶ 13-14. Since plaintiff has not rebutted these facts with any evidence demonstrating that the staff members or diplomatic personnel were on the Embassy's payroll, the Court concludes that these individuals cannot be considered employees of the Embassy for purposes of meeting the fifteen or twenty person statutory requirement under the payroll method.
B. The Embassy does not meet the employee requirement under general agency principles.
An individual's appearance on the employer's payroll is only one tool courts may use to determine if an employment relationship exists. Courts are also generally guided by the principles of agency law. See Walters , 519 U.S. at 211-12, 117 S.Ct. 660 ; see also Spirides v. Reinhardt , 613 F.2d 826, 831 (D.C. Cir. 1979) (directing courts to apply general principles of agency law when analyzing if an individual is an employee or independent contractor under Title VII). The most important factor to review is "the extent of the employer's right to control the 'means and manner' of the worker's performance." Spirides , 613 F.2d at 831. Plaintiff fares no better under this test.
Under the "control test" as plaintiff calls it, plaintiff argues that the diplomatic personnel and the Defense Attaché's locally engaged staff should be counted as Embassy employees because they "controlled the essential elements of [her] employment." See Pl.'s Opp. at 5. But the question is not who controlled plaintiff's work; to establish that others working at the Embassy were employees of the Embassy, plaintiff must show who controlled their work. Since there is no evidence that the Embassy exercised any control over the diplomatic personnel or Defense Attaché's staff, it cannot be considered to be their employer under agency principles either.
*174C. There is a genuine issue of material fact on the question of whether the Embassy and the Ministry of Foreign Affairs can be considered plaintiffs "single employer" for purposes of the statutory employee requirement under Title VII and the ADEA.
Plaintiff also argues that the Embassy meets the employee requirement under Title VII and the ADEA based on two other theories: first, that the Ministry of Foreign Affairs and the Embassy are an integrated enterprise, or a "single employer," so the Ministry's employees should be aggregated with the Embassy's locally engaged staff for purposes of the statutory requirement; and second, that the Ministry of Foreign Affairs and the Office of the Defense Attaché, through their diplomatic personnel and staff, controlled plaintiff's employment, so she should be deemed "jointly employed" by all three entities, and their employees should be aggregated for purposes of the statutory calculation. See Pl.'s Opp. at 5-6. Since plaintiff's showing on the "single employer" theory is enough to preclude summary judgment in favor of defendant on this issue, the Court need not address the alternative theory at this time.
To determine whether two separate entities can be considered a "single employer," courts examine four factors: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations and personnel, and (4) common ownership and financial control. See Radio & Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile, Inc. , 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) ; EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 625 (D.C. Cir. 1997) (utilizing the four-part test as originally described under the National Labor Relations Act in the context of the Americans with Disabilities Act); Allen v. McEntee , Nos. 92-0776, 92-2151, 1993 WL 121513, at *7 (D.D.C. Apr. 5, 1993) (applying the integrated enterprise test in the context of Title VII and the ADEA for purposes of aggregating employees to meet statutory definition), aff'd , 44 F.3d 1031 (D.C. Cir. 1994) ; see also Dean v. Am. Fed'n of Gov't Emps., Local 476 , 509 F.Supp.2d 39, 56 (D.D.C. 2007) (concluding local union did not meet Title VII's employee requirement because the local and national union's operations were not sufficiently interrelated to aggregate number of employees); Brug v. Nat'l Coal. for Homeless , 45 F.Supp.2d 33, 39 (D.D.C. 1999) (declining to aggregate employees, but recognizing that it is necessary "[i]n order to ensure that employers do not circumvent the strictures of Title VII through clever legal maneuvering").
While the Court must take all the circumstances of the case into consideration, see Local No. 627, Int'l Union of Operating Eng'rs, AFL-CIO v. NLRB , 518 F.2d 1040, 1045-46 (D.C. Cir. 1975)rev'd on other grounds , 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976), not all four factors must be satisfied for the Court to find a "single employer" under the test. Id. ; see also RC Aluminum Indus., Inc. v. NLRB , 326 F.3d 235, 239 (D.C. Cir. 2003). Ultimately, the single employer test is characterized by the absence of an "arm's length relationship found among the integrated companies" or organizations. Local No. 627 , 518 F.2d at 1046.12
*175Plaintiff has presented enough evidence to create a genuine issue of material fact on the question of whether the Embassy and the Ministry of Foreign Affairs can be considered plaintiff's "single employer," and therefore the issue of whether the Embassy meets the statutory employee requirement under Title VII and the ADEA cannot be decided as a matter of law.
1. Interrelation of Operations
When considering the first factor of the four part test, interrelation of operations, the NLRB looks to see whether the following seven functions are combined as indicia of interrelatedness: (1) accounting records; (2) bank accounts; (3) lines of credit; (4) payroll preparation; (5) switchboards; (6) telephone numbers; or (7) offices. Tewelde , 89 F.Supp.2d at 17 ; see W. Union Corp. , 224 N.L.R.B. 274, 277 (1976). Plaintiff has not provided the Court with much evidence of commonality between the Embassy and Ministry of Foreign Affairs.
Plaintiff argues instead that the two entities are interrelated because the "work of the locally engaged staff 'employed' by [d]efendant and the diplomatic personnel 'employed' by the Ministry of Foreign Affairs have interrelated operations." Pl.'s Opp. at 6. She also asserts in her opposition that they all "work out of the same location." Id. While plaintiff does not point to anything in the record that would verify this contention, it is undisputed that the diplomatic personnel and locally engaged staff were "posted" to the same Embassy located in Washington, D.C. Def.'s SOF ¶¶ 6, 11; Pl.'s SOF ¶¶ 6, 11. But plaintiff's other argument is conclusory and not supported by any evidence in the record.
The Court notes that Mbewe testified that "the embassy is ... a unit under the ministry of foreign affairs," Ex. 11 to Def.'s Mot. [Dkt. # 80-5] at 25:20-27:7,13 and it is undisputed that the Ministry had a role in setting the salaries and conditions of employment of the locally engaged staff as well as the diplomatic personnel. See Def.'s SOF ¶¶ 9, 13; Pl.'s SOF ¶¶ 9, 13. Thus, to the extent plaintiff has presented evidence of interrelated operations, it is very weak.
2. Common Management
There is no evidence of common management between the Embassy and the Ministry of Foreign Affairs. While the Ministry is part of Zambia's government, see Mbewe Dep. at 25:20-26:1 plaintiff does not provide the Court with any information about who runs the Ministry, let alone whether any of those individuals have their hands in the Embassy's affairs. Nor does she proffer any evidence concerning the management structure at the Embassy. Although the parties do not dispute that both the Ambassador and the diplomatic heads of departments had some control over the Embassy's locally engaged staff, Def.'s SOF ¶¶ 7-8; Pl.'s SOF
*176¶¶ 7-8, the Court has been told nothing about how the Embassy itself was managed on a daily basis.
Thus, plaintiff has not pointed to evidence in the record that would rebut defendant's contention that the Ministry was not involved in the management of Embassy affairs and that "locally engaged staff were to be managed exclusively by each mission." See Def.'s Mem. at 17; Def.'s Reply at 5.14
3. Common Ownership and Financial Control
There is very little evidence in the record with regard to the common ownership or financial control of the Embassy by the Ministry of Foreign Affairs. While the Embassy is a unit under the Ministry of Foreign Affairs, it is unclear whether the relationship is a financial one or how the Embassy is funded. Plaintiff has not pointed the Court to any evidence to demonstrate that the entities are financially interrelated other than the undisputed fact that the salaries of the locally engaged staff had to be approved by the Minister of Foreign Affairs. See Def.'s SOF ¶ 9; Pl.'s SOF ¶ 9.
4. Centralized Control of Labor Relations and Personnel
This brings the Court to the most critical factor-the centralized control of labor relations and personnel-which is accorded the greatest weight. See Sears v. Magnolia Plumbing, Inc. , 778 F.Supp.2d 80, 84 (D.D.C. 2011) ; Woodland v. Viacom, Inc. , 569 F.Supp.2d 83, 88 (D.D.C. 2008). The amount of control required to meet the test of centralized control is "actual and active control of day-to-day labor practices." Tewelde , 89 F.Supp.2d at 18, citing Fike v. Gold Kist , Inc. , 514 F.Supp. 722, 727 (N.D. Ala. 1981) ; Woodland , 569 F.Supp.2d at 88.
It is undisputed that "[c]onditions of employment of locally engaged staff, such as salary, were proposed by the Embassy and approved by Zambia's Minister of Foreign Affairs." Def.'s SOF ¶ 9; Pl.'s SOF ¶ 9. Moreover, the diplomatic personnel posted to the Embassy on behalf of the Ministry of Foreign Affairs had the authority to hire, fire, and discipline locally engaged staff, and the diplomatic heads of departments gave the staff members work assignments and exercised daily supervision over their work. Def.'s SOF ¶¶ 7-8; Pl.'s SOF ¶¶ 7-8; see Tewelde , 89 F.Supp.2d at 18 (finding that there was no evidence of centralized control of labor relations where the State Department did not hire, fire, set wages, working hours, working conditions, or benefits). And plaintiff could not receive her paycheck until it was signed by Mbewe. See Barot Dep. at 20:17-21:7.
Defendant argues that the Ministry had no role in Embassy personnel matters, and it points to a letter sent from a Director at the Ministry to the Ambassador to the U.S., stating that personnel matters should be addressed at the individual mission level. Ex. 12 to Def.'s Mot. [Dkt. # 80-5] ("Finally, support staff in Missions abroad should not be encouraged to write to this Ministry over personnel matters which can and should be addressed by respective Missions who are their employers."); see Def.'s Mem. at 17; Def.'s Reply at 5. However, defendant fails to mention that in the remainder of the letter, the Director goes on to advise the Ambassador on how to deal with the employee inquiry being discussed. Ex. 12 to Def.'s Mot. [Dkt. # 80-5]. The Director also encourages the Embassy *177to "ensure that the general conditions of employment for all the Local Staff are standardized." Id. So the letter supports more than one inference.
More important, while these factual circumstances relate to control over employees in general, the "focal point of the Court's inquiry ... is the degree of control an entity has over the adverse employment decision on which the Title VII suit is based." Tewelde , 89 F.Supp.2d at 19 (internal quotation marks omitted). Defendant maintains that the Ministry of Foreign Affairs "was in no way involved in the adverse employment decisions" in this case. Def.'s Reply at 5. But it is undisputed that Mbewe, Mbula, Minister Chioza, and the Ambassador-all of whom were characterized by defendant as employees of the Ministry, and not the Embassy-see Def.'s Mem. at 17-18, were involved in plaintiff's placement on administrative leave and her ultimate termination. See Def.'s SOF ¶¶ 35-37; Pl.'s SOF ¶¶ 35-37.
So, although there is no evidence that anyone located in the Ministry of Foreign Affairs in Zambia had any role in the adverse employment actions at issue in this case, the diplomatic personnel who worked on behalf of the Ministry in Washington, D.C. were directly involved in the actions being challenged in this case. Indeed, defendant acknowledges in its supplemental brief that the diplomats "manage the locally engaged staff in Washington, D.C.," and that "for that limited task, they wear a different 'hat' and act in their capacity as employer and manager of the clerical and administrative personnel." Suppl. Mem. in Resp. to Ct.'s Order [Dkt. # 91] ("Def.'s Suppl. Mem.") at 5. This is enough to create a genuine issue of material fact on the question of whether the Ministry exercises controls over Embassy personnel matters.
The Court recognizes that the "single employer" four-factor test may not perfectly capture the integration of two governmental entities. But, since the last factor addressed by the Court is generally considered the most important, the Court finds that there is enough evidence to create a genuine issue of material fact as to whether the Ministry of Foreign Affairs is an integrated enterprise or a "single employer" for purposes of Title VII and the ADEA. If that factual question were resolved in plaintiff's favor, at least nine diplomats15 posted to the Embassy would be included in the total number of Embassy employees for purposes of meeting the statutory requirement.16 Therefore, the *178Court will not grant summary judgment to defendant on this basis, and it must address the merits of plaintiff's claims.
II. The Court will grant defendant's motion on plaintiffs ADEA claim.
Plaintiff alleges that the Embassy discriminated against her on the basis of her age in violation of the ADEA. The ADEA protects "individuals who are at least 40 years of age." 29 U.S.C. § 631(a). It provides:
It shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.
§ 623(a)(1) (emphasis added). In light of the language of the statute, a plaintiff bringing a disparate treatment claim under the ADEA "must prove by a preponderance of the evidence (which may be *179direct or circumstantial), that age was the 'but-for' cause of the challenged employer decision." Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ; see also DeJesus v. WP Co. , 841 F.3d 527, 532 (D.C. Cir. 2016).
In the absence of direct evidence of discrimination, which is the case here, ADEA claims are analyzed under the three-step burden-shifting framework applicable to claims brought under Title VII that was announced in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Paquin v. Fed. Nat'l Mortg. Ass'n , 119 F.3d 23, 26 (D.C. Cir. 1997) ; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (applying the McDonnell Douglas framework to ADEA claim since neither party disputed its application). Under that formulation, a plaintiff must first make out a prima facie case by showing that she "(i) belongs to the protected age group, (ii) was qualified for the position, (iii) was terminated and (iv) was replaced by a younger person." Paquin , 119 F.3d at 26. If the plaintiff succeeds, McDonnell Douglas then shifts the burden to the defendant employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Id. , citing McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817. "This burden is one of production, not persuasion; it 'can involve no credibility assessment.' " Reeves , 530 U.S. at 142, 120 S.Ct. 2097, quoting St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the defendant comes forward with a reason, then the plaintiff must produce evidence showing that the defendant's proffered explanation is merely a pretext for discrimination. Paquin , 119 F.3d at 26, citing McDonnell Douglas , 411 U.S. at 804, 93 S.Ct. 1817.
However, at the summary judgment stage, where an employee "has suffered an adverse employment action and an employer has asserted a legitimate, nondiscriminatory reason for the decision, the district court need not-and should not -decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas ." Brady v. Office of Sergeant at Arms , 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). Rather, the "operative question" is whether "the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee." Id. The Court must then examine the totality of the evidence, including "(1) plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff ... or any contrary evidence that may be available to the employer ...." Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1289 (D.C. Cir. 1998).
Here, defendant has offered legitimate, non-discriminatory grounds for its decision to place plaintiff on administrative leave and ultimately fire her. It asserts that plaintiff displayed a bad attitude towards her work and refused to perform her "secretarial duties" after her request for a raise was turned down, and it points to plaintiff's memorandum admonishing the Embassy to purchase new stocks of hard-copy payment voucher and backing sheet forms. See Def.'s Mem. at 22-23; Brief on the Case of Dolores Barot at 2-3; Mbewe Dep. at 29:14-30:3. Defendant also maintains that plaintiff deleted the payment voucher template from her computer. See Def.'s Mem. at 23; Brief on the Case of Dolores Barot at 2; Mbewe Dep. at 30:4-31:15. This combined rationale shifts the burden back to plaintiff to demonstrate, based on all of the evidence in the record, *180that the Embassy's asserted reason was not the actual reason for the adverse action, and that defendant intentionally discriminated against her on the basis of her age. See Brady , 520 F.3d at 494 (citations omitted).
A. Plaintiff made out a prima facie case to shift the burden to defendant under the McDonnell Douglas test.
The elements of a prima facie case were established: first, there is no dispute that plaintiff is a member of a protected class and that she was terminated from her job. See Def.'s SOF ¶¶ 4, 42; Pl.'s SOF ¶¶ 4, 42; see Def.'s Mem. at 22; Pl.'s Opp. at 7. Second, plaintiff's eleven-year tenure at the Embassy and her receipt of regular pay increases-which she could earn only if her performance was satisfactory to her employer-show that she was qualified for her position. See Paquin , 119 F.3d at 27 ("[W]e believe that [plaintiff's] twenty-year tenure at Fannie Mae and his series of promotions within the Department suffice to show that he was qualified for his position."); see also Def.' s SOF ¶ 21; Pl.'s SOF ¶ 21. And, the parties do not dispute that plaintiff was replaced by someone younger than she was, although there is a dearth of specifics in the record. See Def.'s SOF ¶ 46; Pl.'s SOF ¶ 46. No employment records for the replacement have been introduced, but plaintiff testified that the replacement was "in the range of 30 to 40." Barot Dep. 308:8-11.
B. Defendant has come forward with a legitimate, non-discriminatory basis for its actions.
Defendant has come forward with evidence that it terminated plaintiff based on her resentful attitude and her refusal to perform ordinary secretarial duties in the wake of her unsuccessful attempt to get a raise on September 9, and based on her alleged deletion of the computerized forms that evening. Mbewe testified that plaintiff was placed on administrative leave because "she didn't want to do her work ... after her demand for the [pay] increment," Mbewe Depo. at 39:16-40:6, and that she was "asking for special treatment for conditions that is supposed to be standard for everyone." Id. at 40:22-41:18. He attributed the decision to the way she was "conducting herself," in that she was "refusing to do ... assignments given to do," as well as to her deletion of the payment voucher template. Id. at 29:14-30:8; see also Def.'s Mem. at 23 ("Mbewe ... believed Barot had deleted payment vouchers ... from her computer, and that this-together with Barot's refusal to do her work and her attitude toward her duties-caused Mbewe together with Mbula to place Barot on administrative leave, and also caused the Ambassador ultimately to terminate Barot.").
Plaintiff's request for a raise was based, in part, on her claim that she had saved the Embassy money by eliminating the need for a particular paper form. There is no dispute that immediately after the request was denied, plaintiff fired off a warning to her supervisors to order more forms. Def.'s SOF ¶ 32; Pl.'s SOF ¶ 32; Sept. 9 Barot Memo. The memorandum suggested that she would no longer use the computerized forms that she had previously created and for which she apparently still felt she deserved financial compensation. See Sept. 9 Memo; Barot Dep. at 157:12-17 ("Q: Why did you tell them that they should buy the forms ...? A: Because I want them to know that they are saving a lot by using what I have done and what I had formatted in my computer. They are saving a lot."); id. at 124:4-12 ("Q: So you were telling them they couldn't use your form anymore?" "A: No. They can still use. But up to the time-what I was thinking is-I was thinking that maybe they would say: Okay, we will give you your raise, so that we can-you can *181continue with what you are doing. Maybe we will not buy-what will be the cost of what we will be buying we will just give it to you.").
After her supervisors received this memo, and after they came to the conclusion that plaintiff had deleted the form she had created from her computer, they placed her on administrative leave. The letter informing plaintiff of her leave status stated:
Further to the meeting between First Secretary (Accounts), First Secretary (Political and Administration) and yourself, regarding matters pertaining to your duties, and after serious consideration of the circumstances surrounding your actions thereafter, it has been decided to place you on indefinite administrative leave with immediate effect pending review of your case.
Administrative Leave Letter. The termination letter was similar:
I write to inform you that following the review of the circumstances that led to your being placed on administrative leave on 10th September, 2009, the Embassy has decided that your services are no longer required by the Government of the Republic of Zambia.
Termination Letter.
There is no dispute that plaintiff understood that the letters were referring to her transmission of the memorandum after the September 9 meeting. Def.'s SOF ¶ 38 ("Barot understood the September 10 letter's reference to 'circumstances surrounding your actions thereafter' to mean the reaction of Embassy diplomatic personnel to the Barot 0-9-09 Memo."); Barot Dep. 180:3-13 ("I was thinking that they review my case, which is me having submitted the memo request for the purchase of backing sheets."); id. at 133:14-20 (acknowledging that her "understanding" of "circumstances surrounding your actions thereafter" was "the memo that [she] gave to Mr. Mbula for the request of the payment vouchers and backing sheets."); id. at 159:21-161:14 ("That the serious actions surrounding-serious action that I made after our meeting was my submission of the request for purchase of forms."); id. at 154:12-20 (reading from Barot day-planner entries: "For serious action day after, which was submitting memo request for purchase of forms, backing sheets and payment vouchers. Just a proof of my claim that the Embassy saves a lot."); id. at 383:16-19 ("Q. So you're attributing your being kicked out of the Embassy to their reaction to your memo request? A. Yes."); see also Pl.'s SOF ¶ 38 ("While Ms. Barot believes that the letter is referencing her September 9, 2009 memorandum, Ms. Barot believes that the reference was a pretextual reason for placing her on administrative leave.").
The Embassy has introduced evidence that the termination was also predicated on the missing computer template. See Brief on the Case of Dolores Barot, at 2-3;17 Mbewe Dep. at 30:4-31:15 ("Q. So you *182believe that Ms. Barot deleted payment vouchers that were programmed on her computer? A. Yes.").
This evidentiary showing shifts the burden back to plaintiff under the McDonnell Douglas test.
C. Plaintiff has presented some evidence that one of the stated reasons for her termination was pretextual.
A plaintiff can demonstrate that the employer's explanation for his discharge was pretextual by providing evidence from which a reasonable jury could find that the employer's proffered, lawful reasons for acting are "unworthy of credence." Reeves , 530 U.S. at 143, 120 S.Ct. 2097, quoting Tx. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Showing pretext, though, "requires more than simply criticizing the employer's decisionmaking process." Hairston v. Vance-Cooks , 773 F.3d 266, 272 (D.C. Cir. 2014). It is not sufficient to "show that a reason given for a job action [was] not just, or fair, or sensible;" nor is it sufficient to challenge "the 'correctness or desirability' of [the] reasons offered." Fischbach v. D.C. Dep't of Corrs. , 86 F.3d 1180, 1183 (D.C. Cir. 1996), quoting Pignato v. Am. Trans Air, Inc. , 14 F.3d 342, 349 (7th Cir. 1994).
Courts have suggested that a plaintiff may point to "changes and inconsistencies in the stated reasons for the adverse action" as a means of showing pretext. Brady , 520 F.3d at 495 n.3. "[T]he employee may attempt to demonstrate that the employer is making up or lying about the underlying facts that formed the predicate for the employment decision." Id. at 495. And, a plaintiff "might also establish pretext with evidence that a factual determination underlying an adverse employment action is egregiously wrong." Burley v. Nat'l Passenger Rail Corp. , 801 F.3d 290, 296 (D.C. Cir. 2015).
In her opposition to the summary judgment motion, plaintiff contends that there is a genuine dispute as to whether defendant's proffered reason for terminating her-namely, the "circumstances" after the September 9 meeting about her secretarial duties and request for a salary increase-was the true reason for her termination. See Pl.'s Opp. at 10-13. She advances two main arguments: (1) that defendant's shifting reasons for its decision to terminate her is evidence of discrimination, and (2) that defendant's belief that she deleted the computer files was not honestly and reasonably held. See Pl.'s Opp. at 10-13.
1. Shifting Explanations for Plaintiff's Termination
Plaintiff argues that the pretextual nature of defendant's explanation can be inferred from the fact that defendant offered "shifting" explanations for her termination. See Pl.'s Opp. at 10-11. She points to the September 10 letter placing her on administrative leave, which states that defendant was doing so "after serious consideration of the circumstances *183surrounding [her] actions" after the meeting "regarding matters pertaining to [her] duties." Administrative Leave Letter. That same day, Chioza informed the Ambassador that plaintiff had been placed on administrative leave, stating that there had been "misunderstandings" with plaintiff, and that the "matters were over salary increase and failure on the part of Ms. Barot to carry out her routine work." Ex. 23. to Def.'s Mot. [Dkt. # 80-5]. The November 5, 2009 termination letter informed plaintiff that "following the review of the circumstances that led to [her] being placed on administrative leave ... the Embassy has decided that [her] services are no longer required ...." Termination Letter.
Plaintiff notes that she was paid one month's salary at the time of her termination, and that she would not have been eligible for the payment under her Employment Agreement if she had been terminated for a disciplinary reason. Pl.'s Opp. at 10. She argues that all of her employer's contemporaneous statements and actions are consistent with a non-disciplinary reason for the termination, and that defendant did not "reverse course and state Ms. Barot was terminated for a disciplinary reason," that is, for deleting computer files, until during the later administrative process. Id. at 11.
But the language used in the 2009 documents was quite broad, and the references to the "circumstances" on September 9 fairly include both the memorandum and the deletion of the computer files. So plaintiff has not pointed to evidence of "changes or inconsistencies" in defendant's stated reasons. Moreover, while the Employment Agreement required the Embassy to give plaintiff one month's notice or one month's salary in lieu of notice if she was fired for a non-disciplinary reason, it did not bar the Embassy from doing so if she was fired for a disciplinary reason. See Ex. 1 to Def.'s Mot. [Dkt. # 80-3] at 5 ("Your employment may be terminated for reasons other than disciplinary action .... In such a case, you will be given one (1) month's notice or paid (1) month's salary in lieu of notice.").
2. Defendant's Honest and Reasonable Belief
Plaintiff also argues that even if defendant fired her based on the belief that she had deleted the computerized files, that belief was not honestly and reasonably held. Pl.'s Opp. at 11-12. The Court concludes that while plaintiff has not come forward with evidence that would lead a jury to conclude that her supervisors did not sincerely believe she had deleted the file, she has presented some evidence that their belief was not reasonable.
"Once the employer has articulated a non-discriminatory explanation for its action ... the issue is not the correctness or desirability of [the] reasons offered ... [but] whether the employer honestly believes in the reasons it offers." Fischbach , 86 F.3d at 1183 (internal quotation marks omitted). "If the employer's stated belief about the underlying facts is reasonable in light of the evidence ... there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the underlying facts." Brady , 520 F.3d at 495.
In evaluating the employer's stated reason, the Court must assess whether the stated reason is both "honest" and "reasonable." DeJesus , 841 F.3d at 534.
To be clear, courts should not evaluate the reasonableness of the employer's business decisions, such as whether it made financial sense to terminate an employee who generated substantial review; we are not 'a super-personnel department that reexamines an entity's *184business decisions. Rather, the factfinder is tasked with evaluating the reasonableness of the decisionmaker's belief because honesty and reasonableness are linked: a belief may be so unreasonable that a factfinder could suspect it was not honestly held.
Id.
The evidence in the record establishes that the decision-makers honestly believed that plaintiff was refusing to do her routine secretarial duties and that she had deleted the computerized forms. After the meeting, in which plaintiff had agreed to return to her secretarial duties, plaintiff immediately informed her supervisors that the Embassy would need to purchase the paper forms that she had previously devised a computerized form to replace. Mbewe interpreted this as a threat to refuse to use the computerized forms unless the Embassy compensated her for creating them. And plaintiff admitted as much in her deposition. She testified that her job as a secretary only involved paper forms, and that she wanted defendant "to know that the [computerized] one that [she] did was very useful. They were saving, because ... of what [she] did. So [she] had to be compensated for what [she] did." BarotDep. at 123:18-124:3. Concerned by plaintiff's reaction following the meeting, Mbewe logged on to plaintiff's computer to gain access to the electronic versions of the forms. After he looked for the forms in their usual spot and did not find them, Mbewe concluded that plaintiff had deleted them and promptly reported his findings to his supervisor, Mbula. Based on these circumstances, the Embassy decided to place plaintiff on administrative leave and then to terminate her.
While plaintiff has not pointed to any facts that would show that these witnesses have been dishonest about their thoughts that evening, she has come forward with some evidence that gives rise to a genuine dispute of fact concerning the reasonableness of their belief that she deleted the form. Mbewe testified that he and Mbula looked for the voucher file and that since they were unable to locate it, they believed plaintiff had deleted it. But Mbewe admitted that they "never talked to her" and "never asked her" if she had deleted the voucher template, or if she had just moved the file, and they did not search the computer to ascertain whether there was a log indicating that a file had been erased. See Mbewe Dep. at 49:5-15. Meanwhile, plaintiff testified in her deposition and averred in a declaration that she did not delete the file and that she actually used the voucher template on the morning of September 10 to prepare a payment voucher for the Ambassador's car. See Barot Dep. at 112:10-22; Ex. 28 to Pl.'s Opp., Aff. of Dolores Barot [Dkt. # 86-4] ("Barot Aff") ¶ 1. She insists that if Mbewe had just spoken to her, she "would have shown [the file] to him, as she was using the file the morning of her termination." Pl.'s Opp. at 12.
The Court could find that these concerns relate to the quality of defendant's business judgment and decision making, which ordinarily is not a basis to find the employer's reasons to be pretextual. But there is case law that holds that if a reasonable jury could find that there is something deficient or "fishy" about the procedure that the employer used in subjecting plaintiff to an adverse employment action, it might question whether defendant's conduct was a "reasonably objective assessment of the circumstances or, instead, an inquiry colored" by discrimination. See Mastro v. Potomac Elec. Power Co. , 447 F.3d 843, 857 (D.C. Cir. 2006) (holding that there was evidence from which a reasonable jury could conclude that defendant's stated reasons for terminating him were pretextual, particularly in light of record evidence that the investigation, which was central to and culminated in plaintiff's termination, was flawed and *185unfair), quoting Fischbach , 86 F.3d at 1184.18
In light of that authority, the Court concludes that plaintiff has identified some grounds for a jury to question whether the supervisors' belief that she deleted the computerized voucher template was objectively reasonable, even if it was honestly held. Therefore, she has adduced some evidence that could support a finding that this aspect of the Embassy's stated non-discriminatory rationale was not an actual reason for plaintiff's termination.
But the question to be resolved at this stage is whether, based on an examination of the entire record, including the evidence relied upon to establish the prima facie case, the plaintiff has adduced sufficient evidence to enable a reasonable jury to conclude that the employer's legitimate rationale was not the actual reason, "and that the employer intentionally discriminated against the employee." Brady , 520 F.3d at 494. Given the combination of reasons proffered by the employer, and the absence of any other evidence of discriminatory intent, the Court concludes that she has not.
D. A reasonable juror could not find, based on this record in its entirety, that plaintiff was fired "because of" her age.
Does the existence of facts that might lead a jury to question the adequacy of the Embassy's investigation into the missing file preclude the entry of summary judgment for defendant in this case? The D.C. Circuit has observed:
In an appropriate case, the factfinder's disbelief of the reasons put forward by the defendant will allow it to infer intentional discrimination. Although rebuttal evidence alone will not always suffice to permit an inference of discrimination, we do not routinely require plaintiffs to submit evidence over and above rebutting the employer's stated explanation in order to avoid summary judgment.
DeJesus , 841 F.3d at 535 (internal citations, edits, and quotation marks omitted); see also id. (observing that "[t]here is no easy answer" to what additional showing of intentional discrimination a plaintiff must make to survive summary judgment once there is sufficient cause to doubt the employer's proffered reason). However, in the Court's view, this is a case where the addition of the rebuttal evidence to the rest of the record does not suffice to support an inference of discrimination.
The Supreme Court has emphasized that "although the McDonnell Douglas presumption shifts the burden of production to the defendant, 'the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.' " Hicks , 509 U.S. at 507, 113 S.Ct. 2742 (emphasis in original) (internal edits omitted), quoting Burdine , 450 U.S. at 253, 101 S.Ct. 1089.19 And while "a *186plaintiff's prima facie case, combined with sufficient evidence to find the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated," Reeves , 530 U.S. at 148, 120 S.Ct. 2097, the Court has cautioned: "[t]his is not to say that such a showing by the plaintiff will always be adequate" to establish liability. Id. (emphasis in original).
Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.
Id.
Here, plaintiff has met the bare bones requirements for a prima facie case, and she put forward a reason why a jury could question the reasonableness, if not the veracity, of one portion of the Embassy's two-pronged rationale for terminating her. But putting aside this attack on the quality of the supervisors' investigation, the record remains devoid of any evidence of discriminatory animus.
Plaintiff has pointed to no explicit statements, no sly hints, and no ambiguous remarks or circumstances that could be interpreted as a reference or a reaction to her age. There is no evidence of this sort at all. The undisputed facts are that the Embassy took no steps to discipline or to fire plaintiff until September 9, 2009, and even that day, nothing happened until after the meeting concerning plaintiff's salary-which the supervisors thought had ended amicably-was over. It was plaintiff who would not let the matter go, and it was her communication refusing to continue to utilize the computerized forms-regardless of whether or not she subsequently deleted them-that set off the chain of events that followed. Plaintiff has asserted that the concerns her supervisors have expressed were pretextual. See Pl.'s Opp. at 12 ("Defendant's supposed belief also immediately provokes a suspicion of pretext."); Pl.'s SOF ¶ 38 ("While Ms. Barot believes that the letter is referencing her September 9, 2009 memorandum, Ms. Barot believes that the reference was a pretextual reason for placing her on administrative leave."). But she has introduced no evidence to show that her supervisors did *187not honestly and reasonably believe that she had a chip on her shoulder-that she did not intend to let the salary issue go, and that she harbored continuing resentment based on her own assessment of her economic value to the Embassy. So one of the stated grounds for her termination has been shown to have been both honestly and reasonably believed.20
Under the ADEA, plaintiff must prove by a preponderance of the evidence that she would not have been fired "but for" her age. Gross , 557 U.S. at 176, 129 S.Ct. 2343. Here, the record includes undisputed evidence of at least one reasonable basis for the employer's action and absolutely no evidence that age played a role beyond the circumstance that the person who was ultimately hired after plaintiff was gone was younger than she was. Because plaintiff has not introduced sufficient evidence to carry her burden to establish discriminatory intent at the end of the day, the Court will grant summary judgment in favor of defendant on the ADEA claim.
III. The Court will grant defendant's motion on plaintiffs Title VII retaliation claim.21
Title VII protects employees from discrimination "with respect to ... compensation" based on protected characteristics, such as an individual's sex. 42 U.S.C. § 2000e-2(a)(-). Further, it makes it unlawful for an employer to discriminate against an employee in retaliation for opposing or reporting "any practice made an unlawful employment practice" by Title VII. 42 U.S.C. § 2000e-3(a). To prove a Title VII retaliation claim, a plaintiff must demonstrate that "the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Tx. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 352, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013).
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that she engaged in activity protected by Title VII, that she was subjected to an adverse action by her employer, and that there is a causal link between the protected activity and the adverse employment action. Jones v. Bernanke , 557 F.3d 670, 677 (D.C. Cir. 2009). "Evaluation of Title VII retaliation claims follows the same burden-shifting template as discrimination claims." Holcomb v. Powell , 433 F.3d 889, 901 (D.C. Cir. 2006) ; see also Jones , 557 F.3d at 677-79. Since the Court has already established that defendant has put forward a legitimate, non-retaliatory reason for terminating plaintiff, the question the Court must answer is whether plaintiff's evidence creates a material dispute on the ultimate issue of retaliation. See Jones , 557 F.3d at 677-79. At this *188stage, "the court reviews each of the three relevant categories of evidence-prima facie, pretext, and any other-to determine whether they 'either separately or in combination' provide sufficient evidence for a reasonable jury to infer retaliation." Id. at 679, quoting Waterhouse v. Dist. of Columbia , 298 F.3d 989, 996 (D.C. Cir. 2002).
The Court concludes that no reasonable jury could infer retaliation on the set of facts plaintiff has presented in this case because there is no evidence that she engaged in protected activity. Although Title VII protects informal complaints, see Peters v. Dist. of Columbia , 873 F.Supp.2d 158, 202 (D.D.C. 2012), "[n]ot every complaint garners its author protection under Title VII." Broderick v. Donaldson , 437 F.3d 1226, 1232 (D.C. Cir. 2006). And "[w]hile no 'magic words' are required, the complaint must in some way allege unlawful discrimination, not just frustrated ambition." Id. (noting that the memorandum itself may not be protected activity because it did not allege "that she was currently being discriminated against").
Plaintiff maintains that the memorandum she wrote on September 7, 2009 requesting a salary increase commensurate with her secretarial duties, and the meeting she had about her request the next day with Mbewe and Mbula, constituted protected activities.22 See Pl.'s Opp. at 8. But the memorandum and oral conversation fall well short of the Broderick standard because there is no evidence that in either complaint plaintiff alleged discrimination on the basis of gender.
In her memorandum to her supervisors, plaintiff stated that the Embassy had the "authority to give salary increase to diplomatic and locally engaged staff when one has an extra work load," and she pointed out that this was "previously done" for other employees. Sept. 7 Barot Memo. She hoped to receive a salary increase "in FAIRNESS ... because the Embassy had become larger, and [she was] not only performing Secretarial Job, but ha[d] already been catering to a much larger volume of Accounting Job."Id. Nowhere in the memorandum does plaintiff mention that she is being discriminated against at all. She complained that four other employees were more highly compensated than she was, but only two out of the four she mentioned were male, so the memorandum did not include an implied suggestion, or give rise to an inference, that she was complaining about gender discrimination.
Turning to the in-person meeting, plaintiff testified in her deposition that she wrote the September 7 memorandum, and then met with Mbewe and Mbula, because she thought that she was being discriminated *189against because she was being treated differently from her younger and male coworkers. Barot Dep. 125:15-126:3 ("Because I was thinking that I was discriminated. Other employees, they were performing extra duties and were given extra money. And in my case, I had been doing so many things and they had even saved some money and they would not even give me an extra cent."); id. at 305:11-306:15 ("Q...[Y]ou previously stated that you submitted this letter because others were getting raises when getting extra duties, but you were not; correct? A. Yes."); id. at 307:13-19 ("Q. Were you, in sending this letter, were you describing how other employees were being treated differently than you? A. Yes."). But, whatever she was thinking, there is no evidence in the record that she discussed these other employees or any alleged gender discrimination at the meeting. It is undisputed that the meeting was about plaintiff's salary request, and that it resulted in plaintiff's agreement to return to her "position of being [a] secretary" in lieu of a raise for what she maintained was additional work. See Def.'s SOF ¶ 31; Pl.'s SOF ¶ 31; Barot Dep. at 107:22-108:14. Plaintiff's generalized complaint that "[o]ther employees ... were performing extra duties and were given extra money," Barot Dep. 125:20-22, does not qualify as protected activity under Title VII.
Since plaintiff has failed to establish an essential element of a retaliation claim, no reasonable juror could find that retaliation was the "but for" cause of the adverse employment actions. Furthermore, as set forth in connection with the ADEA claim, plaintiff has failed to undermine defendant's stated concerns about her attitude and commitment to her job. Therefore, defendant's motion for summary judgment on this count will be granted.
CONCLUSION
Because plaintiff has not provided sufficient evidence from which a reasonable jury could conclude that she was terminated because of her age, or in retaliation for complaining about gender discrimination, the Court will grant defendant's motion for summary judgment on the remaining counts.
A separate order will issue.
Plaintiff consented to the entry of summary judgment in favor of defendant on Count I. See Pl.'s Opp. to Def.'s Mot. [Dkt. # 86] at 1 n. 1 ("Plaintiff does not oppose Defendant's Motion for Summary Judgment related to [her] pay discrimination claims."). Therefore, the Court will grant judgment in favor of defendant on plaintiff's pay discrimination claim, and this opinion will only address Counts II and III.
The Court recognizes that in Winston & Strawn, LLP v. McLean , the Court of Appeals held that "[u]nder the Federal Rules of Civil Procedure, a motion for summary judgment cannot be 'conceded' for want of opposition." 843 F.3d 503, 505 (D.C. Cir. 2016). The court underscored that the "District Court 'must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.' " Id. , quoting Grimes v. Dist. of Columbia , 794 F.3d 83, 95 (D.C. Cir. 2015). However, that ruling arose in the context of a case in which the district court exercised its discretion under the Local Rules to treat a summary judgment motion as conceded when the non-moving party failed to file any opposition at all. The Court stated:
A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. And then a district court must always determine for itself whether the record and any undisputed material facts justify granting summary judgment. These standards cannot be satisfied if, as allowed by Local Rule 7(b), the District Court simply grants judgment "as conceded" when the nonmoving party fails to meet a deadline.
Id. at 507 (internal citations, quotation marks, and edits omitted).
But that is not what happened in this case. Defendant met its initial responsibility to inform the Court of the basis of its motion, and it pointed to the portions of the record that demonstrate the lack of any genuine issue of material fact on Count I. And here, unlike in Winston & Strawn , plaintiff filed a timely opposition to the motion for summary judgment, and she identified all of the issues which, in her view, presented genuine disputes of material fact that would bar entry of judgment against her. Thus, plaintiff has availed herself of the opportunity provided in Rule 56(c) to address all of defendant's assertions of fact, and, pursuant to Rule 56(e), the Court may consider the facts related to Count I to be undisputed for purposes of the pending motion. Since in the face of that showing, plaintiff specifically informed the Court that she did not oppose the entry of judgment against her on Count I, there is no dispute for the Court to adjudicate, and the requirements of Rule 56 have been satisfied.
Pursuant to Local Civil Rule 7(h), defendant submitted its statement of undisputed material facts in support of its motion for summary judgment. Statement of Undisputed Material Facts in Supp. of Def.'s Mot. [Dkt. # 80-2] ("Def.'s SOF"). Plaintiff filed a response to defendant's statement of material facts as part of her brief in opposition to defendant's motion for summary judgment. Pl.'s Resp. to Def.'s SOF [Dkt. # 86-1] ("Pl.'s SOF"). Plaintiff also provided an additional statement of undisputed material facts in opposition to defendant's motion. Pl.'s Additional Statement of Undisputed Material Facts in Opp. to Def.'s Mot. [Dkt. # 86-1] ("Pl.'s Counter SOF") at 12-16. Defendant then filed a response to plaintiff's additional statement of undisputed material facts attached to defendant's reply brief. Def.'s Reply to Pl.'s Counter SOF [Dkt. # 87-1] ("Def.'s Resp. SOF"). Though plaintiff's additional statement of undisputed material facts and defendant's response to those facts are not contemplated by Local Civil Rule 7(h) -and it is unclear why these additional factual statements are provided-they nevertheless identify additional undisputed facts. So, when the parties acknowledge that a fact is undisputed in either set of factual statements, and the record supports those facts, the Court will cite to those statements.
At times, plaintiff cites to her deposition in support of her rendition of the facts, but she does not provide the Court with the deposition pages to which she refers. She simply cites to the deposition which was attached in full as Exhibit MM to defendant's reply to plaintiff's opposition to its cross-motion for partial summary judgment. See Ex. MM to Def.'s Reply to Pl.'s Opp. to Def.'s Cross-Mot. for Partial Summ. J. [Dkt. # 82-1] ("Barot Dep."). Since plaintiff's full deposition transcript is in the record, and because she cites to it throughout her statement of facts and motion, the Court's citations to plaintiff's testimony will refer to the full transcript already in the record.
Only a draft of this memorandum, written in shorthand, is still in existence. Def.'s SOF ¶¶ 32; Pl.'s SOF ¶ 32.
Plaintiff disputes the allegation that she deleted the payment voucher template. She claims that she used the template on September 10, 2009 to prepare a payment voucher for the representational car of the Ambassador, Pl.'s SOF ¶ 34; Barot Dep. at 112:19-113:3; id. at 388:15-389:10, and that the vouchers issued to her after she was placed on administrative leave were created using the computerized voucher template. Pl.'s SOF ¶ 34; Barot Dep. at 310:22-312:17. Plaintiff did not supply any documentary evidence on this point.
At some point during this exchange, Mbewe entered plaintiff's office as well. Def.'s SOF ¶ 36; Pl.'s SOF ¶ 36.
The Republic of Zambia maintains a permanent mission to the United Nations in New York City ("UN Mission"). Def.'s SOF ¶ 15; Pl.'s SOF ¶ 15. Zambia's Minister of Foreign Affairs has the authority to hire and fire diplomatic personnel assigned to the UN Mission, and also sets the conditions of their employment, monitors their performance, sets their salaries, and disciplines them. Def.'s SOF ¶¶ 15-16; Pl.'s SOF ¶¶ 15-16. The UN Mission's locally engaged staff is hired, fired, and disciplined by the diplomatic head of the UN Mission-the Permanent Representative. Def.'s SOF ¶¶ 15, 17; Pl.'s SOF ¶¶ 15, 17. The UN Mission exercises control over locally engaged staffs work, and sets their salaries with recommendation from Zambia's Minister of Foreign Affairs. Def.'s SOF ¶ 17; Pl.'s SOF ¶ 17.
Plaintiff "disputes" this fact "to the extent that it asserts a legal conclusion about the locally engaged staff's statutory employer for the purpose of the ADEA or Title VII." Pl.'s SOF ¶ 9. Local Rule 7(h) requires a party's separate statement of genuine facts to set "forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement." LCvR 7(h). Plaintiff has failed to do so here, and instead, only provides her own commentary. To the extent plaintiff does not support her factual assertions with record evidence, the Court can neither credit them, nor conclude that they controvert defendant's factual assertions.
The parties dispute the date on which plaintiff filed her original complaint, see Barot v. Embassy of Zambia , 264 F.Supp.3d 280, 285 n.5 (D.D.C. 2017), but this date does not affect the outcome of this case so the Court need not address the issue.
Plaintiff filed her opposition to defendant's motion for summary judgment on April 10, 2017. Pl.'s Opp. to Def.'s Mot. [Dkt. # 86] ("Pl.'s Opp."). On April 24, 2017, defendant filed its reply. Def.'s Reply to Pl.'s Opp. [Dkt. # 87] ("Def.'s Reply").
Both statutes define an "employee" as "an individual employed by an employer." 42 U.S.C. § 2000e(f) ; 29 U.S.C § 630(f).
Defendant questions whether the "integrated enterprise" test should apply to this case where the entities to be integrated are governmental bodies. See Def.'s Mem. at 16 n.3; Def.'s Reply at 6. While the "single employer" test was initially developed to determine if private corporations met the statutory employee requirement, courts have applied the test in cases involving governmental entities. See Tewelde v. Albright , 89 F.Supp.2d 12, 16 n.7 (D.D.C. 2000) (applying the test to the United States State Department and the American Embassy Association, but concluding that the entities were not a single employer). Even courts that have questioned the test's applicability to governmental entities have observed that at least two of its factors, the "interrelation of operations and centralized control of labor relations," are relevant to the inquiry. See Lyes v. City of Riviera Beach , 166 F.3d 1332, 1345-46 (11th Cir. 1999) (holding that the four factor test does not apply perfectly in the context of state or local governmental entities, and holding that courts should "begin with the presumption that governmental subdivisions denominated as separate and distinct under state law should not be aggregated for purposes of Title VII").
The parties cite to various portions of Mbewe's deposition. See Ex. 11 to Def.'s Mot. [Dkt. # 80-5]; Ex. 19 to Def.'s Mot. [Dkt. # 80-5]; Ex. 27 to Def.'s Reply [Dkt. # 87-2]; Ex. 29 to Pl.'s Opp. [Dkt. # 86-5] (together, "Mbewe Dep."). The Court's citation to Mbewe's testimony encompasses all of the portions of the transcript cited by the parties.
It is the Court's understanding that any reference to the "Mission" is another name for the Embassy in Washington, D.C. See Ex. 12 to Def.'s Mot. [Dkt. # 80-5]. ("I refer to a letter that I have received from one of your support staff at that Mission, Ms. Dolores Barot").
The Court only mentions nine diplomats since it will not include the Defense Attaché in this calculation. Since plaintiff would meet the statutory calculation of fifteen or twenty employees regardless of the inclusion of the Defense Attaché in the total, the Court need not decide his legal employer at this time.
One court in this district has held that aggregation is not proper under the "single employer" test if one of the two entities would not qualify as an "employer" under the statutory definition. See Brug , 45 F.Supp.2d at 39-40 (concluding that because the United States is expressly excluded as an "employer" under Title VII, federal employees could not be aggregated with private employees to meet the fifteen-person requirement). The Court asked the parties to provide supplemental briefing on the question of whether the Ministry of Foreign Affairs could qualify as an "employer" for purposes of Title VII and/or the ADEA and whether its diplomatic personnel could be aggregated with Embassy employees. See Min. Order (Dec. 20, 2017).
Nothing in either statute expressly excludes the government of any foreign state or agency from coverage. See 42 U.S.C. § 2000e(b) ; 29 U.S.C. § 630(b). So this case is distinguishable from Brug . And while defendant misguidedly focuses on how the statutes do not cover discrimination abroad unless a foreign employer is controlled by a U.S. employer, plaintiff's case only deals with alleged discriminatory and retaliatory actions that took place in the United States. See Def.'s Suppl. Mem. at 2-3; Pl.'s Resp. to Dec. 20, 2017 Order [Dkt. # 92] ("Pl.'s Suppl. Mem.") at 2-3. And Title VII and the ADEA apply to foreign employers doing business in the United States. See Gaujacq v. EDF, Inc. , 601 F.3d 565, 576 (D.C. Cir. 2010) ("Title VII applies to foreign companies operating in the United States and protects aliens working in the United States as well as U.S. citizens."); see also Morelli v. Cedel , 141 F.3d 39, 43-44 (2d Cir. 1998) (concluding that the ADEA covers a U.S.-based branch of a foreign employer); Jouanny v. Embassy of France , No. 16-cv-00135, 2017 WL 2455023, at *4-5 (D.D.C. June 5, 2017) (discussing Morelli approvingly, and concluding that a foreign embassy operating in the United States was subject to the ADEA).
Further, defendant repeatedly characterizes the diplomats as "Ministry employees." See , e.g. , Def.'s Mem. at 17 ("Diplomats are employees of the Ministry of Foreign Affairs ...."); Def.'s Reply at 4; Def.'s Suppl. Mem. at 4. And even if the diplomats would not be covered by Title VII and/or the ADEA, and they could not sue the Ministry under either statute because the Ministry would be immune from their suit under the FSIA, see El-Hadad v. United Arab Emirates , 496 F.3d 658, 662-69 (D.C. Cir. 2007), that does not disqualify them from being aggregated with Embassy employees for purposes of the Embassy meeting the statutory requirements. Indeed, courts have rejected the argument that "an unprotected employee should not be counted" for purposes of meeting the statutory employee requirement. See, e.g., Morelli , 141 F.3d at 44-45 ("There is no requirement that an employee be protected by the ADEA to be counted .... The nose count of employees relates to the scale of the employer rather than to the extent of the protection."); Kang v. U. Lim Am., Inc. , 296 F.3d 810, 816 (9th Cir. 2002) (holding that Title VII's definition of "employee" does not prohibit counting foreign employees); see also Sinclair v. De Jay Corp. , 170 F.3d 1045, 1048 (11th Cir. 1999) (approving of Morelli's decision to aggregate employees of foreign employers who work in the United States and a foreign country).
Moreover, the Court agrees with plaintiff that she may proceed with her claims against the Embassy even though she did not sue the Ministry of Foreign Affairs. Defendant argues that "the joint employer and integrated enterprise theories seek to impose liability on the alleged joint/integrated employer," which the Court cannot do "if the Ministry is not before the Court as a defendant." Def.'s Suppl. Mem. at 4. While defendant is correct that the Court cannot impose liability upon the Ministry, plaintiff is not seeking that form of relief. See generally 2d. Am. Compl.; Pl.'s Suppl. Mem. at 7 n.5. Rather, she is only utilizing the integrated enterprise doctrine or joint employer theory for purposes of establishing liability against the Embassy. And defendant has not provided the Court with any legal authority suggesting that this is an incorrect use of either doctrine. In fact, the Court has identified cases in this district that have utilized these theories despite the plaintiff only suing one of the alleged employers. See, e.g., Dean , 509 F.Supp.2d at 56-57 (although plaintiff only sued the local union, rather than the local and national unions together, the Court utilized the integrated enterprise test to determine if the local union met Title VII's employee requirement); Woodland , 569 F.Supp.2d at 87 (utilizing integrated enterprise doctrine to determine liability of parent company, which was the only entity sued, for acts of its subsidiary); Tewelde , 89 F.Supp.2d at 17 (using the integrated enterprise test to determine if the U.S. State Department, which was the only party sued, was liable under Title VII for acts committed by plaintiff's employer, the American Embassy Association).
This internal memorandum, dated May 3, 2013, described the events leading to plaintiff's termination:
At the end of the meeting our opinion was that the meeting was held in a cordial and friendly atmosphere and that we ended the meeting in mutual agreement. Later in the evening around 7:00pm, First Secretary (Accounts) Mr. Frank Mbewe informed Minister Counsellor Mr. Chioza and First Secretary (political/ Administration) Mr. Mbula that the computerized accounts payment voucher template had been deleted from the computer by Ms. Barot and that this was due to the fact that she was not happy because she had not received a salary increase and because she had not been paid her 10% bonus as she had demanded for some time. It was also learnt that she felt that the computerized payment vouchers were her intellectual property. Due to the seriousness of the allegations and the absence from station of then Ambassador Dr. Inonge Mbikusita Lewanika, a decision was made by the mission administration the same night (9th September 2009) to immediately place Ms. Barot on administrative leave (suspension) pending the arrival of the Ambassador....
Upon the Ambassador's arrival back to station, she was briefed about what had transpired during her absence and informed that the decision to suspend Ms. Barot was only an interim measure and that due to the seriousness of the alleged offence Administration had decided to recommend that ultimately her employment with the embassy had become untenable and such should be terminated. The Ambassador was in agreement and therefore went ahead and signed a letter of termination of employment dated 31st October 2009.
Brief on the Case of Dolores Barot at 2-3.
The D.C. Circuit has also observed that where an employer's conduct appears so "incomplete that a factfinder could conclude that the employer sought, not to discover the truth, but to cover up its own discrimination," a factfinder could find pretext. Burley , 801 F.3d at 296. But in the Burley case, the court concluded that since the failure to review a videotape during the investigation would not have revealed any facts that would have affected the disciplinary action, no reasonable jury could conclude that the defendant's actions were motivated by race based on that omission alone.
In Hicks , the Court was addressing a situation where the Court of Appeals had called for a directed verdict after the plaintiff had rebutted the defendant's non-discriminatory reason. The Court made it clear that merely coming forward with some evidence to undermine the defendant's claim of a reasonable basis for its action is not always enough to carry the day for the plaintiff; indeed, it devoted several pages of its opinion to dispelling the dissent's contention that its ruling could be read to stand for that principle.
We have no authority to impose liability upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated . We may, according to traditional practice, establish certain modes and orders of proof, including an initial rebuttable presumption of the sort we described earlier in this opinion, which we believe McDonnell Douglas represents. But nothing in law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable.
509 U.S. at 514-15, 113 S.Ct. 2742. (emphasis in original); see also Aka , 156 F.3d at 1290, 1292 (holding that even though a "plaintiff's discrediting of an employer's stated reason for its employment decision is entitled to considerable weight," it does "not automatically entitle the plaintiff to judgment as a matter of law."). While those cases arose in a different procedural posture, they underscore the necessity of a showing of discriminatory intent.
Plaintiff denies that she was seeking to force defendant to pay her more and states that her goal was simply to let the supervisors know that she had been useful to them. Barot Dept. at 125:3-9 (testifying that it was "not [her] intention" to force them to buy forms or give her more money; her intention was "for them to just know that [she] ha[d] been useful also to them"). But a dispute about her motivation does not create a dispute about whether the supervisors honestly and reasonably harbored concerns.
Plaintiff's complaint alleges unlawful retaliation in violation of Title VII. 2d Am. Compl. ¶¶ 81-86. She claims that she engaged in protected activity "when she complained of unequal pay and ... of discrimination." Id. ¶ 82. In her brief, plaintiff seems to argue that she was discriminated against because she was paid less than four coworkers, "all of whom were younger than [her] ... [or] were men." Pl.'s Opp. at 2. Because Title VII does not cover discrimination on the basis of age, plaintiff cannot bring a Title VII retaliation claim based on the alleged fact that she was being paid less than her younger coworkers. Therefore, the Court will only analyze plaintiff's Title VII claim in relation to her claim that she was discriminated against based on her gender.
In her second amended complaint, plaintiff alleges that a November 10 letter she sent to the Ministry of Foreign Affairs constitutes "protected activity" for purposes of her Title VII claim. See 2d Am. Compl. ¶ 82; see Ex. 26 to Def.'s Mot. [Dkt. # 80-5] ("Nov. 10 Letter"). Defendant argues that this letter cannot form the basis of plaintiff's Title VII retaliation claim, although it does not expressly argue that it was not protected activity. See Def.'s Mem. at 25-27. However, the "discrimination" complained of in the letter does not refer to any protected characteristic under Title VII, but rather focuses on plaintiff's belief that she was being treated unfairly in comparison to other employees who have been subject to discipline. See Nov. 10 Letter ("There seems to have double standard and discrimination in the Embassy because in some cases, before a punishment is imposed to a particular staff, he/she was given a warning but in my case there was none."). And even if the letter could qualify as "protected activity," no reasonable juror could infer retaliation based on the letter. There is no evidence that the Embassy was even aware of this letter, since it was sent directly to the Ministry, and it is undisputed that it was written five days after defendant wrote plaintiff's termination letter. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4031278/ | THE THIRTEENTH COURT OF APPEALS
13-16-00360-CV
Amanda Ann Gutierrez
v.
Rogelio P. Flores
On appeal from the
117th District Court of Nueces County, Texas
Trial Cause No. 2012-FAM-4957-B
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/3430447/ | On the 16th day of April, 1920, appellant, Lindley, being then the owner in fee of a certain lot in the town of Little Sioux, conveyed the same by warranty deed to Catherine V. Kellar. This deed contained the usual covenants of warranty that the premises were free and clear of all liens and incumbrances, and a covenant to warrant and defend the title against the lawful claims of all persons whomsoever.
On June 9, 1922, the Heinrich Chemical Company commenced the foreclosure of a mortgage on said property. This mortgage was dated February 26, 1917, and was due March 1, 1918. Notice in that proceeding was served on Catherine V. Kellar and William A. Kellar, who were husband and wife. *Page 59
It is claimed that thereupon, by proper proceedings, J.H. Lindley, appellant, was vouched into said case; that he failed to appear and defend his title; that judgment was rendered, foreclosing the mortgage, and the same was sold on execution. To prevent the same from going to deed, William A. Kellar, as executor of the estate of Catherine V. Kellar, deceased, and on his own behalf, as sole beneficiary of said estate, paid said costs and accrued costs, amounting to $325.79. He then brought this action against Lindley, alleging breach of the warranty and asking to recover the aforesaid amount, with interest, as provided by law.
In the original petition filed by appellees, the pleading was indefinite as to just what was done about vouching Lindley into the foreclosure suit. An amendment was filed thereto, which alleged an oral vouching. On the trial of the 1. APPEAL AND case, on ruling of the court that an oral ERROR: vouching was not sufficient, under the Iowa law, right of an amendment was made, alleging that written review: notice was given to Lindley to appear and defend estoppel. in the foreclosure case. Bitter complaint is made of this last amendment because, it is claimed, it changed the issues in the case. The record, however, shows that, at the time this question was raised, the appellant was given opportunity to have the case continued, if he so elected, but that he elected to proceed with the trial. This gave appellant all that he was entitled to, under our practice.
On the trial, after this amendment was filed, J.A. Murray, who was one of the attorneys for appellees, took the witness stand, and testified to having written a letter to appellant, in which he referred to the foreclosure suit, and advised 2. WITNESSES: Lindley that he would expect him to defend the competency: same. This testimony was objected to on the attorneys. ground that, being an attorney in the case, he was incompetent to testify. Waiving the question of ethics of the profession, we have rather frowned upon this practice of attorneys' testifying as witnesses in a lawsuit where they were engaged as counsel; but we realize that there are cases which arise when it becomes absolutely necessary for an attorney to testify. While condemning the practice, we have never held that it was error for the court to permit an attorney to testify. We have held that, in a jury trial, where an attorney testifies, the court *Page 60
is warranted, if requested, in giving an instruction as to the weight and credibility to be given to his testimony. The last time we had this question before us was in Waterman v. Bryson,178 Iowa 35, where we passed on this question, and approved an instruction of this character.
The question of whether the notice given was sufficient to vouch the appellant, Lindley, into the foreclosure case is discussed. Suffice it to say that, under the circumstances in this case, it was a question for the jury, and was submitted to the jury accordingly; and the jury found against appellant.
Other propositions, five in number, all surround or are involved in the question as to the admissibility of the judgment entry and record in the foreclosure case; and, if it should be held that such record were properly admitted in evidence, then there is nothing left in the contention of appellant on these propositions.
Appellant, Lindley, having been properly vouched into the foreclosure case, he is bound by the record made in that case (15 Corpus Juris 1267); but the question is, how far? The decree settled the proposition that the mortgage and 3. COVENANTS: note sued on therein were a binding obligation action for and a lien on this property at the time the breach: warranty deed was made. So far, there seems to evidence be no dispute between counsel. That judgment available entry also determined the amount due on said against indebtedness, and carried with it certain costs vouchee. and accrued costs. It is the claim of appellant herein that the amount thus paid by the Kellars when they redeemed from this mortgage foreclosure sale is not the proper measure of their damage, and therefore that the judgment entry aforesaid in the foreclosure case was not admissible to prove and establish their damages. Great reliance is placed upon the cases of Myers v. Munson, 65 Iowa 423, and Ballou v. Clark, 187 Iowa 496. The facts in each of those cases are very different from those in the case at bar. In each case there were two warranty deeds, and the holder of the last sued his grantor for breach of warranty, and the grantor of the first deed was vouched into the case. After judgment was obtained in that suit, the defendant brought action against the original grantor in the first warranty deed. In each of these cases, the outstanding incumbrance was an easement. In the Myers case, it was *Page 61
the right to maintain and use a stairway, and in the Ballou case, it was an easement on the land for controlling and maintaining an open ditch. Both of those cases held that, under such circumstances, the amount fixed by the first judgment is not admissible in evidence or binding in the second suit, the reason being quite apparent, because the damages allowed were based on the depreciated value of the property by reason of the existing easement, and, as land values frequently change, the damages suffered by the last deed holder, thus measured, might not be the damages suffered by the first deed holder. Especially would this be true where, in cases like these under discussion, long times intervened between the two deeds.
In the instant case, however, there is but one breach of warranty, and it was to defend against the mortgage foreclosure that the grantor Lindley was vouched into that case. There can be no question of change of values of the land involved in this matter, as the amount to be ascertained is fixed by the written instrument sued on. We have repeatedly settled the question in this state that the covenantee, under such circumstances, can recover the amount actually paid out to discharge the incumbrance, and that such amount is presumptively the measure of his damages. Knadler v. Sharp, 36 Iowa 232; Newburn v. Lucas,126 Iowa 85; Boice v. Coffeen, 158 Iowa 705.
Under the situation in this particular case, we feel that there was no error in admitting the record in the foreclosure case as evidence in this case. There are no exceptions to the instructions and no exceptions to the rulings of the court on the matters about which complaint is herein made. This rule is recognized and followed in the case of Foshay v. Shafer, 116 Iowa 302.
This disposes of appellant's contention that there was no evidence on which the jury could base a finding as to damages.
Complaint, however, is made that an attorney fee was included in the costs taxed in the foreclosure case. The 4. COVENANTS: record does not so show, however; but, if it action for did, it is a proper element to be allowed in breach: such cases. Meservey v. Snell, 94 Iowa 222; attorney Foshay v. Shafer, supra. We find no error in the fees. record. — Affirmed.
EVANS, C.J., and De GRAFF and MORLING, JJ., concur. *Page 62 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430448/ | For many years, the decedent and two brothers, H.R. and Guy H. Straight, were engaged in the manufacture and sale of clay products at Auburn, Iowa, as a copartnership, under the firm name and style of the Auburn Brick Tile Company. In the fall of 1912, they filed articles of incorporation, providing for a capital of $100,000. At the same time, an application was filed for permission to pay the capital with the property of the copartnership and certain real property, title to which was held in the names of the respective partners. In due time, a certificate authorizing the corporation to commence business was issued by the secretary of state.
Later, and in 1918, the same parties, who were the owners of all of the stock of the corporation, adopted an amendment to the articles, providing for an increase of the capital of the corporation to $250,000, and, together with an application for permission to pay the increased capital in property, filed the same with the secretary of state. In due time, the appropriate certificates were issued by the secretary of state. The old stock of the corporation, was surrendered, and new stock issued for $200,000. In addition thereto, stock of the par value of $14,000 was sold.
The claim filed against the estate of decedent is based upon a series of negotiable promissory notes executed by and in the name of the corporation to the appellant. The aggregate amount due thereon at the time the claim was filed was in excess of $36,000. Either concurrently with the filing of the claim or a few days later, appellant filed a petition in equity against the administrator. Both the claim and the cause of action in equity against the estate were predicated upon the alleged personal liability of the decedent as a stockholder of the corporation.
Three propositions are argued by appellant. They are: (a) That the property of the copartnership was never conveyed *Page 1029
to the corporation, and hence the capital was never paid in; (b) that the notice of the original articles of incorporation and of the amendment thereto did not substantially comply with the requirements of the statute; and (c) that the indebtedness of the corporation, if any, was in excess of that allowed by law. We will dispose of the foregoing propositions in the order stated.
I. The property of the copartnership consisted of the plant, equipment, machinery, etc., which were fully described and itemized in the application to the executive council for permission to pay the capital in property, and 1. CORPORA- there was included therein certain real estate, TIONS: title to which was held in the name of the stock: individual partners. The property was appraised, payment in as required by law, and thoroughly inspected by property an engineer appointed by the executive council. other than Deeds conveying the real estate to the money. corporation were duly executed, and the property of the copartnership was taken over thereby and entered upon its books. No bill of sale or other conveyance was executed to the corporation. The property was, however, at all times held by, and treated as the property of, the corporation. The stock was issued and the business conducted in the corporate name. A formal transfer thereof could not have more effectually vested the title to the personal property in the corporation than did the entry thereof on the books thereof, the assumption of ownership thereby, and the issuance of stock based thereon. There was at this point substantial compliance with the statute.
II. The alleged defects of the notice required by Section 1613, Code of 1897 (Section 8357, Code of 1924), to be published, may be summarized as follows: That it did not specify the amount of capital stock authorized or the times and 2. CORPORA- conditions on which it was to be paid; that it TIONS: did not state the date on which the corporation incorpora- would commence business, nor the duration of the tion: corporation. The notice recited that the capital notice: stock of the corporation should be $100,000, to sufficiency. be divided into shares of $100 each, and to be fully paid before the corporation began business, and that the business should begin on the date the secretary of state issued the certificate, and would continue for twenty years thereafter. It is true that the capital was to be paid in property, but the statute requires only that the *Page 1030
times and conditions on which it is to be paid shall be stated. The statement in the notice that it was to be paid before the corporation should commence business sufficiently met the requirements of the statute. The notice substantially complied with all statutory requirements. Thornton v. Balcom, 85 Iowa 198;Brinkley Car Works Mfg. Co. v. Curfman, 136 Iowa 476; Union Tr. Sav. Bank v. Blair-Harper Seed Co., 200 Iowa 374.
The published notice of the amendment to the articles increasing the capital to $250,000 is less specific. It did not state the terms or conditions upon which the capital should be paid in. The application to the executive 3. CORPORA- council for authority to pay the capital in TIONS: property included the original property of the stock- corporation, together with accumulations, the holders: total value of which, it was alleged, exceeded non- $250,000. The claim is that the business of the personal corporation prospered, and that its property had liability so far enhanced in value as to justify an under increase in capital. The property was duly defective appraised by competent appraisers, and again notice. inspected by an engineer selected by the executive council. Appellant herein was one of the appraisers, both when the incorporation was originally formed and when the amendment to its articles was adopted, so that he must have had full notice of the assets of the corporation and the form in which its capital was paid.
Section 1616, Code of 1897 (Section 8362, Code of 1924), provides that:
"A failure to substantially comply with the foregoing requirements in relation to organization and publicity shall render the individual property of the stockholders liable for the corporate debts."
Section 1631, Code of 1897 (Section 8394, Code of 1924), is as follows:
"Neither anything in this chapter contained, nor any provisions in the articles of corporation, shall exempt the stockholders from individual liability to the amount of the unpaid installments on the stock owned by them, or transferred by them for the purpose of defrauding creditors; and execution against the company may, to that extent, be levied upon the private property of any such individual." *Page 1031
Unless there was a failure on the part of the incorporators to substantially comply with the statute regarding organization and publicity, the decedent would not have been liable as a stockholder for the corporate debts, under Section 8362, Code of 1924. We think there was substantial compliance with the statute in these particulars, certainly as to the original proceedings for the incorporation of the business of the copartnership, and we think as to the amendment. The object of the publication of the notice is that parties dealing with the corporation may know, or be charged with, knowledge that they are not dealing with natural persons. Thornton v. Balcom, 85 Iowa 198; Brinkley CarWorks Mfg. Co. v. Curfman, 136 Iowa 476. Appellant had actual notice of the form in which the capital stock was to be paid, and, as stated, participated as an appraiser in both instances. The original incorporation being clearly valid, a mere failure to comply in every particular with the statute in the form and substance of the notice given of the amendment would not alone subject the stockholders to liability as partners. The most, it seems to us, that can be claimed at this point is that the notice of the amendment to the articles was defective. Appellant did not rely upon the publicity required by the statute in extending credit to the corporation. He knew how and in what form both the original and the increase in the capital of the corporation were paid. The executive council approved both applications for permission to pay the same in property, and proper certificates were issued by the secretary of state. It is the rule in this state that, where the creditor has full knowledge of the transactions between the corporation and its stockholders at the time he extends credit, he cannot complain, for the obvious reason that he is not deceived or led to believe that the capital stock has been paid in full in cash or property. State Tr. Co. v.Turner, 111 Iowa 664; Watt v. German Sav. Bank, 183 Iowa 346. Some claim is made by appellant that neither the property of the copartnership nor of the corporation, at the time its capital was increased, was worth the amount of the appraisement. It seems to us that appellant is foreclosed at this point by his actual knowledge of the facts.
III. The contention of appellant that the indebtedness of the corporation was in excess of that permitted by law is *Page 1032
based upon his contention that the property of the copartnership was not conveyed to the corporation, and that its value did not justify the increase in the capital to $250,000. Having held that the contention of appellant at this point is erroneous, we need not further discuss this question.
IV. The claim of appellant was filed considerably more than one year after notice of the appointment of the administrator was published. It is alleged in the claim, and also in the petition in equity, that the facts upon which personal liability of the decedent is based were not discovered until at or about the time the claim was filed. The ruling of the court upon the objections of the administrator to the filing of the claim was somewhat indefinite. The court having found against appellant on the merits, this issue ceased to have any particular importance. The court, in a written opinion, however, said that, if a contrary conclusion had been reached on the merits, permission to file the claim would have been granted.
We deem it unnecessary, however, in view of our conclusion on the merits, to determine whether the equitable circumstances relied upon by appellant entitled him to file the claim at the time it was offered or not. What we have said disposes of the propositions argued by counsel. The procedure appears to have been satisfactory to counsel for appellee, and, if irregular, it is not complained of. — Affirmed.
EVANS, C.J., and De GRAFF, KINDIG, and WAGNER, JJ., concur.
FAVILLE, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430449/ | I. Defendant contends that the evidence is insufficient to sustain conviction. A number of witnesses testify to smelling intoxicating liquor on his breath at the time of the accident. A number testify that he was at that time 1. MOTOR intoxicated. Defendant was in two collisions VEHICLES: within an hour or two. A number of witnesses who offenses: saw him about an hour before the first accident driving testify that they did not notice that he had while been drinking, or gave evidence of intoxication. intoxicated. Some of them admit that they were not in a position to observe. None of them knew whether or not he drank between the times they saw him and the time of the accident. The jury were warranted in finding that the defendant was intoxicated when driving his car. *Page 430
II. It is objected that the defendant was compelled to admit that he had served a sentence in Illinois for transporting liquor. He was asked, on cross-examination:
"Q. At what place did you stay in Galesburg? (Mr. Duke: I 2. CRIMINAL object to it as incompetent, irrelevant, and LAW: appeal immaterial.) A.I done 60 days in jail there. Q. and error: Was that for the transportation of liquor, or objection- being drunk at that time? (Mr. Duke: I object to able answer: this as incompetent, irrelevant, and waiver. immaterial.) A. It was for transporting liquor.
"Court: That testimony is admitted, members of the jury, solely as bearing, if it does, upon his credibility as a witness."
The first question was proper. The answer was not inadmissible. There was no motion to strike it out. There was no error in this ruling. State v. Pugsley, 75 Iowa 742; State v. Chingren,105 Iowa 169, 173; State v. Brennan, 185 Iowa 73.
With respect to the second question propounded to defendant, this question was answered before it was ruled upon. There was no motion to strike. Error does not appear.
III. Defendant claims that he was not permitted to show animosity upon the part of the arresting officer, who was a witness against him. This claim is founded upon questions on cross-examination as to whether the officer refused to permit defendant to use the telephone, to get bondsmen or to get an attorney. The officer testified that he did not treat defendant any differently than any other person that is intoxicated. That was the only reason he refused to let him telephone. The officer was further asked, on cross-examination:
"Q. Well, your attitude towards this man was hostile? A. No."
Error is not shown.
IV. The sentence is claimed to be too severe. Defendant was sentenced to pay a fine of $300 and costs, and to three months in jail; and in default of payment of fine and costs, he was sentenced to jail until fine and costs are paid, 3. CRIMINAL the sentences not to run concurrently. By LAW: Section 5027, Code of 1924, the penalty for sentence: operating a motor vehicle while intoxicated is unauthorized sentence to the penitentiary for a period not judgment. exceeding one year, or a fine of not more than $1,000, or both. Under this statute, the court had no *Page 431
authority to impose a jail sentence as a part of the substantive penalty. The sentence to three months in jail should, therefore, be eliminated.
By Section 13964, Code of 1924, a judgment that defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every three and one-third 4. MOTOR dollars of the fine. The judgment should be VEHICLES: modified by eliminating the sentence to three sentence: months in jail, and the imprisonment for imprisonment non-payment of fine should be limited to 90 for non-days. State v. Dill, 197 Iowa 208; Scavo
payment of v. Utterback (Iowa), 205 N.W. 858 (not costs. officially reported).
The statute does not authorize imprisonment for non-payment of costs. The case is remanded, with instructions to enter judgment in accordance with the foregoing. — Modified, affirmed, andremanded.
De GRAFF, C.J., and EVANS and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430452/ | This cause is submitted on a stipulation of facts. The appellant and his family reside within the boundaries of the Independent School District of Pleasant Hill, in Franklin County. The appellant has six children in his family, part of *Page 65
whom are eligible to attend high school, and as to them it is stipulated and agreed that the appellee district should pay to appellant the cost of the tuition and transportation.
Prior to January 1, 1928, the appellant herein was sending all of his children to school at the town of Chapin, outside of the appellee school district, and was personally paying their tuition and the cost of transportation to said school. 1. SCHOOLS AND None of his children was in attendance at school SCHOOL in the appellee school district. On or about the DISTRICTS: first day of January, 1928, the appellees pupils: notified the appellant that they would be insufficient compelled to discontinue the school in said attendance: district unless appellant sent his children to closing said school. It appears that the average daily schools: attendance in said school was less than five duty to pupils. After said notice, the appellant provide continued to send his children to school at school Chapin, and on or about the said first day of facilities. January, 1928, the appellee directors closed the school in said school district, for the reason that the daily average attendance in said school was less than five pupils. The appellant contends that, because of the closing of said school, he is entitled to an order of mandamus compelling the appellees to pay the tuition and the cost of transportation of his children to the school at Chapin.
Section 4231, Code of 1927, provides that:
"No contract shall be entered into with any teacher to teach any school in the school corporation when the average attendance in said school the last preceding term therein was less than five pupils."
Under the stipulated facts, the appellee board of directors was 2. SCHOOLS AND empowered, under the statute, to close said SCHOOL school unless it be that the children of DISTRICTS: appellant of school age who were then residing pupils: with appellant in said school district are to be insufficient counted as pupils, thereby causing the number of attendance: pupils in said school to be in excess of five. duty to Code Section 4232 provides as follows: close school.
"If a school is closed for lack of pupils, the board of such school corporation shall provide for the instruction of the pupils of said school in another school as convenient as may be, and *Page 66
shall pay to the secretary of the school corporation in which such children attend the average cost of tuition and other expenses in such school."
Under Section 4231, it is provided that no contract shall be entered into with any teacher to teach any school "when the average attendance in said school the last preceding term therein was less than five pupils." It is to be noticed that the power to close the school, under this provision of the statute, is predicated upon a situation "when the average attendance in said school the last preceding term therein was less than five pupils." The power to close the school, under this section of the statute, is not predicated upon the question of the number of children in the district of school age. It is predicated upon the average attendance at said school at the last preceding term. Nothing is said in the statute about the number of children of school age residing within the school district. There may be more than five children of school age residing in the school district who, under the compulsory education law, are required to attend school somewhere. It is the number in attendance at said school
at the last preceding term that is made the criterion and basis upon which the authority to close the school is predicated. The school in question was properly closed for lack of attendance of pupils in said school. Code Section 4232 provides that, if a school is closed for lack of pupils, the board shall provide for the instruction of the pupils of said school in another school. Appellant's contention is that his children, because they resided in said school district and are of school age, come within the provisions of this statute, and were "pupils of said school." When Sections 4231 and 4232 are read together, it is clear that the power of the board to close the school for lack of pupils is because the average attendance in said school in the last preceding term was less than five. In said sections the reference is to "pupils in said school" and "the pupils of said school." The appellant's children never were pupils of said school. A child, even of school age, residing in a school district, cannot, in any legal sense, be said to be a "pupil in [or of] said school" when such child never attends said school. A child of school age residing in a school district who is ill and unable to attend school is not a "pupil in said school." A child who attends *Page 67
a public, private, or parochial school outside a school district is a pupil of the school he attends, not of the school in his district which he does not attend.
Webster's New International Dictionary describes a pupil as: "A youth or scholar of either sex under the care of an instructor or tutor." The Standard Dictionary defines a pupil as: "A person of either sex, or of any age, under the care of a teacher." See, also, as bearing somewhat on the question, Board of Commissionersv. Burkey, 1 Ind. App. 565 (27 N.E. 1108), and Commonwealth v.Connecticut Valley St. R. Co., 196 Mass. 309 (82 N.E. 19, 21).
In order to bring the appellant's children within the provisions of this statute, they must have been pupils of said school. This they never were. The appellees were not required to keep said school open for the benefit of appellant's children when they were not pupils in said school and did not attend the same, nor are they compelled to pay the cost of tuition and transportation of said children in some other school, because they were not "pupils of said school" which was closed.
The order of the trial court was right, and it is — Affirmed.
ALBERT, C.J., and De GRAFF, KINDIG, and GRIMM, JJ., concur.
EVANS, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430358/ | By an act of the 44th General Assembly, now chapter 352-D1 of the Code of 1931, the treasurer of state and each county officer having the custody of public funds, the treasurer of each city, town, and school corporation, and each township clerk and secretary of a school board are directed and required to deposit all of such public funds in such banks as are first approved by the executive council, board of supervisors, city or town council, board of directors or township trustees, as the case may be.
The act further provides for the payment of interest by such depository on all such deposits at the rate of not less than two per centum per annum on ninety per centum of the collected daily balances, payable at the end of each month.
It is further provided by chapter 352-A1 of the Code of 1931 that there be created in the office of the treasurer of state a separate fund to be known as the state sinking fund for public deposits. The purpose, as defined by the Legislature, of this fund, shall be "to *Page 730
secure the payment of their deposits to state, county, township, municipal, and school corporations having public funds deposited in any bank in this state, when such deposits have been made by authority of and in conformity with the direction of the local governing council or board which is by law charged with the duty of selecting depository banks for said funds." (Section 7420-a2.)
All interest collected under the provisions of chapter 352-D1 is, by the provisions thereof, diverted from the general fund, or township fund, as the case may be, and shall be paid into the state treasury and kept in the aforesaid sinking fund.
The duties of the state treasurer in relation to said fund are fully defined and prescribed by the statute.
By the provisions of chapter 37, Laws of the 45th General Assembly, "all license fees and taxes collected by the treasurer of state * * * shall accrue to the state sinking fund for public deposits as created in chapter three hundred fifty-two-A one (352-A1) of the 1931 Code of Iowa." (Section 36, subd. b.)
Numerous of the approved depository banks have become insolvent and their affairs placed in the hands of receivers, or, for some other reason, the sinking fund is unavailable and cannot be applied to the purposes for which it was created. The amount thus rendered unavailable is approximately $17,000,000.
By chapter 138, Laws of the 45th General Assembly, referred to in the record as Senate File No. 487, the Legislature sought to make suitable provision for securing sufficient cash to replace all necessary sums tied up in the state sinking fund. The provisions of the act material to this case are as follows:
"Section 1. That, for the purpose of securing funds to replace the moneys of the state of Iowa and all taxing subdivisions thereof which are now unavailable because of having been deposited in banks now closed or operating under senate file number 111 or deposits in banks unavailable because of the execution of waiver or other agreements with respect thereto, the executive council is hereby authorized to negotiate with the reconstruction finance corporation or any other governmental agency subsequently provided or authorized, or any other agency, for the purpose of obtaining from it funds for the purpose aforesaid and to perform any and all conditions imposed by the said reconstruction finance corporation or any other governmental agency subsequently provided or authorized, or any other agency, in consideration of the advancement by it of an *Page 731
amount equal to the amount of public money now on deposit in banks which are either in the process of liquidation or operating under senate file number 111; also such public money deposited in any bank, but unavailable because of the execution of waiver or any agreement with respect thereto, or such lesser amount as in the judgment of the executive council shall be sufficient to relieve the present emergency resulting from the inability to use such funds.
"Sec. 2. To carry out the provisions of any agreement or undertaking entered into between the executive council and the reconstruction finance corporation or other governmental agency, or any other agency, for the restoration or replenishment of the state sinking fund for public deposits, the treasurer of state is authorized to sell, assign, pledge, transfer, and convey any or all of the assets held by him in trust for the said state sinking fund, including claims against defunct banks and trust companies, and anticipated income.
"Sec. 5. The executive council is hereby authorized to annually levy a tax of not to exceed one mill on all taxable property within the state to pay interest on such funds as may be obtained from the reconstruction finance corporation, or such other governmental agency, or any other agency or source, and to provide a fund to retire such installments of the principal sum as may be required by the said finance corporation or agency. In computing the amount of mills to be levied as aforesaid, the executive council shall take into consideration such an amount of the state sinking fund provided by chapter 352-A1 of the code of 1931, as in its judgment may be available for application upon the interest and/or principal required in any year to be paid to the reconstruction finance corporation or governmental agency, or any other agency."
In pursuance of the authority conferred upon it by the foregoing act, the appellant executive council adopted a resolution providing for, and authorizing, the issuance and sale of bonds to be known as public fund bonds in the aggregate principal sum of $20,000,000 to be dated June 1, 1933, in denominations of $1,000, maturing as provided in the resolution of the executive council, the last on December 1, 1943.
The resolution further provides that each of said bonds shall bear interest at the rate of five per centum per annum, payable semi-annually, to be evidenced by coupons; that "both principal and interest shall be payable from the proceeds of an annual special *Page 732
tax and out of the fund hereinafter referred to, at the office of the Treasurer of the State of Iowa, or at the option of the holder, at the office of the Commercial National Bank and Trust Company of New York, in the city of New York, New York, in such medium of funds as are at the time of such respective payments legal tender for the payment of debts due to the United States."
A form of bond is included in and made a part of said resolution. Each bond recites "that the state of Iowa, by its executive council, for value received, but subject to provisions hereinafter provided, hereby promises to pay to bearer, * * *" the sum of $1,000 at maturity.
"Both principal and interest of this bond are payable solely from the proceeds of an annual special tax and out of the fund hereinafter referred to, at the office of the Treasurer of the state of Iowa, or at the option of the holder, at the office of the Commercial National Bank and Trust Company of New York, in the City of New York, New York, in such medium of funds as are at the time of such respective payments legal tender for the payment of debts due to the United States.
"This bond is issued in evidence of funds advanced for restoration and replenishment of the State Sinking Fund for public deposits pursuant to the provisions of Senate File Number 487 of the Acts of the 45th General Assembly of Iowa, effective May 5, 1933, and in conformity with a resolution duly adopted by the Executive Council of the State of Iowa. Both principal and interest of this bond are payable solely from the State Sinking Fund created in accordance with the provisions of chapter 352-A1 of the Code of Iowa, 1931, consisting of (1) interest on public funds on deposit in operating banks, (2) liquidating dividends received in the distribution of the assets of the closed banks representing the public deposits therein which have been restored and replenished from the proceeds of this bond and the issue of which it forms a part, and (3) the proceeds of license fees and taxes collected by the State of Iowa on the sale of beer, all of which have been pledged to and will be used for such payment, and from the proceeds of an annual special tax which has been irrevocably levied on all the taxable property within said State for each of the years 1933 and 1934 and thereafter to the extent necessary and as may be permitted by law, all in accordance with the provisions of said Senate File Number 487." *Page 733
It is further provided in said bond "that this bond does not constitute an indebtedness of the State of Iowa within the meaning of any of the provisions of Article VII of the Constitution of the State of Iowa, and that the total obligation of said State, including this bond, does not exceed any constitutional or statutory provisions or limitations whatsoever."
The resolution of the executive council further recites:
"This Executive Council hereby orders and directs that pursuant to the provisions of said Senate File Number 487, and so long as any of said bonds remain outstanding and unpaid, there shall be and there is hereby levied annually, commencing with the levy for the year 1933, a special tax at the rate of not to exceed one mill on all taxable property within said State to pay interest on such bonds and the principal thereof as the same will respectively become due, provided, however, such tax shall be levied and collected during each such year to the extent and in the manner as may be from time to time permitted and provided by law, and also provided that the amount of such tax to be annually levied as aforesaid shall be only such as may be required to meet any deficiency in the payment of said principal and interest out of available funds from time to time accumulated in the State Sinking Fund as created by Chapter 352-A1 of the Code of Iowa, 1931, as amended and supplemented.
"Section 8. That it is hereby covenanted and agreed that notwithstanding any of the foregoing provisions of this resolution to the contrary, there shall be and there is hereby ordered levied in each of the years 1933 and 1934 the tax at the full rate authorized by said Senate File number 487, and any accumulations from the proceeds of said tax in excess of the current requirements shall be converted into a reserve fund by the Treasurer of State for further assurance of prompt payment of the principal and interest. In like manner all funds becoming available from taxes levied subsequent to the year 1934 as hereinbefore provided and all funds becoming available in the State Sinking Fund in excess of current requirements for the payment of the principal and interest of such bonds in each year, shall be converted into said reserve fund."
The purpose of this action, commenced as already stated, in the name and by and on behalf of two resident citizens and taxpayers of the state of Iowa, is to enjoin the issuance and sale of said *Page 734
public fund bonds upon the ground, among others, that chapter 138, Laws of the 45th-General Assembly, is violative of sections2 and 5 of article 7 of the Constitution of the state of Iowa, which are as follows:
"Limitation. Sec. 2. The State may contract debts to supply casual deficits or failures in revenues, or to meet expenses not otherwise provided for; but the aggregate amount of such debts, direct and contingent, whether contracted by virtue of one or more acts of the General Assembly, or at different periods of time, shall never exceed the sum of two hundred and fifty thousand dollars; and the money arising from the creation of such debts, shall be applied to the purpose for which it was obtained, or to repay the debts so contracted, and to no other purpose whatever.
"Contracting debt — submission to the people. Sec. 5. Except the debts herein before specified in this article, no debt shall be hereafter contracted by, or on behalf of this State, unless such debt shall be authorized by some law for some single work or object, to be distinctly specified therein; and such law shall impose and provide for the collection of a direct annual tax, sufficient to pay the interest on such debt, as it falls due, and also to pay and discharge the principal of such debt, within twenty years from the time of the contracting thereof; but no such law shall take effect until at a general election it shall have been submitted to the people, and have received a majority of all the votes cast for and against it at such election; and all money raised by authority of such law, shall be applied only to the specific object therein stated, or to the payment of the debt created thereby; and such law shall be published in at least one newspaper in each County, if one is published therein, throughout the State, for three months preceding the election at which it is submitted to the people."
The act in question does not, in terms, authorize the executive council to issue and sell bonds, but, unless it be interpreted as conferring authority upon said council to enter into some form of contract or obligation to pay, the act is meaningless and without effect. We shall treat the obligations described exactly as they are denominated, that is, as bonds. The only obligor on the proposed bonds is the state of Iowa. It alone promises to pay them. The obligation assumed is to pay the aggregate sum of $20,000,000 as principal, together with the interest thereon, according to their terms. That the *Page 735
obligation assumed is not to pay casual deficits or failure in revenues, or to meet expenses not otherwise provided for would appear to be obvious.
If the proposed bonds create a debt of the state of Iowa, such debt, on the face of it, is greatly in excess of $250,000, and in clear violation of section 2. Furthermore, if it creates a debt in excess of $250,000, it is clearly violative of section 5. No provision is made for the levy and collection of a direct annual tax sufficient to pay the interest as it falls due and also the principal within the period fixed, nor is provision made for submitting the proposal to a vote of the electors as thereby required.
Is it proposed in the present instance to create a debt of the state of Iowa for some purpose not authorized by sections 2 or 5 of article VII of the Constitution, or in excess of $250,000? The answer to this inquiry involves the interpretation of the act in question and the resolution of the executive council. As already appears, the state sinking fund created as stated above, together with all accruals thereto, is pledged to the payment of the bonds, both principal and interest as they mature. For the purpose of this case, we shall assume that the sinking fund augmented by the revenues derived under the provisions of chapter 37, Laws of the 45th General Assembly, are in all respects legally available for the contemplated purpose. The funds on deposit in insolvent banks and banks operating under Senate File 111 (Acts 45th Gen. Assem. c. 156) aggregate approximately $17,000,000. It is estimated that the one mill levied for the years 1933 and 1934 will yield approximately $7,400,000 and that the revenues from license fees and barrel taxes during the year 1933 will be from one-half to three-quarters of a million dollars, and that $1,000,000 will be realized from interest on public deposits during the same period and that other revenues will be available from public funds in liquidating banks. None of the funds thus anticipated and to be raised will be derived from taxes levied upon the property of the state. The proceeds to be realized from the proposed sale of bonds is to be used and distributed to the several sub-divisions entitled thereto, the same as the sinking fund would have been if there had been no defalcation on the part of the approved depositories of public funds.
As commonly and ordinarily understood, a debt includes every obligation by which one person is bound to pay money to another. Buena Vista County v. Marathon Sav. Bank, 198 Iowa 692, *Page 736 196 N.W. 729, 200 N.W. 199. When used in the constitutional sense, it is given a meaning much less broad and comprehensive than it bears in general use. Swanson v. City of Ottumwa, 118 Iowa 161,91 N.W. 1048, 59 L.R.A. 620; Barnes v. Lehi City, 74 Utah 321,279 P. 878.
The courts of many jurisdictions have sustained the constitutionality of legislative enactments providing for the issuance of bonds to be sold for public purposes, payment thereof to be made solely out of a special fund authorized by the respective acts, the said fund to be raised wholly by other methods and without the imposition of a tax upon property. Kasch v. Miller, 104 Ohio St. 281, 135 N.E. 813; Garrett v. Swanton (Cal.App.) 3 P.2d 1025; Garrett v. Swanton, 216 Cal. 220,13 P.2d 725; Lang v. City of Cavalier, 59 N.D. 75, 228 N.W. 819; Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153; State v. Moorer, 152 S.C. 455, 150 S.E. 269; Williams v. Village of Kenyon (Minn.) 244 N.W. 558, 559.
It is the contention of counsel, as we understand it, that the proposed bonds are to be paid solely out of the sinking fund and from the levy of taxes for the current biennium. It is recited in the bonds that bonds do not constitute an indebtedness of the state of Iowa within the meaning of any of the provisions of Article VII of the Constitution of the state of Iowa, but each instrument must be considered as a whole and given effect according to the intention expressed. The proposed bonds specifically recite as we have already shown, that both principal and interest are payable from an annual special tax and out of the state sinking fund. It must be assumed that the purpose of both the legislature and the executive council has at all times been to use every dollar available in the sinking fund to pay the proposed obligations. There is no way of determining the aggregate amount that will be realized from the sinking fund within the ten-year period. It is obvious that it will not be sufficient for that purpose within the current biennium. The obligation assumed by the state is to pay the aggregate amount of the bonds, together with interest thereon. This obligation must be met by one or both of the methods provided in the bond therefor, that is, either from the sinking fund, the special tax, or both. An annual tax sufficient to meet any deficit arising under the terms of the bonds is to be levied. This may, or may not, in any given year or biennium, exceed $250,000. No rule is provided in advance for determining this fact. *Page 737
Much reliance is placed by counsel for appellant upon the holding of this court in Rowley v. Clarke, 162 Iowa 732,144 N.W. 908, 912. That case involved the constitutionality of certain or all of the provisions of chapter 14, Laws of the 35th General Assembly, which provided for the extension and improvement of the state capitol grounds. For the purpose of carrying out the design of the act the executive council was authorized and directed to purchase real estate within certain prescribed limits. The act provided for the levy of a tax of one-half mill on the dollar of the taxable property in the state for the years 1913 and 1914 and an annual tax thereafter for eight years to be fixed by the executive council, sufficient to yield approximately $150,000 annually. The court held that the act came within the provisions of section 2 authorizing the incurring of indebtedness not in excess of $250,000 for the purpose of meeting expenses not otherwise provided for. The act also provided for the issuance of certificates or warrants drawn upon funds created thereby for the payment of the purchase price of real estate, but said warrants and certificates not to be issued in excess of taxes authorized or to be levied to secure the payment of such obligation. The court held that the act did not create a debt of the state because issued in anticipation of taxes to be levied and collected within each biennium period. The court in this connection said:
"II. Certificates or warrants issued in anticipation of revenues collectible within the biennial period and payable therefrom do not create a `debt' within the meaning of that term as used in the Constitution. The General Assembly convenes on the second Monday of January of the odd-numbered years and provides for revenues necessary to the performance of the different governmental functions during the ensuing two years. Its power of taxation is unlimited, and the taxes authorized to be levied and collected are legally certain to reach the state treasury, and therefore are as certainly available to meet the expenses authorized as are those collectible annually by a municipality.
"It is well settled in this state that a municipality may anticipate the collection of taxes, and in defraying ordinary expenses may make appropriations and incur valid obligations to pay `in advance of the receipt of its revenues,' even though the treasury be empty, and no actual levy made, and the city be otherwise indebted to the full limit. Grant v. City of Davenport,36 Iowa 396; Dively v. City of Cedar Falls, 27 Iowa 227; French v. City of Burlington, 42 Iowa 614; *Page 738
Phillips v. Reed, 107 Iowa 331, 76 N.W. 850, 77 N.W. 1031; City of Cedar Rapids v. Bechtel, 110 Iowa 198, 81 N.W. 468. In some other states the levy of taxes must actually have been made in order to warrant the anticipation of revenues by issuing warrants in advance."
The holding of the court in the Rowley case clearly does not sustain the contention of appellant. The conclusion there reached has abundant support in authority. Herrin v. Erickson, 90 Mont. 259,2 P.2d 296; State Budget Commission v. Lebus, 244 Ky. 700,51 S.W.2d 965; Billeter Wiley v. State Highway Commission,203 Ky. 15, 261 S.W. 855; Eastern Western Lumber Co. v. Patterson, 124 Or. 112, 258 P. 193, 264 P. 441, 60 A.L.R. 528; State v. Candland, 36 Utah 406, 104 P. 285, 24 L.R.A. (N.S.) 1260, 140 Am. St. Rep. 834; State v. Lister, 91 Wash. 9,156 P. 858; State Capitol Commission v. State Board of Finance, 74 Wash. 15,132 P. 861; State v. Donald, 160 Wis. 21, 151 N.W. 331; State v. McMillan, 12 N.D. 280, 96 N.W. 310.
The court also in the Rowley case continually emphasized the limitation provided in section 2 of article VII of the Constitution. It is not possible to determine the levy to be made by the executive council, under the authority sought to be conferred in this case, that would be necessary to meet the deficit resulting from the failure of the state sinking fund. The extent of the obligation proposed to be assumed by the state in the present instance is limited by the aggregate amount of the bonds, together with the interest thereon. The limit of indebtedness created by the state at best is the full aggregate amount less the proceeds of the levy for the current biennium and the amount presently and ultimately available in the sinking fund. It is, of course, conceded that any future legislature may repudiate the obligation and repeal the act in question. The character of the obligation assumed must, however, be determined as of the time of its creation. The deficit to be paid out of the proceeds of the state levy to be made annually by the executive council may in each year, or in the aggregate, substantially and possibly many times exceed $250,000. This is the most favorable statement that can be made of the proposition. No one claims that the obligation assumed may be extinguished by the income from all possible sources during the current biennium.
What we conclude is that the act proposes an indebtedness of the state in excess of the authorization expressed in section 2, *Page 739
article VII, of the Constitution and that in no respect complies with the provision of section 5 of said article, including the submission of the proposal to a vote of the electors. Furthermore, as previously indicated, the indebtedness sought to be created is not for the purpose of meeting casual deficits or failure in revenue or to meet expenses not otherwise provided for.
We have deemed it best, upon the record before us, not to pass upon the remaining propositions urged by appellee. On these questions, which it is unnecessary now to decide, we express no opinion. We deem it advisable, however, to say that the contention of appellee that the act violates article III of the Constitution in that it delegates the taxing power of the general assembly to the executive council presents an interesting and doubtful question.
It is true, as contended by counsel for appellant, that courts will not declare a statute invalid if it can by any possibility be sustained.
The court has given due regard to this well established and much to be commended principle. What we conclude is that the act in question is invalid because it authorizes the creation of a debt in excess of the constitutional limitation without provision for the submission of the proposal to a vote of the electors, as required by section 5, article VII, of the Constitution.
It follows that the judgment and decree of the court must be and it is affirmed. — Affirmed.
All Justices concur, except EVANS, J., who takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430365/ | I respectfully dissent from the majority opinion and also from portions of the dissenting opinion of the chief justice, although I concur in the result reached in the latter opinion, which will be referred to herein as the dissenting opinion.
The note and mortgage were executed April 16, 1925, and the note was due April 16, 1927. It was not paid, and since the bar of the statute of limitations was not suspended or extended in any way prior to April 16, 1937, it became effective against the enforcement of both the note and the mortgage on that date. On March 2, 1936, while the note and mortgage were still enforceable, Mitchell secured a judgment against the mortgagor, who has at all times pertinent owned the land. This judgment, on the date last given, became a lien upon the land, as provided by section 11602, Code of 1935, but subject to said mortgage. It continued thereafter to be a lien. When the bar of the statute, *Page 1115
on April 16, 1937, became effective against the note, the latter became unenforceable, and the mortgage, which was but an incident of the note, also became unenforceable. Actions to enforce either one were banned by section 11007 (6) of the Iowa Code — the general statute of limitations. In the words of the layman, they were "outlawed." When the bar of the statute became effective against the note, the lien of the mortgage upon the land terminated instantly. It ceased to exist. It is immaterial what became of it; the important fact is that it was not then a lien upon the land covered by the mortgage. The decisions of this court agree upon this. The language in each opinion may not always be the same, but there can be no fair doubt of the meaning of the language, or the thought, or intention expressed by the court. I will refer to but a few of these cases. In Clinton County v. Cox, 37 Iowa 570, 571, the court said:
"When the debt is discharged or, by operation of law, may nolonger be enforced ITS FUNCTIONS TERMINATE, and not before. [Citing seven decisions of this court.] These principles determine the question before us, for, unless it appears that the debt is discharged, or is, under the law, no longer capable ofbeing enforced, the deed of trust stands as a security for its payment." (Italics and capitals supplied.)
Can there be any reasonable question of the meaning of the capitalized words? Plainly they mean that the mortgage is no longer a lien on the land, that it no longer "stands as a security" for the payment of the note. Neither can there be any fair doubt as to the meaning of the italicized words. They clearly refer to the bar of the statute of limitations, and to no other "law," or "operation of law."
In Kerndt Bros. v. Porterfield, 56 Iowa 412, 414, 9 N.W. 322,323, upon which the majority opinion is largely based, the court said:
"An action to foreclose a mortgage is not barred by the statute of limitations so long as the debt remains unpaid and capable ofbeing enforced. Brown v. Rockhold, 49 Iowa, 282; Clinton County v. Cox, 37 Iowa, 570. The mortgage is an incident of the debt andfollows it, and its existence as a lien is only terminated whenthe debt ceases to be enforceable." *Page 1116
Under section 11007 (6) and under the repeated decisions of this court, the mortgage debt, on April 16, 1937, "ceased to be enforceable," and under the decision quoted and our pertinent decisions generally, the "existence of the mortgage as a lien (was) terminated."
In Fitzgerald v. Flanagan, 155 Iowa 217, 221, 222,135 N.W. 738, 740, Ann. Cas. 1914C, 1104, which is the latest decision of this court on the particular matter which I am now discussing, the court, after stating that in those jurisdictions (citing many decisions) in which a real-estate mortgage creates an estate in the land "the mortgage security is not extinguished, although the debt be barred," continues thus:
"But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Minnesota, Kansas, Mississippi (by recent statute), Missouri (by recent statute), Nevada, Texas, and in Wyoming, the mortgage, being considered a mere incident to the debt, is, as a general rule, extinguishedwhen the debt for which it is given is barred by the statute oflimitations." (Citing decisions of the courts in the states named. Italics supplied.)
On the page following the quotation, Justice Deemer indicates what he meant by the phrase, "as a general rule," by noting some exceptions in the other states mentioned. No one would seriously dispute that this definite and unambiguous language states and means that when the debt is barred the mortgage securing it is extinguished. If contemporaneous construction were needed, one may turn to the dissenting opinion of Justice Weaver, who thought the evidence insufficient to sustain the decree, where he states, at page 233 of 155 Iowa, page 744 of 135 N.W.:
"The contention on his [Justice Deemer's] part has been that, under the statutes and repeated decisions of this court, a mortgage in this state does no more than to evidence a lien or security for the payment of a specified debt, and that, when the right to enforce that debt is lost by the effect of the statute of limitations or otherwise, the lien or security which is a mereincident thereto falls with it, a position so emphaticallyaffirmed by this court that it is an uncalled for waste of timeto cite the precedents." *Page 1117
I will make no comment upon the attempt of the majority opinion to read a different meaning into other language in the Fitzgerald case.
At the same instant the lien of the mortgage upon the land "ceased to exist," was "terminated" and "extinguished," the lien of the Mitchell judgment superseded the lien of the mortgage in effect and priority and became the first lien upon this land. This cannot be successfully controverted.
On October 5, 1937, which was subsequent to the date when the statute of limitations became effective against the note and mortgage and at a time when the mortgage was not a lien upon the land, Eichhoff procured a judgment against the mortgagor, which upon its rendition became a statutory lien upon the land of the mortgagor. The lien of this judgment was junior and subject to the lien of the Mitchell judgment.
On March 7, 1942, approximately seventeen years after the note was given, fifteen years after it was due, four and a half years after it was outlawed, and six years after the Mitchell judgment was rendered, Doan, the holder of the note, Joe Burns, the maker, and Damien Burns, brother of Joe, got together, and, for a cash consideration of $50 paid by Damien to Doan and the promise of $100 more if the mortgage could be made effective, the note and mortgage, evidencing a face value in excess of $2,000, were assigned by Doan to Damien Burns, and Joe Burns and wife revived the note by executing a written admission of and promise to pay the indebtedness, as provided by section 11018, Code of 1939. Such a statutory provision has been in effect since the Code of 1851. It is a proper and wise provision. It is akin to the rule of procedure that the defense of the statute of limitations must always be pleaded. Certainly a debtor must be accorded the right to waive the statute or to extend or renew the life of his financial obligations. That we believe is a primary purpose of the legislation. As between the debtor and the creditor, the revivor may be made either before or after the statute of limitations has run.
The majority opinion gives priority to the mortgage over the first judgment (Mitchell), and priority to the second judgment (Eichhoff) over the mortgage, and priority to the first judgment over the second judgment. In commenting upon the *Page 1118
theory responsible for this conclusion, the opinion, in its fourth division, states:
"1 Black on Judgments, 2d Ed. 710, section 456, refers to it as `an extremely interesting and peculiar question — called the "triangular question" * * *.' See, also, 31 Am. Jur. 38. Holliday v. Franklin Bank, 16 Ohio 533, 535, states: `If it be attempted to settle the question upon the principle of superiority, it runs in a circle and produces no result'."
Without running in a circle, I readily agree with certain results reached in the majority opinion, to wit, that the Eichhoff judgment is prior to the mortgage and the Mitchell judgment is prior to the Eichhoff judgment. But I carry the syllogism to its necessary conclusion and hold that the Mitchell judgment is therefore prior to both mortgage and the Eichhoff judgment.
I concede that there is one decision of this court under which the holding in the majority opinion that the mortgage is prior to the Mitchell judgment may be sustained unless it is defeated by the "controlling equities" theory in that decision, which the chief justice insists is controlling in the determination of the appeal before us. That decision is Kerndt Bros. v. Porterfield, supra, 56 Iowa 412, 415, 9 N.W. 322, 324. It is an unsound opinion, in my judgment. Not only because it disregarded the controlling equities, a matter with which we are not concerned, but because of the unsound rule of law on which the decision is based. In that case, Porterfield executed a note and a mortgage on his land securing the indebtedness. Before the note was barred he executed two other notes secured by a mortgage on the same land to another party. I think it may be fairly assumed that the two notes and the second mortgage were given for valuable consideration received at the time of their execution. After the statute of limitations had run against the first note and mortgage, and after he had given the second note and mortgage, and after foreclosure proceedings had been started on the same, but before decree and sheriff's deed thereunder, Porterfield executed a written promise to pay the first note and thereby revived that note and the mortgage securing it. The trial court gave priority to the second mortgage. This court reversed, and held that the new promise removed the bar of the statute as a defense to the *Page 1119
foreclosure of the first mortgage and the court ordered it enforced as a lien prior and superior to the second mortgage. I will quote a part of the reasoning given in support of this court's conclusion, to-wit:
"When his [the second mortgagee's] interest was acquired, he took it subject to the [first] mortgage, with the knowledge that the debt could be revived by a new promise and the mortgage lien would stand as long as the debt existed. When the mortgage is foreclosed under a new promise removing the bar of the statute, he is in no different condition than he was in when he acquired his interest. If he was satisfied to acquire his interest while it was subject to the mortgage, he ought to be content to hold it in that condition. He can urge no equity which will relieve his property from the lien of the mortgage. Waterson v. Kirkwood,17 Kan., 9; Schumaker [Schmucker] v. Sibert, 18 Kan., 104. * * * It seems that a different rule is recognized in California. See Wood v. Goodfellow, 43 Cal., 185."
It is true that the second mortgagee took his mortgage subject to the first mortgage, and he knew that the life of the first note and the lien of the first mortgage might be prolonged by a revivor before the bar of the statute of limitations became effective. In such event the lien of the first mortgage would not be suspended, and the second mortgage would remain a second mortgage during the prolonged period. This never happened. He also knew when he took his notes and mortgage that the first mortgagee might not press his claim during the limitation period, either from choice or from lack of diligence, in which event the lien of the first mortgage would be extinguished and his mortgage would supersede it as a first lien. This is just what did happen. When he took his notes and second mortgage he took them subject to whatever advantages or disadvantages might accrue to him. He was entitled to the advantages which did accrue to him through the carelessness or indifference of the first mortgagee. The opinion in the Kerndt case states that "he can urge no equity." Was it not an equity and a benefit to him that his mortgage was advanced from a second to a first lien? When the statute had run against the first note and mortgage, the second mortgagee was in a more advantageous position than he was when he received *Page 1120
his notes and mortgage. The decision deprived him of that advantage. The fact that he did nothing to bring about his improved position is not a sound reason for depriving him of that advantage. Neither is there merit in the expressed reason of the court that the second mortgagee was in no worse condition than when he first took his mortgage. One is ordinarily entitled to any advantage which rightfully comes to him in the course of events, or "the march of time."
I wish at this point to speak of a matter on which Justice Oliver and I are in accord, that is, that a junior judgment lienholder may plead the bar of the statute of limitations against a prior secured debt. The chief justice disagrees with us and comments on the matter in his dissent. What I say on that point is therefore directed to that part of the dissenting opinion.
In the Kerndt case there was no question raised that the second mortgagee could not plead the bar of the statute against the first mortgage. He undoubtedly had that right. He had a lien upon the property covered by the first mortgage and a definite interest therein. As said in 17 R.C.L. 963, section 331:
"Broadly speaking any person who claims title to, or interest in, any real estate may invoke the aid of the statute of limitations as against a claimant whose claim is prior in time to the person invoking the aid of the statute, where the prior claim has been barred by the statute of limitations."
In 37 C.J. 707, 710, section 27, the author states:
"In a suit to foreclose a mortgage the statute of limitations may be invoked by any person who has an interest in the real estate sought to be foreclosed."
Numerous decisions support the principle as stated above. Subsequent grantees and mortgagees, holders of tax titles, and junior lienholders of all kinds, may invoke the defense. A judgment creditor, having a general lien upon the property of the mortgagor, may plead the statute against the cause of action of a prior mortgagee on a note and mortgage. Buss v. Kemp Lbr. Co.,23 N.M. 567, 170 P. 54, L.R.A. 1918C, 1015.
In Davis v. Bartz, 65 Wash. 395, 398, 118 P. 334, 335, the court said: *Page 1121
"It follows of necessity that any one interested, whether as owner, mortgagee, lien claimant, or otherwise; any one who may defend against the lien, or show by competent evidence that it is not a lien as against his interest, has the right to invoke the statute if the action is not commenced as against him within the statutory period."
It is often said that the right to plead the statute of limitations is a personal privilege of the debtor, but it has been many times held that others may also plead the defense when it is necessary to protect property rights. After a review of the cases, the court, in Brandenstein v. Johnson, 140 Cal. 29, 32,73 P. 744, 745, said:
"The theory of all the cases above cited is, that while the general rule is, that the plea of the statute of limitations is a personal privilege, that rule does not extend to subsequent property rights over which he has no control."
Other decisions, and authorities from many more, which could be cited, are Graves v. Seifried, 31 Utah 203, 87 P. 674; Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 576, 113 P.2d 963, 136 A.L.R. 770; Kiel v. Staber, Tex. Civ. App., 116 S.W.2d 809.
It is sometimes asserted that only one in privity with the debtor may set up the defense of the statute. The courts are becoming quite liberal in broadening the meaning of the term "privity," and extending the relationships within its scope. In Stryker v. Rasch, supra (opinion on petition for rehearing, 113 P.2d 963), the court held that an adverse possessor of mortgaged premises might plead the statute of limitations, as against the contention that the bar of the statute might only be raised by one in privity with the mortgagor. In Buss v. Kemp Lumber Co., supra, 23 N.M. 567, 572, 170 P. 54, 55, L.R.A. 1918C, 1015, the court said:
"A majority of the cases sustain the view that a judgment creditor, in cases like those at bar, is in privity of estate with the mortgagor, his judgment debtor, and that he may plead the statute of limitations. In such cases it would seem on principle that no distinction can be made between the right of a judgment creditor to plead the statute and the right of a junior mortgagee." *Page 1122
In Lord v. Morris, 18 Cal. 482, 491, speaking on the matter of the personal privilege, the court said:
"But with respect to property placed by him [the debtor] beyond his control, or subjected by him to liens, he has no such personal privilege. He cannot at his pleasure affect the interests of other parties. His grantees or mortgagees, with respect to the property, stand in his shoes, and can set up any defense that he might himself have set up to the action, either to defeat a recovery of the property or its sale."
See, also, Brandenstein v. Johnson, supra, 140 Cal. 29,73 P. 744, and DeVoe v. Rundle, 33 Wash. 604, 74 P. 836, in each of which a junior judgment lienholder was permitted to plead the bar of the statute against the enforcement of what had been a superior lien. Other cases in point are Foster v. Butler,164 Cal. 623, 130 P. 6; Paramount Securities Co. v. Daze, 128 Cal. App. 515,17 P.2d 1049; Fakes v. Vilven, Tex. Civ. App.,119 S.W.2d 895; Flack v. Boland, 11 Cal. 2d 103, 77 P.2d 1090.
While it is a well-recognized principle that limitation statutes generally pertain to the remedy only, and are therefore subject to legislative control, yet, when the limitation has once become fixed and effective, the great weight of authority supports the sound principle that its acquisition is an absolute right, and a vested asset, which not even the legislature can take from its possessor.
While no one has a vested right in the continuation of any statute of limitation with respect to any past or future demands against him, which would prevent its legislative modification or repeal so long as the statutory period has not already elapsed against any of these demands, yet the authorities and decisions are in practically complete accord that, if the statute has completely run and barred the action against a person on a particular debt, he has a vested right to rely on that statute as a defense of which he cannot be deprived against his will. For an instructive opinion on the question, see Board of Education v. Blodgett, 155 Ill. 441, 447, 40 N.E. 1025, 1027, 31 L.R.A. 70, 46 Am. St. Rep. 348, wherein the court said:
"In almost all of the States of the Union in which the question has arisen, it has been held that the right to set up the bar *Page 1123
of a statute of limitations as a defense to a cause of action, after the statute has run, is a vested right, and cannot be taken away by legislation, either by a repeal of the statute without saving clause or by an affirmative act, and that it is immaterial whether the action is for the recovery of real or personal property, or for the recovery of a money demand, or for the recovery of damages for a tort." (Citing many authorities.)
See, also, Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447; Moore v. State, 43 N.J. Law 203, 39 Am. Rep. 558; Kiel v. Staber, supra, Tex. Civ. App., 116 S.W.2d 809, 811; Town of Bradford v. Brooks, 2 Aikens (Vt.) 284, 16 Am. Dec. 715; 17 R.C.L. 674; Thompson v. Read, 41 Iowa 48; 34 Am. Jur. 23, section 13; id. 37, section 33.
In the Kerndt case, supra, this court deprived the second mortgagee of a vested right which had accrued to him by reason of the bar of the statute of limitations against the enforcement of the first note and the consequent removal of the first mortgage as a prior lien.
In the opinion in that case the court cited two Kansas decisions in support of its holding, and a California decision which it said was apparently to the contrary. The first case cited, Waterson v. Kirkwood, 17 Kan. 9, has but slight, if any, application to the point involved. In that case the court held that the resident grantees of the former owner-debtor could not plead the bar of the statute against the owner's debt and mortgage on their land, because the statute was tolled against the debtor by reason of his absence from the state. This decision is contrary to the California case cited and to the great weight of authority. The second case cited, Shumaker v. Sibert,18 Kan. 104, 111, 26 Am. Rep. 765, 769 (the title is Schmucker v. Sibert), in my opinion is more against the decision in the Kerndt case than for it. It holds that the revivor of a note barred by the statute of limitations will revive a mortgage executed to secure it, so far as the interest of the mortgagor in the premises but not as to a grantee of the mortgagor receiving deed previous to such revivor. The court said:
"* * * When the note is barred, the mortgage is also barred, and no subsequent payment, promise, or acknowledgment *Page 1124
can revive the mortgage as to property which the mortgagor has prior thereto conveyed to a third party. Whenever the mortgage is barred, the property is free from the lien. It is, as respects the mortgage, as though the latter had never existed. If therefore the mortgagor no longer owns the property, he cannot impose a burden upon it — his power to bind the property has ceased. He is as powerless over it as though he had never owned it. He can revive the note, as he could give a new note, for no rights but his own are involved. He can revive the old mortgagejust so far and so far only as he could give a new mortgage, andthat is, to bind his own property. Day v. Baldwin, 34 Iowa, 380." (Italics supplied.)
The decision is sound law and has the support of reason and good common sense, as all sound law has. This comment is repeated in Richards v. Baker, 186 Okla. 533, 99 P.2d 118, 119.
The majority opinion cites cases of this court holding that a mortgage does not convey any estate in the land. No one is making a contrary contention. A real-estate mortgage is but a specific lien, a security. It is also an encumbrance. It evidences a parting or setting aside of a portion of the value of the land as security for a debt and which may be taken to pay that debt. It is a reduction of the owner's equity in the land and a pledge of it to another. It is placing a valuable interest in the land in another. A mortgage, in fact and effect, is a pro tanto sale. But whether it be a sale or a mortgage, a deed or a trust deed, the interest which is parted with by sale or by mortgage cannot be affected by a revivor of the debt by the owner-mortgagor after the sale or mortgage is made, and after the debt has been barred by the statute of limitations. The revivor can affect only the equity or interest retained by the debtor. It cannot affect or displace the priority of the lien which attached when the bar became effective and prior to the subsequent revivor. To do so would be a reduction in the value of the junior mortgagee's security. It is, of course, the privilege of the debtor to, at any time, revive the debt against himself, and to revive the lien of the mortgage against any interest in the land which he retains, at any time within the twenty-year life of the mortgage; but it is an unjust and an unsound rule of *Page 1125
law which permits the debtor, by such revivor, to impair or destroy any interest, security, value, or equity which he has transferred to another. I know of no decision to the contrary where the debtor has conveyed the land, or his equity of redemption therein, by deed — that is, where he has parted with all interest in the land. What I contend for is that there is no difference in principle, and should be no difference in law, between such a transaction and a mortgage — between a straight deed and a trust deed, or a deed with a defeasance clause. In the Kerndt case the junior lien was by a mortgage. In the case before us the junior liens were effected by judgments. But there is no difference with reference to the point in issue. In either event the lien is brought about by the conduct of the debtor. If he had confessed the judgments, the liens would have been created by his direct action, but when he contracts debts which result in judgments, the liens thereof are just as certainly created by him, though, perhaps, more indirectly. The fact, as the authorities cited herein show, that persons interested in the real estate in any way — grantees, mortgagees, lessees, holders of tax titles, judgment lienholders, and junior lienholders of all kinds — may plead the statute of limitations as a defense, is quite significant, and is definite proof that the same principle applies to all, and that whatever interest any of them may have is protected against such a revivor as we have in this case.
I make no contention that Mitchell would have any right to plead the statute had the revivor taken place before the bar of the statute became effective, nor do I contend that Eichhoff would have any case if he had obtained his judgment after the revivor — the reason, as applied to the first instance, being that the lien of the mortgage would never have been removed or extinguished, and the Mitchell lien would never have advanced in seniority, and in the second instance, the mortgage lien would have been restored before the Eichhoff judgment was rendered. As to liens attaching after the expiration of the statutory limit, the test is, Was it before or after the revivor? If before, the lien takes precedence; if after, the restored mortgage lien takes precedence. Authority for these statements is found in decisions and authorities cited or relied upon in the majority opinion. *Page 1126
In Clark v. Grant, 26 Okla. 398, 400, 109 P. 234, 28 L.R.A., N.S., 519, Ann. Cas. 1912B, 505, the prior mortgage lien became barred by the expiration of the statutory limit, and thereafter it was revived. After the revivor the judgment liens attached. The court held that the restored mortgage lien took precedence. I subscribe fully to such a rule. But that is not what happened in this case. Here, both of the judgments were in existence and had attached before the revivor. The holding in the Clark case sustains both the Mitchell and the Eichhoff judgments. That court said:
"As the mortgage is a mere incident to the note, subsequent revivor thereof by part payment after it is barred revives not only the note but also the mortgage, and that, too, as against judgment lienors, such as plaintiffs in error, whose liens didnot attach to the mortgaged property until after said payment andconsequent revivor."
But immediately following in the Oklahoma opinion is this significant sentence:
"It is only such as have an interest in the mortgaged propertyacquired prior to the revivor whose rights thereby remainunaffected. Childs v. Thompson, 81 Mo. 337; Courtner v. Etheredge et al., 149 Ala. 78, 43 So. 368; Schmucker v. Sibert,18 Kan. 104, 26 Am. Rep. 765; Hubbard et al. v. Mo. Val., etc., Ins. Co.,25 Kan. 179; Capital Co. v. Merriam, supra, [60 Kan. 397,56 P. 757]." (Italics supplied.)
Had the judgment liens in the Oklahoma case been acquired prior to the revivor, as are the judgment liens in this case, that court would have sustained them.
The majority opinion quotes at length from Consolidated National Bank v. Van Slyke, 27 Ariz. 501, 508, 234 P. 553, 555, 38 A.L.R. 825, relative to the irreconcilable conflict between the equitable principle which I contend is the sounder and the equitable principle urged in the majority opinion and the dissent of the chief justice. The majority opinion terms the latter principle the "majority rule," but I do not find it so designated by any authority in that opinion. However, when the Arizona court decided the case it resolved its doubts in favor of the second *Page 1127
rule, for two reasons, one being that, while the statute of limitations is a legitimate defense, it is not one of right but of repose and not to be extended beyond its plain terms; "and, second, because in our opinion the waiver of the statute of limitations in favor of a prior lien, made before the statute hasrun, does not impose an inequitable burden on a junior lienholder who acquired his lien, with that prior lien, to his knowledge, actual or constructive, still enforceable." (Italics supplied.)
I have no quarrel with such a position. I have already stated that had the revivor taken place before the statute had run against the Burns note Mitchell would have no case, simply because in such event the lien of the Burns mortgage would never have been lost. Its life would have been prolonged before it was ended, and the Mitchell judgment would have remained a second lien. But that is not what happened. The Van Slyke case, on its facts, is not applicable to this one, but it is not unreasonable to assume that if the revivor had been after the bar of the statute, instead of before, as it was, the court would have decided that such revivor would have placed "an inequitable burden" on the junior lienholder.
The majority opinion quotes at length a discussion of the "two distinct and opposing lines of authority" in Smith v. Bush, supra, 173 Okla. 172, 175, 44 P.2d 921, 923. But the situation in that case is identical with that in the Van Slyke case, supra. The lien of the mortgage was never lost by lapse of time. The note was renewed in writing before the expiration of the statute and was kept alive by payments until the suit was brought. The court, in its decision, said:
"We accordingly hold in this case that the statute of limitation is not available to the defendants herein [they held leases for oil, gas, etc.] for the reason that within five yearsprevious to the commencement of this action, interest paymentshave been made by the mortgagors, who are the debtors on the note secured by the mortgage and who still own an interest in the mortgaged premises."
There is nothing in the decision in Smith v. Bush, supra, indicating in any way a departure from the sound principle *Page 1128
announced in Clark v. Grant, supra, at page 400 of26 Okla., page 234 of 109 P., to wit:
"It is only such as have an interest in the mortgaged propertyacquired prior to the revivor whose rights thereby remain unaffected." (Italics ours.)
The majority opinion states:
"It will be noted that the reasons given in Smith v. Bush and the Van Slyke case, supra, as the basis for the majority rule, are substantially the same as those stated in the Kerndt case. True, the cited cases in general refer to revivors prior to the statutory bar. But the principle that a junior lienholder, with actual or constructive notice of a valid and enforceable prior lien, takes his lien subject to the extension or revival of such prior lien, should be equally applicable whether the revivor is before or after the expiration of the statute of limitations."
Respecting the first sentence in the quotation, I have to say that I have set out the exact reasons the court gave in each case and they have no similarity to those stated in the Kerndt case. As to the second sentence, it is true that the cases cited in general refer to revivors prior to the statutory bar. In such cases there is, of course, no removal of the lien of the prior mortgage. The decisions in such cases have no applicability to cases like the one at bar. In fact, the principle for which the majority opinion contends, by a reasonable construction of its language, is applicable only when the extension of the time of payment, or the tolling of the statute, takes place before the expiration of the statutory bar. No complaint could fairly be made of such a principle. It is the exact construction which was placed upon it in the Smith and Van Slyke cases. Furthermore, if he is to be charged with disadvantages of having the statute tolled, why should he not be entitled to advantages accruing when the bar of the statute becomes complete? Decisions like the Smith and Van Slyke cases, supra, are like our decisions in Gilman v. Heitman, 137 Iowa 336, 113 N.W. 932, and First National Bank v. Woodman, 93 Iowa 668, 62 N.W. 28, 30, 57 Am. St. Rep. 287. In all of them the revivor was before the bar. But none of them is authority for the decision *Page 1129
in the Kerndt case. There is no other decision in Iowa like it. What was said about it in Gilman v. Heitman and Bank v. Woodman was not necessary to the decisions. That it is contrary to principle and to precedent, in the opinion of the annotator, fairly appears, in my judgment, from his comment on the case in 101 A.L.R. 346. See an instructive annotation commencing on page 337 in said volume respecting tolling of the statute of limitations as affecting conveyances subsequent to the mortgage. The majority opinion cites and quotes from some Texas decisions which are not of any material support to the opinion, as I read them.
I can see no good reason for the distinction which that opinion makes between the Mitchell and the Eichhoff judgments. The opinion states of the Mitchell judgment:
"In the case at bar the rights of the junior lienholder never vested. The right to enforce the mortgage was simply suspended
subject to revivor. When the Mitchell lien attached, Mitchell wasbound to know and consider that, under the law then in effect,the mortgage might thereafter be revived, and that this revivormight be before or after the statutory period. First National Bank v. Woodman, supra. In other words, Mitchell took his lien subject to the right to revive the mortgage. The enforcement of this right of revivor will take away from Mitchell no vested rights and he has no ground for complaint." (Italics supplied.)
I submit that if the above statements are true as to the Mitchell judgment, they are true as to the Eichhoff judgment, and that the statements would be just as proper if the name "Eichhoff" were substituted in each place where the name "Mitchell" appears. Continuing, the opinion states:
"The status of the Eichhoff judgment differs from that of the Mitchell judgment in that the Eichhoff judgment was secured after the remedy upon debt and mortgage was barred and before the revivor." (Italics supplied.)
What solid reason is there for saying that the right to enforce the note and mortgage "was simply suspended" as to the Mitchell judgment but was "barred" as to the Eichhoff judgment? *Page 1130
After the expiration of the statutory limit on April 16, 1937, the lien of the mortgage was either "suspended" as to both judgments or it was "barred" as to both. It is a case of either fish or fowl. It cannot be both. The lien of the mortgage, under our decisions, was extinguished as to both judgments. Continuing, the opinion also states:
"Since there was no enforceable mortgage when the Eichhoff lien attached, he was not bound to anticipate that the mortgage might thereafter be revived. To give the subsequently revived mortgagepriority over the Eichhoff judgment lien, in effect would amountto casting upon Eichhoff an additional burden not within hiscomtemplation at the time his judgment lien attached. While the line of demarcation between the status of the Mitchell and Eichhoff liens is not broad, we think it is distinct." (Italics supplied.)
The line is not broad, certainly, and neither is it distinct. And there is very little protein in any argument which seeks to sustain the distinction. Respecting Mitchell, the opinion states that he was "bound to know and consider that * * * the mortgagemight thereafter be revived, and that this revivor might bebefore or after the statutory period." This is the obiter dictum of First National Bank v. Woodman, supra. But of Eichhoff, the opinion states that, "he was not bound to anticipate that themortgage might thereafter be revived." Just why should there be a difference between what Mitchell and what Eichhoff should anticipate? Why should Mitchell be required "to know and consider" that there might be a revivor after the bar was complete, and Eichhoff need not even "anticipate" such a thing? If Mitchell was bound by such a happening, why was not Eichhoff? Eichhoff got his judgment on October 5, 1937, and Joe Burns had until April 16, 1947, to revive the mortgage. Assuredly, the fact must be that neither was required to give any consideration to any revivor after the bar of the statute and after their liens had attached, because it could not disturb liens which were in effect in the interim during which the lien of the mortgage had "ceased to exist."
Now, take note of this statement:
"To give the subsequently revived mortgage priority over *Page 1131 the Eichhoff judgment lien, in effect would amount to castingupon Eichhoff an additional burden not within his contemplationat the time his judgment lien attached."
I am reminded of those old saws about "blowing hot and cold," and "what is sauce for the goose is sauce for the gander." Turning to the majority opinion, we find a statement of the two conflicting principles, to wit:
"`The first principle may be stated thus: "A junior lienholder, when he acquires his lien, is entitled to assume the rights outstanding against him at the time will not be increased or enlarged without his consent, and a subsequent waiver of the statute of limitations as to the senior lien constitutes such enlargement." * * * The other principle is: "If a junior lienholder had notice, actual or constructive, of a valid and enforceable prior lien, at the time he acquired his rights, he took the latter subject to a possible extension of the time of payment, and cannot complain thereof, as it is only an incident of the lien."'"
The majority opinion insists that the second principle is the correct one. It uses the second principle to give precedence to the restored mortgage lien over the Mitchell judgment, and, as shown by the last-above italicized quotation, it uses the first
principle, which it insists is the incorrect one, to give precedence to the Eichhoff judgment over the restored mortgage lien. Verily, the "triangular question" is not only "extremely interesting and peculiar," but its ways are as devious as Bret Harte's "heathen Chinee." The fact is that the "first principle" is applicable to both judgments, since the revivor enlarges the rights against both judgment lienholders.
It is my opinion that the priority of the judgments should be determined by priority of attachment, which is the general rule. This gives priority to the Mitchell judgment. Both of them are prior and senior to the mortgage, since both were existing liens against the land after the bar of the statute against the mortgage and prior to its revivor. I would overrule the principle of law announced in Kerndt Bros. v. Porterfield, supra, 56 Iowa 412,9 N.W. 322, and affirm the decree of the *Page 1132
able trial court, by giving priority to the Mitchell judgment, and subject and junior thereto, in order, the Eichhoff judgment and the Burns mortgage.
I am a believer in the rule of stare decisis but I do not bow down in idolatry at its shrine, particularly when I believe the decision to be unsound and when it is vulnerable to a construction that will probably effect repeated injustices in the future. Principles of law affecting title to real estate, or the priority of liens thereon, should be plain and definite. The status and priority of these various liens or encumbrances should be clearly evident at any particular time. The owner-debtor should not be permitted to keep junior lienholders, and the public generally, in ignorance and doubt as to the status and value of these liens for many years after the statute of limitations has run against a lien prior in point of time, by holding in reserve the threat of a revivor. Such a rule lends itself most readily to a fraud upon creditors. A debtor might give a spurious mortgage to a confidant and carry it along on the records as an apparently valid lien for a period up to twenty years from its date, ready with a revivor to defeat any judgment or mortgage liens which attached prior to the expiration of the statute of limitations.
Both law and equity serve the vigilant and not those who sleep upon their rights. Neither do they favor the enforcement of stale claims.
The "controlling equities" rule mentioned in the opinion in the Kerndt case as an escape from the evils which I mention does not effectually prevent these evils. It does not remove the uncertainty and doubt respecting the priority of liens. A controlling equity may mean many things and no one may be certain until a court passes upon the matter.
I respectfully dissent from the majority opinion of Justice Oliver, and concur in the result of Chief Justice Mulroney's dissenting opinion. I would affirm.
MANTZ, J., joins in this dissent. *Page 1133 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430473/ | This is an action begun in the municipal court of Des Moines by the issuance of a search warrant on petition of plaintiff. The warrant was issued and the car taken thereunder. The tools described in petition were returned to the plaintiff, Bliss. For convenience W.A. Bliss will be termed plaintiff and Federal Discount Corporation the defendant. On trial both plaintiff and defendant claimed possession of the property, the former by purchase from the owner who had purchased the car from the Cedar Valley Finance Company of Osage, Iowa, which was assignee of vendor under a conditional sales contract with the vendee Mathews, and the latter by a later chattel mortgage from Mathews to defendant. Trial was had in the municipal court of Des Moines, which found for plaintiff and ordered the car returned to the plaintiff. From this judgment the defendant appealed to the district court, where, upon trial, the judgment of the municipal court was reversed, and the court found for defendant. From this ruling and judgment plaintiff appeals.
The case was tried upon a stipulation of facts, with some oral testimony. Such stipulation is as follows:
"1. That on the 13th day of January, 1939, one George *Page 1220
Mallow, a resident of Osage, Mitchell County, Iowa, engaged in the business of dealing in automobiles, sold the automobile involved in this proceeding to one Neil Mathews, otherwise known as N.G. Mathews, and that N.G. Mathews and Neil Mathews are one and the same person, for the sum of $106.00. In said sale Neil Mathews or N.G. Mathews paid to George Mallow the sum of $36.00, and executed a Conditional Bill of Sale for the balance of $70.00 due, in eight installments of $8.75 each, beginning February 13, 1939. That said Conditional Bill of Sale was filed of record in the office of the County Recorder of Mitchell County, Iowa, on the 19th day of January, 1939, at 9:30 o'clock A.M., and a certified copy of said Conditional Bill of Sale is hereby admitted in evidence without objection.
"2. That after execution and delivery of said Conditional Sales Contract the said N.G. Mathews or Neil Mathews came to Des Moines and that on the 13th day of February, 1939, the said N.G. Mathews or Neil Mathews borrowed from the Claimant, Federal Discount Corporation, the sum of $25.00 and at the same time executed a chattel mortgage to the said Federal Discount Corporation, which is hereby in evidence without objection. That said chattel mortgage covers the same identical automobile as the conditional bill of sale and upon the car involved in this controversy. That said chattel mortgage was filed of record with the County Recorder, Polk County, Iowa, on the 16th day of February, 1939, at 8:16 A.M.
"3. That on the 14th day of February, 1939, at 1:05 A.M. the same automobile involved in this controversy and covered by the said conditional bill of sale and the said mortgage was found by the police officers of the city of Des Moines, Polk County, Iowa, at or near East Second and Des Moines Streets, in the city of Des Moines, apparently abandoned with its motor running, and that on said date the said automobile was taken to the police station and a charge filed against N.G. Mathews or Neil Mathews, in whose name the said car was licensed, charging him with leaving his automobile in the street with the motor running. That said automobile remained in the custody of the *Page 1221
police at the police station in Des Moines until April 10, 1939, when a letter was written to George Mallow at Osage, Iowa, notifying him that said car was held by the police at Des Moines. That thereupon the said George Mallow came to Des Moines, displayed to the police officers in the city of Des Moines his conditional bill of sale, and declared to them that the car was forfeited under the conditional bill of sale, and the car forfeited and repossessed under his conditional bill of sale, and that the police officers of Des Moines thereupon released the car and turned it over to said George Mallow.
"4. On the 15th day of April, 1939, the Cedar Valley Finance Company, by William H. Burns, Jr., Secretary-Treasurer, filed with the County Recorder of Mitchell County, Iowa, its Affidavit of Repossession, — a certified copy of the same is by this stipulation offered and introduced in evidence without objection.
"5. That on or about the ____ day of April, 1939, the said Cedar Valley Finance Company sold the said automobile to one Robert Burns of Des Moines, Iowa, and that thereafter said Robert Burns performed services and had repairs made upon said automobile, and within a few days sold and transferred the said automobile to W.A. Bliss, the present claimant herein, but that no Bill of Sale thereof was ever filed or recorded in the office of the Recorder of Polk County, Iowa.
"6. That possession of said automobile was given to W.A. Bliss on the 26th day of April, 1939, and that the same was in his possession and use from and after said date until taken as hereinafter set forth.
"7. That on the evening of the 16th day of June, 1939, said W.A. Bliss parked his automobile in the driveway to his garage, which garage is underneath the house, all of said automobile being upon the lot of the said W.A. Bliss, and that at about 9 o'clock P.M. the same was taken and driven away by one John Hanson, under the direction of the claimant, Federal Discount Corporation, and remained in the possession of the said Federal Discount Corporation until taken under this *Page 1222
search warrant on or about the 6th day of July, 1939, and has been in the possession and custody of the bailiff of the Municipal Court of Des Moines since that date."
In addition to the facts stipulated, other testimony was introduced to the effect that there was no prior actual knowledge on defendant's part of the existence of plaintiff's conditional sales contract. There is no evidence contradicting the statement of residence in the two instruments. Neither the plaintiff nor the vendor, nor vendor's assignee under the contract, had any actual knowledge of the chattel mortgage until June 17th, after the vendor's assignee had filed its affidavit of repossession on April 15, 1939.
[1] Question is made and considerable space devoted in argument as to the form of the proceedings. The controversy began with the issuance of a search warrant by the judge of the municipal court, under which the car was taken on July 5, 1939. On July 10th following, defendant appeared and filed a claim alleging its right to possession, but no claim was made that the search warrant was illegally issued nor was any attack made upon it. The plaintiff in his application for the warrant also had alleged that the car was his property. Upon these claims the case was tried in the municipal court, and, on defendant's appeal from the order and judgment of that court, was tried upon the same issues in the district court. The finding of the municipal court and the notice of appeal therefrom by the defendant in no way assailed the issuance of the search warrant. Both parties throughout treated the hearings and trial as a test of ownership or right of possession. Some suggestion is made in argument that the validity of the warrant was attacked in the district court, but under the record here we conclude and must hold that the issues presented at all times were only as to the rights of the respective parties to the possession or ownership of the car, and would therefore render the consideration or discussion of the question of the proper issuance of the warrant immaterial and of no value. We take the case on the issues made and presented by the parties, and *Page 1223
hence we consider only the question of the rights of the parties under the conditional sales contract and chattel mortgage. As bearing on this question, see Montgomery v. Alden, 133 Iowa 675, 108 N.W. 234, 119 Am. St. Rep. 648, and Haworth v. Newell,102 Iowa 541, 71 N.W. 404.
[2] II. The district court held that on the merits defendant was entitled to the possession of the car. We are not inclined to agree with this conclusion. The Cedar Valley Finance Company was the holder by assignment of the conditional sales contract, which was dated January 13, 1939, duly executed and recorded. The title at no time was in Mathews, the vendee, and under the terms of the contract could not pass to the purchaser until payment of the balance of the purchase price in cash. Provision was made therein for possession and sale by vendor at any time, without notice, in the event of default or noncompliance with the terms of the contract. There were provisions against transfer, or liens or incumbrances. Of these provisions, and of the contract, defendant had record notice. Defendant's chattel mortgage was not executed until February 13, 1939, in another county, and there filed. The finance company had done all it could do under the statute to protect its right by recording as provided in section 10016, Code of 1935. It seems that there could be no question of priority as to the first instrument.
The rights acquired by defendant could be no greater than those of the mortgagor, Mathews. It has been our uniform holding that the priority is in the first holder whose instrument is duly recorded. See Northern Fin. Corp. v. Meinhardt, 209 Iowa 895, 226 N.W. 168, with cases cited, wherein we held that even a foreign conditional sales contract was superior to and held priority over a lien claimant for storage, and after sale for charges to an innocent purchaser. In that case we said, 209 Iowa 895, 901, 226 N.W. 168, 170:
"As we have seen, such right of the conditional sales vendor would be superior to those of a mortgagee in this state, under the rule recognized in First Nat. Bank v. Ripley, supra *Page 1224
[204 Iowa 590, 215 N.W. 647]. It would apparently logically follow that they would be superior to those of a purchaser from the vendee, or an attaching creditor of the vendee in this state."
The rule as to a foreign vendor certainly applies with equal force at least to a vendor within the state.
Under the terms of the contract no title passed to Mathews. This was not a case of two chattel mortgages, as in the case of Money v. Somers Sav. Bk., 202 Iowa 106, 209 N.W. 275. The vendor's assignee in this case had title, a right to sell the car and apply the proceeds on its debt; was not required to account for any surplus, since there was in fact no surplus from the sale which realized much less than the amount due. The recent case of Hansen v. Kuhn, 226 Iowa 794, 285 N.W. 249, was decided on the question of the definition of ownership as applied in the law relating to liability in an automobile case under Code section 4863 [Code, 1935]. We do not think that the holding in that case or the discussion of the case by Justice Bliss is contrary to our finding in this case; and, under the terms of the contract herein involved, the rights of the holder of the contract were superior and prior to those of the subsequent mortgagee. Whether or not plaintiff was bound as to notice by the recording of the chattel mortgage we do not need to consider, as, after the retaking of the car by the prior lienholder, the rights, if any, of the mortgagee were of no actual value. And such holder of the contract, having repossessed the car, became the owner, with full rights of possession. Under the facts of this case, we must hold that the plaintiff was the rightful owner, and entitled to possession of the car.
Our holding renders unnecessary to consider a motion to strike defendant's reply brief and argument.
The judgment and order of the district court should be, and it is, reversed. — Reversed.
RICHARDS, C.J., and STIGER, SAGER, HAMILTON, BLISS, OLIVER, and MILLER, JJ., concur. *Page 1225 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4138093/ | ENERAL
Hen, K:. L. Berry Oplnlon Ho,,.;V-679.
Adjutant General
Capitol Station Re: The legallty.of the pay-
Austin, Texas ment of a personal injury
claim of a I'iatlonal
Guards;
man from funds appropriated
to the Adjutant General's
Department.
bear Sir:
Your request for opinion and correspondence at-
tached thereto show that Wllllem C. Lynch, a member of
the Texas Hatlonal Guard, was Injured while playing soft-
ball with a national Guard softball team during a Hemorlal
Day celebration on May 30, 1948. Iilkmedical and hospital
bills amount to the sum of $348.50.
Your questions are as follows:
"(1) Is payment of claim set forth In
basic letter a legal expenditure from funds
appropriated to the Ad utrnt General's.De-
partment under item 11i of the Adjutant Gen-
eral's appropriation for Fiscal Year 1948?
"(2) In the event the answer to ques-
tion No. 1 Is in the affirm@tlve, can other
outstanding claims of similar nature, which,
if presented and approved, will exceed the
balance left in .th8 amqunt of the present ap-
proprlatlen, be legaily paid, and If so how
can payment be made?
We are of the opinion tMt the above claim con-
not be Id from funds appropriated 'to your .department.
Item 11r of th8 current appropriation fer the Adjutant
General's Department provides:
"General maintenance, traveling expenses,
bond premiums, laundering and reconditioning
of property, lnc,ludlngtransportation there-
of, medical and hospital services for troops
, ,,
“Eiierymember of the military forces of
this State who shall be wounded or disabled
while ltithe service ef this State, in casea
of riot, tumult, breach of the peace, resist-
ance tm precessP lnvagion; insurrectien, er
ilhmlnentdanger thereef, er’Whenever called
upon In aid of the clvll autheritles, shall
be taken care ef end provided for at the ex- 1
pense of this State,‘~
A study of the Obey ~statutb?$ads to the ten-
elusion that before the State Is 1iabIe’fsr any Injury
iticupIT8dby a National &tiards@an,,
,sukhInjQry must be
Incurred under one et~the tilrauv?stancbaabove set out.
In other words) the rule ef ~exnressle~uhlua (the expres-
sion of on8 thing 1s the excIusl.on,of another) applies.
-Since the 1njur.ysustained in the’instant case was net
sustained under.anj ef the olrowP&tances enumerated In-..
Article 5845, we cannet see whew the claim can be legal-
ly paMby the State.
Article 5845, tegethrr’&th the appropriation
bill, requires that~an lnjtit er weund,must net only be
Incurred in line Qf duty, bu must be incurred in one of
several enumerated circumstances‘p The situation under
censlderation does not come within any ef these enumer-
ated clrcumstanc~es
O .
Since we have answered Jrourfirst question In
the negative, it 1~sunnecessary te answer your secend .
question.
SUMMARY
The&e being no statutery autherlty, the
State of Texas may ‘net pay for the medical
and hespltal‘servlces of a Bat,l6halGuardsman
Injured while participating In an athletic con-
test as a member ef the,Guard Team, such Guards-
man not being In the actlve’servlce ef,the State
at the time In response te rict, tumult, breach
Hon. K. L. Berry, Page 3, V-679.
of peace, resistance, invasion, lnsurrec-
tlon or aid to clvll authorities (Art. 5845,
v. c. 9.).
Yours very truly
ATTORFIEYGENERAL OF TEXAS
By &&-% a'&
Clinton Foshee,
Assistant.
AlPROVED: '
zkfLYA=
ACTING ATTORHEY GEIVEERAL,
CF:jac | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3210897/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN THE INTEREST OF: L. M., A MINOR : No. 68 MM 2016
:
:
PETITION OF: T.L., MOTHER :
ORDER
PER CURIAM
AND NOW, this 8th day of June, 2016, the Application for an Exercise of Either
King’s Bench Power or Extraordinary Jurisdiction is DENIED. | 01-03-2023 | 06-08-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211887/ | Court of Appeals
of the State of Georgia
ATLANTA, June 03, 2016
The Court of Appeals hereby passes the following order
A16D0375. BRIDGET BROWN v. CLARENCE WHITE et al. .
Upon consideration of the Application for Discretionary 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 State Court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
LC NUMBERS:
16SV0033
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, June 03, 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/4033644/ | United States Court of Appeals
For the First Circuit
No. 15-1898
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND NEGRÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Bruce E. Kenna, on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and Emily
Gray Rice, United States Attorney, on brief for appellee.
September 14, 2016
TORRUELLA, Circuit Judge. Defendant-Appellant Raymond
Negrón appeals the United States District Court for the District
of New Hampshire's decision to deny a retroactive reduction to his
sentence pursuant to 18 U.S.C. § 3582(c)(2). Negrón had
previously entered into plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), which "bind[s] the district court
to a pre-agreed sentence if the court accepts the plea." United
States v. Rivera-Martínez, 665 F.3d 344, 345 (1st Cir. 2011).
Under so-called C-type plea agreements, a defendant is eligible
for a sentence reduction based on a retroactive amendment to the
United States Sentencing Guidelines ("Guidelines") only if the
term of imprisonment specified in the agreement is "based on" a
Guidelines sentencing range. We agree with the district court
that the proposed sentenced in Negrón's plea agreement failed to
meet this requirement and affirm.
I.
On August 22, 2012, a federal grand jury returned a nine-
count indictment against Negrón. 1 Negrón and the Government
1 Counts one through five charged Negrón with controlled substance
offenses in violation of 21 U.S.C. § 841(a)(1). Count six charged
Negrón with sale of a firearm to a prohibited person in violation
of 18 U.S.C. § 922(d). Counts seven through nine related to
Negrón's possession of a Mossberg twenty gauge bolt action shotgun.
Negrón was charged with possession of an unregistered firearm, 26
U.S.C. §§ 5861(d), 5841, 5871; possession of a firearm with an
obliterated serial number, 18 U.S.C. § 922(k); and possession of
a short-barreled shotgun during and in relation to a drug
-2-
subsequently reached a plea agreement in which Negrón pled guilty
to counts one through eight. The Government dismissed count nine,
which carried a mandatory minimum consecutive sentence of 120
months' imprisonment. See 18 U.S.C. § 924(c)(1)(B)(i). Negrón's
plea agreement was made pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C). Under so-called C-type plea agreements,
"the parties bind the district court to a pre-agreed sentence if
the court accepts the plea." Rivera-Martínez, 665 F.3d at 345.
Although the plea agreement did not state a base level offense,
applicable Guidelines range, or criminal history category ("CHC"),
the parties stipulated that Negrón would be sentenced to 144
months' imprisonment.
The district court conducted a sentencing hearing on
June 13, 2013, and determined that Negrón had a total base offense
level of 25 and CHC of I, corresponding to a Guidelines range
sentence of 57 to 71 months' imprisonment. Noting that the
stipulated sentence was "slightly over twice the high end of the
advisory guideline," the district court accepted the plea
agreement and imposed the stipulated sentence.
In 2014, the United States Sentencing Commission
retroactively reduced the base offense level for many drug offenses
trafficking crime, 18 U.S.C. § 924(c)(1)(B)(i).
-3-
by two levels. See U.S.S.G. § 1B1.10(a)(1); U.S.S.G. supplement
to app. C amend. 782 (Nov. 1, 2014); United States v. Vaughn, 806
F.3d 640, 643 (1st Cir. 2015). Because several of his convictions
were for controlled substance offenses, Negrón subsequently filed
a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2).
The district court denied Negrón's motion, concluding that
Negrón's sentence was not based on a Guidelines sentencing range
affected by an amendment. This timely appeal followed.
II.
A district court performs a "two-step inquiry" in
determining whether a defendant is entitled to a sentence reduction
under § 3582(c)(2). Dillon v. United States, 560 U.S. 817, 826
(2010). First, the district court must determine whether any
applicable Guidelines amendments apply to the defendant's
sentence. Id. at 826-27. Second, if the district court concludes
the defendant is eligible for relief, it must weigh the sentencing
factors described in 18 U.S.C. § 3553(a) and determine whether a
reduction is warranted. Id. Here, the sole issue on appeal is
whether the district court properly applied our decision in Rivera-
Martínez, 665 F.3d at 344, to conclude that Negrón was ineligible
for relief.2 Although "[w]e review a district court's denial of
2 The district court stated that, if Negrón were legally eligible,
it would have reduced his sentence to 116 months' imprisonment.
-4-
a motion for reduction of sentence under section 3582(c)(2) for
abuse of discretion," United States v. Caraballo, 552 F.3d 6, 8
(1st Cir. 2008), because Negrón contends the district court
committed legal error, our review is effectively de novo, id. ("A
material error of law is perforce an abuse of discretion.").
Courts may reduce the term of imprisonment for "a
defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the
Sentencing Commission." 18 U.S.C. § 3582(c)(2). The term of
imprisonment in a C-type plea agreement is "based on" a Guidelines
sentencing range in two scenarios: (1) when the agreement "calls
for a sentence within an identified sentencing range," Rivera-
Martínez, 665 F.3d at 348, and (2) when "the terms contained within
the four corners of the plea agreement," id. at 349, "make clear
that the basis for a specified term of imprisonment is a Guidelines
sentencing range applicable to the offense to which the defendant
pleaded guilty," id. at 348 (alterations omitted) (quoting Freeman
v. United States, 564 U.S. 522, 539 (2011) (Sotomayor, J.,
concurring)).3
3 We acknowledge that since we decided Rivera-Martínez, two other
circuits have concluded that Justice Sotomayor's concurrence is
not the narrowest opinion in Freeman v. United States and thus
nonbinding. See United States v. Davis, __ F.3d __, 2016 WL
324504316 (9th Cir. June 13, 2016) (en banc); United States v.
Epps, 707 F.3d 337 (D.C. Cir. 2013). Nonetheless, we view Rivera-
-5-
Negrón acknowledges his term of imprisonment is not
within a specific Guidelines sentencing range, but argues that his
plea agreement fell into this second category. As in Rivera-
Martínez, however, Negrón's plea agreement lacks the "two
essential coordinates" that show a Guidelines sentencing range
underpins the proposed sentence. Id. at 349. In that case, we
found that a C-type plea agreement that failed to specify a CHC
(despite specifying a base offense level) could not be considered
to be based on a Guidelines sentencing range. Id. Negrón's case
is even weaker because his plea agreement contains neither a base
offense level nor a CHC. Absent either of these two essential
coordinates, we cannot conclude Negrón's plea agreement was based
on a Guidelines sentencing range. Id.
Nonetheless, Negrón contends that we can infer both
numbers from the four corners of his plea agreement. With respect
to the base offense level, Negrón argues his plea agreement
contains all of the facts necessary to calculate this integer.
With respect to his CHC, Negrón claims this number was never
seriously contested, due to his relatively sparse criminal record,
and is obvious from his presentence report. Finally, Negrón cites
the fact that at his sentencing hearing the district court
Martínez as controlling Negrón's appeal.
-6-
acknowledged that 144 months' imprisonment was equal to doubling
the high end of the applicable Guidelines range and "rounding [up
to] an even twelve-year sentence." Negrón views this statement
as evidence that his plea agreement was based on a Guidelines
sentencing range.
Negrón's arguments run contrary to our holding in
Rivera-Martínez. Under the Guidelines, a district court may
accept a C-type plea agreement only if the agreement stipulates a
sentence that is within the applicable Guidelines range or the
district court is satisfied that the sentence departs from the
Guidelines range "for justifiable reasons." U.S.S.G. § 6B1.2(c).
In other words, even with C-type plea agreements, the district
court must calculate the defendant's base offense level and CHC to
determine whether the sentence negotiated by the parties is
acceptable. Because we have rejected the view that all C-type
plea agreements may qualify for relief under § 3582(c)(2), we have
held that the fact that the district court "perform[ed] [Guidelines
calculations] before deciding whether to accept the agreement" is
insufficient to show that the stipulated sentence is based on a
Guidelines sentencing range. Rivera-Martínez, 665 F.3d at 349.
The inclusion of admitted facts in Negrón's plea
agreement does not necessarily demonstrate that that parties
intended to base his sentence on a particular base offense level.
-7-
Rather, these facts merely helped the district court perform the
Guidelines analysis necessary to its review of the agreement.
Moreover, a sentencing court need not rely exclusively on the facts
listed in a plea agreement when performing its Guidelines
calculation to determine whether to accept the plea. The district
court and Negrón both relied on his presentence report -- a
document outside of the four corners of the plea agreement -- to
calculate his CHC. We therefore reject Negrón's contention that
we can infer that he and the Government had a specific base offense
level in mind from the stipulated facts in his plea agreement.
We also decline Negrón's invitation to find that his
plea agreement implicitly referenced his CHC. Although the
"obviousness" of this integer may be an explanation for its absence
from the plea agreement, it is not the only one. The absence of
the CHC is equally consistent with the parties simply viewing other
factors besides Negrón's Guidelines range as important to
determining his sentence.
For similar reasons, we are equally unpersuaded by
Negrón's argument that his plea agreement must have been based on
a Guidelines sentencing range because his stipulated sentence is
roughly double the high end of the Guidelines sentencing range.
We have recognized that the "term of imprisonment in a C-type plea
agreement will most often be negotiated by reference to the
-8-
relevant guideline provisions" and interpreted § 3582(c)(2) as
requiring a stronger "linkage." Id. (citing Freeman, 564 U.S. at
537). Negrón's observation falls short. Although the district
court acknowledged some relationship between the stipulated
sentence and the applicable Guidelines range, the district court
also factored into its analysis the fact that the Government had
agreed to dismiss count nine of Negrón's indictment, which carried
a mandatory minimum consecutive sentence of 120 months'
imprisonment. In other words, non-Guidelines factors also
explained Negrón's proposed sentence. Understanding the role the
Guidelines played vis-á-vis the dropped charge would require us to
"to supplement the [a]greement with . . . the parties' background
negotiations," something Rivera-Martínez forbids. Id. We
therefore decline to accept Negrón's invitation to infer a
Guidelines basis for his stipulated sentence.
Finally, Negrón claims his stipulated sentence was based
on a Guidelines sentencing range because his plea agreement
contains various references to the Guidelines including that
(1) the district court was required to consider the Guidelines in
an advisory capacity; (2) Negrón was aware that the Guidelines
were nonbinding; (3) the United States and the United States
Probation Office would advise the court of any inaccuracies in the
presentence report; and (4) the Government would not "oppose an
-9-
appropriate reduction in [Negrón's] adjusted offense level, under
the advisory Sentencing Guidelines, based upon [Negrón's] prompt
recognition and affirmative acceptance of personal responsibility
for the offense." These generic plea agreement statements are
insufficient to show that Negrón's term of imprisonment was based
on a Guidelines sentencing range because it is not "evident from
the agreement itself" that the "basis for the specified term [of
imprisonment] is a Guidelines sentencing range." Freeman, 564
U.S. at 539 (Sotomayor, J., concurring). They simply show that
the Guidelines would play some amorphous role in the parties'
negotiations and the district court's analysis of the plea. This
falls short of the linkage Rivera-Martínez requires.
III.
Because we cannot conclude that Negrón's sentence was
based on a Guidelines sentencing range, we agree with the district
court that he is not eligible for a sentencing reduction pursuant
to § 3582(c)(2).
Affirmed.
-10- | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3216709/ | Case: 15-50516 Document: 00513563051 Page: 1 Date Filed: 06/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50516
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 23, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE LUIS BELLOC,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CR-143-1
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Jose Luis Belloc has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Belloc has filed a response. We have reviewed counsel’s brief and the relevant
portions of the record reflected therein, as well as Belloc’s response. We concur
with counsel’s assessment that the appeal presents no nonfrivolous issue for
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-50516 Document: 00513563051 Page: 2 Date Filed: 06/23/2016
No. 15-50516
appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2 | 01-03-2023 | 06-24-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4039157/ | ^^i«so U°U(t 0| Appeals RECEIVEDIN
SIOOA;, Com4 COURT OF CRIMINAL APPEALS
... , ' JAN 05 2015
d qyp4- ^AbstAcosS, Ojteft
:r >^ ro 3:-b_
o r ij) —i—^rr
-for Oisci-eftortarv /W/£lO S %, ^ ^5
0CM ^ C^u^V o£ %esi or Do-e +U (WV of Af("*^ lvw-e
Vl<o(aJ-e-5 Rul^- 40^? -fiVie Li^if ~ Evidence, o£ Q^on^cJ-iS^ vnd-er hh^
ruW- [•> Ktof (K.k+%i&$lb(^ i-P <x_ oe_ftoc/ o4 more 'fkajo hen ytA.rs koS
£J C<xo ^^QjEHH-eft </7SQ As3<uj/f ts bd/uj eAKtxnae "^^ /V^u4i<l^H^i
fctePcrc^f in^KAah i^^k A^yi^vccdhso Oefor-eW Ts /wf (X.. prior con/id-J-u?*
^-a. tO^lf-of ttca>tft.4 Corpus 5^&/a^ re/^p &> Apfed:./ N^hi^k^
UNSWORN DECLARATION BY INMATE
Being presently incarcerated intheBexar County Adult
Detention Center, San Antonio, Texas declare under Penalty of
Perjury that the foregoing .instrument is true and correct
Signed onthis the ^ day ofJko_ *3s£L
Defendant | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031281/ | THE THIRTEENTH COURT OF APPEALS
13-16-00359-CV
Allyson R. Oliver and William C. Oliver
v.
Wells Fargo Bank, N.A.
On appeal from the
County Court at Law No. 5 of Nueces County, Texas
Trial Cause No. 2014-CCV-60666-5
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/4061986/ | ACCEPTED
12-15-00157-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/16/2015 11:43:07 PM
Pam Estes
CLERK
Cause No. 12-15-000157-CR
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
In the Court of Appeals for the
11/16/2015 11:43:07 PM
Twelfth Judicial District at Tyler, Texas PAM ESTES
Clerk
Stanford Jones, Jr.,
Appellant
v.
State of Texas,
Appellee
On Appeal from Cause No. 2013-0744 in the 217th
Judicial District Court of Angelina County, Texas
State’s First Motion for Extension (Unopposed)
To the Honorable Justices of this Court:
Appellee, State of Texas, moves for a 30-day extension of time to file its
brief.
I.
Undre the Texas Rules of Appellate Procedure, the general deadline to file
an appellee’s brief is 30 days after the date the appellant’s brief was filed. Tex. R.
1
App. P.38.6(b). Appellant’s Brief was filed on October 15, 2015, giving the State
until Monday November 16, 2015 to file its brief.
The State of Texas now requests a 30-day extension of time in which to file
its brief.
II.
Good cause exists for allowing the State additional time to file its brief for
the following reasons:
1. Counsel for the State has had a medical emergency and has been out
of the office since November 2, 2015.
2. Counsel for the Appellant is unopposed to this extension.
III.
From the above-listed reasons, the State has demonstrated that good cause
for the failure to be able to submit its brief by the Court’s deadline. This is the
State’s first motion for extension, and it is not brought for purposes of delay or
harrassment, but to see that justice is done.
Wherefore, Appellee State of Texas prays that the Court grant its requested
30-day extension to file its State’s Brief in this matter.
2
Respectfully Submitted,
/s/ April Ayers-Perez
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
ATTORNEY FOR THE
STATE OF TEXAS
Certificate of Service
I certify that on November 16, 2015, a true and correct copy of the above
document has been forwarded to John Reeves, by electronic service through
efile.txcourts.gov.
/s/ April Ayers-Perez
Certificate of Conference
I certify that on November 15, 2015, I conferred with John Reeves about this
motion, and certify that he was unopposed to a 30-day extension.
/s/ April Ayers-Perez
3 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430470/ | The only question involved in this appeal is that of priority between appellant's conditional sale contract and appellee's chattel mortgage.
On December 20, 1937, appellee Wessell purchased an automobile from the Hughes Motor Company for the sum of $430, of *Page 812
which $100 was paid forthwith, and the balance of $330 was payable in monthly installments of varying amounts commencing February 1, 1938, in accordance with a conditional sale contract, which was executed at the time by Wessell and the Hughes Motor Company. This conditional sale contract was assigned to the appellant Hughes, doing business as Hughes Finance Co.
From the information given by appellee Wessell at the time of the purchase, appellant concluded that Wessell resided in Harrison county, and the conditional sale contract was recorded there. The evidence indicates, however, and the trial court found, that at that time Wessell was residing on a farm in Monona county. During January 1938, Wessell became involved in a criminal proceeding and engaged appellee Cooper, an attorney, to represent him in such proceeding. On February 1, 1938, Wessell gave Cooper a chattel mortgage on the automobile to secure a note for $100. The note and mortgage were executed in payment for services theretofore rendered by Cooper in Wessell's behalf.
Wessell defaulted on the February payment to appellant and this action was commenced in equity to foreclose appellant's lien, and to recover judgment for the $330 unpaid on the automobile. Appellee Cooper intervened, asserted his chattel mortgage for $100, and asked that the same be foreclosed and the lien thereof established as prior to that of appellant's lien.
The trial court awarded judgment against appellee Wessell in favor of appellee Cooper in the sum of $90 together with an attorney fee of $9 and costs, and established the lien of Cooper's chattel mortgage as prior and superior to that of appellant's conditional sale contract. The court also gave judgment in favor of appellant against Wessell in the sum of $330 with interest at 7 per cent and costs, including an attorney fee of $26.50, and established the lien of appellant's conditional sale contract as valid, but junior and inferior to that of Cooper's chattel mortgage. From this decree appellant has brought the case to this court.
[1] Appellee Cooper has filed a motion to dismiss the appeal, asserting that the amount in controversy does not exceed the sum of $100 and, since no certificate was entered of record by the trial court during the term at which judgment and decree was rendered, appellant has failed to comply with the provisions of section 12833 of the Code. We see no merit in the motion *Page 813
to dismiss. Of course, appellee's judgment was less than $100 and, if we were to view the matter solely from the standpoint of relief granted appellee Cooper, there might be some basis for contending that less than $100 is involved. However, appellant's judgment was for $330 with interest and costs. Appellant here asks that his judgment for such amount be established as a prior lien ahead of that of appellee's chattel mortgage. Such being the case, it is obvious that the controversy involves more than $100. Schultz v. Ford Bros., 133 Iowa 402, 109 N.W. 614, 12 Ann. Cas. 428; Davis v. Laughlin, 147 Iowa 478, 124 N.W. 876. The motion to dismiss is overruled.
[2] The appeal challenges that portion of the decree which found and adjudged that appellee Cooper "was an innocent purchaser and mortgagee of said car for value and without notice of the prior lien of the plaintiff". We hold that such finding and adjudication was erroneous.
A question, directly analogous to that presented here, was determined by this court in the case of Ohio Savings Bank v. Schneider, 202 Iowa 938, 211 N.W. 248. In that case, the appellant commenced an action of detinue for the possession of an automobile, upon which the appellant had a contract in the nature of a conditional sale contract and upon which the appellee also had a bill of sale executed by the original purchaser to the appellee as part payment upon a pre-existing debt owed to the appellee. It was there claimed, as here, that the conditional sale contract was not properly recorded. In speaking of appellant's conditional sale contract, this court states at page 939 of 202 Iowa, at page 249, of 211 N.W., as follows:
"The contract was clearly valid and enforcible, as between the parties thereto. Being such, it was enforcible as against all others, except purchasers for value without notice."
[3] In speaking of appellee's bill of sale, this court states at page 940 of 202 Iowa, at page 249 of 211 N.W., as follows:
"The pre-existing debt owed to the defendant by Graybill did not constitute `value,' nor was it effective to make the defendant a purchaser for value."
The position, taken by this court in the above case regarding a purchaser under a bill of sale, applies as well to a mortgagee. Cambria Savings Bank v. La Nier, 135 Iowa 280, *Page 814 112 N.W. 774; Martin v. Fritz, 194 Iowa 740, 190 N.W. 514. As pointed out in the La Nier case, where a note and mortgage are executed in satisfaction of a pre-existing debt, the mortgagee does not become a purchaser for value unless he gives some new consideration, as an agreement to extend time of payment. Appellee Cooper has introduced no evidence of any new consideration. The note, which Wessell executed and for which Cooper's mortgage was security, was payable "on demand". Hence, there was no extension of time involved, which might constitute new consideration for the mortgage.
Accordingly, that part of the decree of the trial court, which established the chattel mortgage of the appellee, Cooper, as superior to the lien of appellant's conditional sale contract, is erroneous. To that extent the decree must be and it is reversed. — Reversed.
MITCHELL, C.J., and SAGER, HALE, BLISS, STIGER, and HAMILTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430471/ | In May, 1929, the appellee (plaintiff) filed his action at law against the appellant (defendant) to recover $180,000 for royalties under a contract with the appellant's assignor, J.S. Hall. The petition also seeks to recover for alleged profits claimed to be due the appellee from the manufacture of patented pulley blocks and for damages for alleged fraud on the part of the appellant in manufacturing and selling a different pulley block from that described in the appellee's contract with the appellant. *Page 1313
The appellant answered said petition, and also filed a counterclaim, alleging that the appellee's petition was not brought in good faith, but for the purpose of injuring the appellant in its business; that said suit was one of a long series of suits brought by the appellee against the appellant on the same cause of action; that the issues between the appellee and appellant have already been adjudicated by the court; that the appellant is a manufacturing corporation, doing business in various parts of the United States and Canada, largely through advertising, solicitors, and traveling salesmen, and its business depends upon the good will and confidence of the purchasers; and that, by reason of the appellee's suit and his threat to renew said suit and to continue to bring like suits against the appellant, this appellant has suffered and will suffer irreparable injury. Said cross-petition asks that the appellee be restrained from further bringing or prosecuting his action against the appellant upon said same cause of action.
The appellee dismissed his petition, and filed an answer to the counterclaim, denying each and every allegation thereof, and alleging that, by reason of the fraud and deceit practiced by the Hall Manufacturing Company, he had been prevented in his previous attempts from having a fair trial; that, by reason of the alleged fraud of the appellant, the appellee was prevented from discovering the true facts concerning the relationship of the appellee and the appellant; and that the appellant still owes the appellee royalties on his patented device.
Attached to the appellant's cross-petition are 45 exhibits, which are, in the main, petitions of the appellee against the appellant, or appellant's assignor, J.S. Hall, amendments thereto, applications for the production of books and papers, etc.
In order to adequately describe the course of this litigation, it becomes necessary to refer to these pleadings somewhat in detail.
Exhibit 1 is a petition in equity, filed in the Jones County, Iowa, district court in March, 1915, by the plaintiff against the defendant herein. This petition sets out a cause of action on a contract dated January 1, 1909, between J.S. Hall, the appellant's assignor, and the plaintiff herein, which said contract is the basis for the suit brought by the plaintiff herein in May, 1929. Exhibits 2 and 3 are amendments to this petition. Exhibit *Page 1314
4 is an application for the production of books and papers. Exhibits 5, 6, 7 and 8 are amendments.
Shortly after September, 1915, the said cause of action was dismissed by the plaintiff. On September 14, 1917, the plaintiff commenced another action for royalties, damages, and profits, based upon the same cause of action as in the former suit. After the filing of various pleadings and motions, this case was dismissed by the plaintiff. In the meantime, on November 19, 1914, plaintiff brought a suit at law against J.S. Hall, who was then president and managing owner of the Hall Manufacturing Company herein, based upon the same cause of action. Petitions for the production of books and papers were filed, and various amendments were filed; and thereafter the petition was dismissed by the plaintiff.
On November 19, 1914, plaintiff brought a suit in equity against the said J.S. Hall, based upon the same cause of action. This the plaintiff subsequently dismissed.
On February 16, 1915, plaintiff commenced an action in equity against Hall, president of the Hall Manufacturing Company, on the same cause of action. In March of the same year, an amendment was filed. In September, two amendments were filed. In October, the third amendment was filed. Various other pleadings were filed by either side, including an application for the production of books and papers, which was granted. Finally, sometime after May, 1917, the pleadings were perfected, and the cause was about to be tried, when the plaintiff again dismissed his action.
On May 26, 1922, plaintiff brought another suit against the Hall Manufacturing Company, at law. Various amendments were filed, books and papers were presented by the defendant for inspection by the plaintiff, and finally the trial court sustained a motion by the defendant company to strike a portion of the petition as amended. From this an appeal was taken, and this court sustained the lower court. See Benedict v. Hall,201 Iowa 488.
In January, 1927, Benedict filed another amendment, and finally, on March 23, 1928, the trial court, after a full and complete trial, determined the cause in favor of the plaintiff and against the defendant in the sum of $391.51. The defendant *Page 1315
had previously, in open court, offered to confess judgment for $750. This judgment was satisfied and discharged.
Then followed the petition in this case, followed by the defendant's counterclaim and the dismissal of plaintiff's petition. The plaintiff then filed an answer to defendant's counterclaim, and the cause was transferred to equity. The prayer of the counterclaim is for an injunction restraining the plaintiff "from prosecuting the cause of action now pending * * * based upon the same cause of action set out in the cause submitted to this court and decided on March 23, 1928." As previously stated, the trial court denied the injunction, and the defendant appeals.
The appellee has filed an amended abstract, but has filed no argument. It is claimed that, during this long continued litigation, all of which has its foundation in a contract dated January 1, 1909, approximately 50 lawyers have been employed, more than 40 of whom have appeared of record in the various actions. This litigation has been pending in its various forms for more than 16 years. It was started in Jones County, Iowa, and unless checked, bids fair to rival the now internationally famous Jones County Calf Case.
While the plaintiff has no petition on file at this time, at least so far as this record shows, nevertheless it clearly appears that it is the purpose and intention of the plaintiff to bring another suit or suits against the defendant upon the same old cause of action.
The defendant is a manufacturing corporation, doing a business approximating one-half million dollars a year. Its business success depends largely upon the good will of its customers and the confidence of its business associates. It is without contradiction in the record that the bringing of suits for large amounts of money, as in this case, for $180,000, very seriously impairs the credit of corporations, and that this suit has impaired the appellant's credit to such an extent that it has at various times been unable to buy as advantageously in the market, as if not harassed by this lawsuit; that the appellant has, by reason of this litigation, been unable to buy the quantity of materials it could otherwise buy; and that the fact of the pending litigation has given to the appellant's competitors an argument that has been presented to the appellant's customers, seriously interfering with the appellant's business. *Page 1316
It clearly appears that there is no adequate and complete legal remedy available to the defendant for the loss of confidence and resulting loss of trade to the defendant's business. The business of the defendant is carried on in a large territory, and it is practically impossible for the defendant to meet the arguments of competitors based upon pending litigation, and otherwise protect against the effect of the litigation. The testimony shows that customers are frightened by this litigation, because they fear the concern is in failing financial condition, and that, consequently, the defendant's guaranty will not long continue good, and, moreover, that replacements will be hard to obtain if the defendant is thrown into bankruptcy.
The record abounds in testimony in reference to the manner in which the defendant company has been harassed in its business transactions, both with its banks, with its wholesale creditors, and with its customers, both wholesale and retail. It very plainly appears that there is no way in which the defendant can be properly and adequately compensated in law for these large and wide-flung damages, and that, if the defendant is to have justice in the premises, it must come by way of equitable relief. The mere fact that the adjudication of 1928 may be pleaded to any subsequent action is not a sufficient answer. The wholesale creditors, the bankers, and all of the defendant's customers, wholesale and retail, cannot be made to understand that a suit for $180,000 damages may be completely met by a plea of former adjudication. To them, the suit for $180,000 is a real, vital threat to the financial responsibility of the defendant and to the prospects of its continuing successfully in business. On this account, the defendant has already lost large sums of money, and if the plaintiff is permitted to continue this litigation, as he threatens to do, it very clearly appears that the defendant will suffer other and additional amounts. It must be borne in mind that there is no essential difference between these various suits which have already been brought, and which have been, from time to time, dismissed by the plaintiff, and they are all essentially similar to the suit which was finally determined by the district court of Linn County, Iowa, in 1928.
We think it clearly appears from the record in this case that much of this litigation has been brought in bad faith, and that any subsequent litigation which may be brought by the *Page 1317
plaintiff against the defendant, such as he threatens to bring, based upon the same cause of action, will be brought in bad faith. There is not even an attempt on the part of the plaintiff to explain or excuse this multiplicity of suits on the same cause of action. True, he claims that he has not been successful in his suits because of alleged fraud on the part of the defendant company and on the part of J.S. Hall, now deceased, former president and general manager of the Hall Manufacturing Company. The courts have been open to the plaintiff at all times during these 16 years. He has had his day in court. He has himself voluntarily dismissed several petitions, each based on the same cause of action, and finally he has had an adjudication in his favor by the judgment of March 23, 1928. From this judgment there was no appeal, and the judgment has been paid. He still threatens to bring another or other suits of the same kind, based upon the same cause of action; and it clearly appears that, unless he is enjoined, he will do so, to the great and irreparable injury of the defendant.
The prayer for an injunction contained in the defendant's cross-bill has been known in some jurisdictions as a bill of peace. In 2 Story's Equity Jurisprudence (14th Ed.), Section 1179, there appears the following text:
"Another class of cases to which bills of peace are now ordinarily applied, is where the plaintiff has after repeated and satisfactory trials established his right at law, and yet is in danger of further litigation and obstruction to his right from new attempts to controvert it. Under such circumstances Courts of Equity will interfere and grant a perpetual injunction to quiet the possession of the plaintiff and to suppress future litigation of the right."
In 4 Pomeroy's Equity Jurisprudence (4th Ed.), Section 1371, there is found the following:
"There are, however, special circumstances in which a resort to the injunctive jurisdiction may still be necessary, in order to prevent a failure of justice. * * * In short, the jurisdiction must sometimes be exercised to prevent a multiplicity of actions, or partial investigations which would work injustice."
A very few of the earlier cases in this state seem somewhat *Page 1318
out of harmony with this doctrine, but, upon close examination, it will be found that the said cases turned on peculiar facts.
In Gray v. Coan, 36 Iowa 296, the defendant was shown to have had a good defense at law, and there was no claim made of equitable reasons why the plaintiff should be enjoined. There was neither allegation nor proof that the remedy available to the defendant at law was not plain, speedy, and adequate. In other words, there was no claim or proof that further litigation would result in damages to the defendant of an irreparable character, notwithstanding that he had a complete defense to the action.
In Patterson Co. v. Seaton, 64 Iowa 115, upon the particular facts in that particular case, the court found that the litigation was not vexatious, in the sense of the term as applied to actions without merit, or brought to harass and vex the defendant therein.
In Jones v. Hughes, 156 Iowa 684, the real question was whether the court, sitting in equity in this state, may, in a suit brought by a citizen of this state against another citizen of this state, enjoin the prosecution in another state of an action to recover damages for wrongs committed in this state. This clearly is distinguishable from the right of a court to enjoin vexatious litigations.
In Wabash R. Co. v. Peterson, 187 Iowa 1331, this court laid down a rule for which the defendant in this case contends. We quote from the opinion:
"* * * there is no escaping from the conclusion that, on the facts at bar, the suit is an instance of vexatious litigation, such as is condemned by the quite general consensus of authority. See 2 Story's Equity Jurisprudence (13th Ed.), Section 901; 14 R.C.L., Section 109 (p. 408). Apparently, Gray v. Coan, 36 Iowa 296, runs counter to the weight of authority. But on analysis, the case turns on the proposition that one who is pursued with repetition of suits has an adequate remedy at law, because he may plead the earlier adjudications in bar. Whatever may be thought of the soundness of this reasoning, the decision is not in conflict with the cases that permit an injunction to restrain vexatious litigation in cases where there is not the remedy at law asserted in the Gray case. It suffices to say that *Page 1319
there is no remedy for the needless expenditure [of money] the prosecution of the suit will force upon the defendant."
In Moore v. Harkins, 179 N.C. 167 (101 S.E. 564), this question was before the court. We quote from the decision, as follows:
"We are of the opinion that the action of his Honor in enjoining the plaintiff from prosecuting further actions on the same cause of action was warranted by the facts. The remedy of a bill of peace to prevent vexatious litigation was well known at the common law. As a rule, the remedy has not been sought very often in this State, but the right to ask for it is well established, and it may be invoked in the pending action, and a new action for that purpose is not necessary under our method of procedure."
In Shevalier v. Stephenson, 92 Neb. 675 (139 N.W. 233), the court said, upon a case very similar to the one at bar:
"We must therefore consider that the plaintiff dismissed her cases voluntarily, and without any ground for so doing except to serve her own purposes. Under such circumstances, the plaintiff would be required to produce evidence to convince a court of equity that she was attempting in good faith to procure a fair trial upon the merits of her claim."
As previously stated, the plaintiff, in this case at bar, has failed to make any satisfactory showing to convince a court of equity that he was attempting in good faith to procure a fair trial upon the merits of his claim.
In Foltz v. St. Louis S.F.R. Co., 8 C.C.A. 635 (60 Fed. 316), which was an action to enjoin an action for ejectment, the court said:
"In Preteca v. Land Grant Co., 4 U.S. App. 327, 330, 1 C.C.A. 607, 50 Fed. 674, Judge Caldwell, in delivering the opinion of this court, said: `It may be true that the plaintiff had a remedy at law, but "it is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity."' Boyce's Ex'rs. v. Grundy, 3 Pet. 210, 215; Oelrichs v. Spain, 15 Wall. 211, 228." *Page 1320
In Haines v. Trueblood, 67 Ind. App. 456 (119 N.E. 383), the court said, among other things:
"As we have said, appellant and the other landowners involved have a remedy at law by reason of the statutory right to remonstrate. However, `it is not enough to defeat injunction that there is a remedy at law. It must be as plain, complete, and adequate — or, in other words, as practical and efficient to the ends of justice and its prompt administration — as the remedy in equity.' Meyer v. Town of Booneville (1903), 162 Ind. 165,70 N.E. 146. * * * In determining the adequacy of legal remedies and the consequent superiority of equitable remedies, some force is given to the fact, if it exists, that the former are vexatiously inconvenient, or that a denial of the latter results in irritation, annoyance, and embarrassment readily relieved by the application of such remedy. 10 R.C.L. 278; Fitzmaurice v. Mosier
(1888), 116 Ind. 363, 16 N.E. 175, 19 N.E. 180, 9 Am. St. 854. `In cases where the oppressive character of the litigation involved throws upon the plaintiff an unusual and unconscionable expense and annoyance, equity has jurisdiction to remove a cloud upon his title, notwithstanding a remedy exists at law.' Town ofCorinth v. Locke (1890), 62 Vt. 411, 20 A. 809, 11 L.R.A. 207. Likewise equity may frequently be invoked to prevent a multiplicity of suits (Royer v. State ex rel. [1916],63 Ind. App. 123, 112 N.E. 122, 113 N.E. 312), or for the purpose of suppressing litigation when otherwise there would be actions at law unnecessarily or burdensomely numerous. Lewis v. Rough
(1866), 26 Ind. 398."
Numerous other authorities might be cited. As has frequently been stated in the decisions, this power of the equity court will only be exercised with great caution, and only for very substantial reasons. We think the appellant has brought itself clearly within the rule. The history of this litigation presents a novel situation. There is in the record no satisfactory excuse for the bringing and dismissing of so many suits. The whole proceeding smacks very strongly of bad faith on the part of the plaintiff. The threat of the plaintiff to bring another or other suits upon the same cause of action, notwithstanding a former adjudication, and notwithstanding the numerous suits *Page 1321
already filed and dismissed by the plaintiff, shows bad faith on the part of the plaintiff.
Upon the facts in this particular case, we think the defendant is entitled to the injunction asked in the prayer of the cross-petition, and the cause is accordingly remanded to the trial court for an injunction in harmony with this opinion. —Reversed.
FAVILLE, C.J., and STEVENS, ALBERT, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430472/ | Burgess Allen, a childless widower, past 80 years old, died intestate on May 24, 1938, leaving as his only heir, his grandson, the defendant Leonard Ray Allen, who had just reached his majority. The latter, on his own application, was appointed administrator. The deceased had made a will giving his small estate to this grandson, but to avoid the expense of *Page 1305
administration he had executed conveyances of his real estate to the grandson, a few months before his death. He was afflicted with a cancer which had eaten away an eye, a large part of his nose and other parts of his face. The grandson was a son of a son of the deceased. His mother had died when he was about two or three years old, and his father had died when he was about 13 years old. He had lived with his paternal grandparents for a time after his mother's death, and later made his home in Colorado for a time. Still later he lived intermittently with these grandparents, for short periods. His grandfather had a small acreage on the edge of Creston, which he desired the boy to take charge of, while the former was still able to give him some direction.
On March 5, 1938, the grandfather and grandson went to the office of Thomas Mullin, a lawyer, who had advised the grandfather in other matters, and who had drawn his will. Their mission was to have the grandfather execute and deliver deeds of real estate to the grandson. Mullin was out of the office, and his brother, who was not familiar with the grandfather's business prepared two absolute warranty deeds, which the grandfather executed and delivered to the grandson. These deeds were immediately placed on record. When Mullin learned of this, knowing that the grandfather had desired to reserve the use of the property during his life, he got in touch with the grandfather. The latter and the grandson again came to Mullin's office, about March 19, 1938, to have the conveyances corrected. The grandson then executed two deeds reconveying the property to the grandfather, and delivered them, together with the two deeds of March 5th to the grandfather, and he then executed three deeds to the grandson. All of the deeds were then delivered to Mullin, to be held in escrow, as evidenced by a writing executed by the grandfather. This writing was addressed to Mullin, and recited the execution by the grandfather of the three deeds of March 19th, and that they were delivered to Mullin, on this condition: "You are instructed to hold these deeds during my life and at once following my death to deliver *Page 1306
them to said Leonard Ray Allen, provided, however, I do not during my lifetime call upon you to deliver it back to myself."
The grandfather's wife had died in June 1937. It appears that, for some months in 1937, Mr. and Mrs. Schad and their family had lived in the home of the grandfather. After the death of the grandmother, they remained with the grandfather until August 1937 when he let them go. At this time the grandson was present and heard his grandfather talk with Mrs. Schad and state to her that they were paid. Mrs. Schad in no way disputed him. The Schads never made any claim to the grandfather that he owed them, although he lived about nine months after they left his home. This appears as part of the plaintiff's case. So far as the record discloses, the old gentleman died in the belief that he owed the Schads nothing. He had money in the bank during all of this time. It appears that he paid his bills promptly. This is evident from the fact that, with the exception of the Schad claim, and the funeral expense, the only claims filed against the estate were the following: Central States Electric Co., $2.24; Iowa Southern Utilities Co., $2.27; Dr. A.S. Beatty, $22.75; Dr. Keith, $39.50; John M. Hood, groceries, $30.25. The grandson paid the last two accounts. The Schad claim was established by a judgment in the sum of $432 on October 26, 1938. It was thought that the deceased had around one thousand dollars in the bank at his death, but his balance at that time was but $118.62.
On May 28, 1938, Mullin, in compliance with the escrow writing, delivered the deeds which he held to the grandson.
It appears from the testimony of the grandson, as a witness for the plaintiff, that, during the years 1936 and 1937, when he had been steadily employed as a farm hand for over three years, he had assisted his grandparents. The grandfather then owned a quarter section farm, apparently heavily mortgaged. The boy on two occasions had his employer give the grandfather a check for $100, each time. At other times he gave him smaller amounts. On one occasion he paid for a hog out of his wages on the farm, and butchered it for his grandfather. He also furnished money to send him to a cancer sanitarium. He *Page 1307
made no claim that this money was consideration for any real estate transfer. He admitted that the transfers were gifts, and without consideration, except that he agreed with his grandfather, and it was a condition of the transfer, that he would give his grandfather as good a burial as the latter had given his wife. The casket, vault, and other funeral expenses of the grandmother were $550. The undertaker had no casket of the same type as that used for the grandmother, so the boy bought one a little more expensive for his grandfather. The entire funeral expense, including new burial clothes was $615.85. The grandson had expected there would be cash enough in the bank to pay this expense. He then began to try to dispose of the residence property involved in this action. And this is the only property involved in the trial below or on this appeal. After his wife's death, and in the fall of 1937, he had traded the equity in the quarter section for this residence property and perhaps another town property, and around $1,000 or $1,500 in cash. This residence property is about a mile or more from downtown Creston. The house was forty or more years old and quite badly run down. The grandson had practically closed a deal with one Cipra, who was to take the property at $550. He had had the abstract examined. The grandson then told him he thought he had a little better deal and asked to cancel the transaction. Cipra said he did not care in particular, and canceled the deal, upon condition that the defendant pay for examining the abstract.
This defendant had gone to Ralph Roland, the undertaker, who was an old time friend of the grandfather, and had performed the funeral services for his wife and son, and proposed to him that he take a deed to the property in full satisfaction of his undertaking account of $615.85 and $35 which this defendant had borrowed from him. Roland accepted the offer. He had a son, the defendant Robert Ricedorff Roland, recently married to the defendant Margaret Rae Roland. They were living with Ralph Roland. The son worked for his father, and the latter was indebted to him. A child was about to be born to them, and Ralph Roland directed the defendant Leonard Ray *Page 1308
Allen to convey the property direct to Robert Ricedorff Roland and wife, that they and their family might have it for a home. Such a deed was executed on June 13, 1938, and put of record on June 18, 1938. Roland and son immediately began making needed repairs on the place. The story and a half house and garage were painted with two coats. The plumbing and furnace were repaired. The foundation had receded from the frame work. The plastering needed repairing. New screens, glass and window frames were put in. The lot was cleaned up. The undisputed testimony is that $400 was spent in this repair work, and the items were given.
Not until June 22, 1938, was the Schad claim filed in the estate. On June 30, 1938, the claim was amended and the deed from Burgess Allen to his grandson was asked to be set aside. No other claim had been filed other than those heretofore noted. The plaintiff was appointed special administrator, and on order of the court was authorized to institute these proceedings. On July 13, 1938, he filed petition herein asking that the conveyances of this residence property, from Burgess Allen to Leonard Ray Allen and from the latter to his two co-defendants, be set aside as in fraud of creditors of the estate.
Testimony for the plaintiff respecting the value of the property is as follows: The plaintiff, who never saw the property until the trial, and who was never inside of it, said it was worth $1,500; a real estate man said it was worth from $1,250 to $1,500. These valuations were as of the time of the trial on February 14 and 15, 1939, after the repairs of $400 had been made upon it. It is true, they each testified that, if its condition was the same on June 13, 1938, and on March 5, 1938, they would say the valuation was the same on those dates. The record is that the conditions were not the same. Plaintiff's testimony also showed the Cipra deal of $550, and further that, after some repairs had been made, Roland sold it to one Kittleman for $800, but, after the latter heard that there might be litigation, he deeded it back. The appellants' testimony placed the valuation in March and June 1938 at $700.
[1] The trial court based its decision solely upon the ground *Page 1309
that the conveyances should be set aside, because of the fraudulent intent alleged. We have gone carefully through this record and find no evidence supporting a finding that this old gentleman had any intention, in conveying this piece of property to his grandson, of delaying or defrauding any creditor. So far as the record shows there is nothing to indicate that he thought he had a creditor except as to some current bills. Neither do we find that the grandson nor his co-defendant grantees nor Ralph Roland had any such knowledge or intention. The Rolands disclaim any knowledge of the Schad claim. It was not filed when the deed to them was made. It is true that the elder Roland saw the Schads in the Burgess Allen home, and that Burgess Allen often talked over business matters with him, and that he knew of the making of the deeds in March, but these matters in nowise warrant a finding that he had any knowledge of, or fraudulent intent or participation in, a transaction to defraud any creditor of the deceased, or to delay the collection of any claim against him or his estate. It is true also that the grandson did not believe the Schad claim was a just one, but this was because his grandfather had told him that he owed the Schads nothing, and his own personal knowledge of the matter. The plaintiff sought to prove by this witness that he and his grandfather had agreed upon the transfer of this property in order to defeat the collection of the Schad claim. The testimony of the grandson was in direct and definite denial of any such intention or agreement. The plaintiff vouched for this witness in making him his own, and, while he had the right to dispute his testimony with other witnesses, if any were available, he did not do so, and his testimony stands uncontradicted.
[2] It is our judgment that the evidence and the record as a whole does not warrant a finding that there was any fraud either actual or constructive in the transactions herein set forth. It is very questionable whether the property was worth much, if anything, in excess of the funeral charges and the $35 borrowed. The offer of Cipra was $550. Kittleman bought it for $800 after some repairs had been made upon it. This is concrete *Page 1310
evidence of value, much more convincing than opinion testimony. It was offered as a part of the plaintiff's case. Appellant's opinion testimony placed the value at $700 prior to the improvements. Appellee's opinion testimony was all after the improvements had been made. If there was any excess value over and above the funeral expenses, it was of such slight amount that the consideration could not be called so inadequate as to justify a finding of constructive fraud as against any creditor. The sale to the Rolands was, in our judgment, made in good faith. The improvements were made in good faith, and the Rolands should be protected with respect to the expenditures made. It is our conclusion and judgment that the deeds executed by Burgess Allen conveying the said residence property, described as the north 75 feet of lot 57 in Swigert's second addition to the city of Creston, Union county, Iowa, to Leonard Ray Allen, and the deed executed by him, conveying said property to the defendants Robert Ricedorff Roland and Margaret Rae Roland, and filed for record in the recorder's office of Union county, Iowa, on June 18, 1938, were each and all valid conveyances, for adequate and valuable consideration, and should be sustained, and that the relief prayed for by the plaintiff should have been denied.
It is therefore our judgment that the decree appealed from should be, and is, hereby reversed in all of its provisions, and it is hereby remanded to the district court for entry of decree in conformity to our conclusions and judgment as stated herein. — Reversed and remanded.
HAMILTON, C.J., and SAGER, STIGER, HALE, MILLER, RICHARDS, and OLIVER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430496/ | I am unable to agree with the majority that there was an issue for the jury in this case on the question of freedom from contributory negligence on the part of plaintiff's decedent. Circumstances will permit only a brief reference to the reasons.
The car in which plaintiff's decedent was riding belonged to her. It was being driven by one O'Neil, not only with her knowledge and consent, but for her use and benefit. She is therefore chargeable with whatever negligence there may have been on the part of the driver of her car. I do not understand that this proposition is in dispute in the case. It is mentioned here only to make clear at the outset that the situation is not different than what it would have been if the plaintiff's decedent herself had been the driver of her car. For convenience, we will refer to the car of plaintiff's decedent as plaintiff's car.
Viewing the evidence most favorable to plaintiff, we have this situation. Highway No. 6 is a paved east and west highway. Plaintiff was driving west on the north side, and defendant was driving east on the south side. They were both approaching a place in the highway where another paved highway leaves No. 6 at an angle to the southwest. There were no signs warning defendant of the existence of this highway, and traffic from it was required to stop before entering on No. 6. The plaintiff's decedent intended to take that road. When some 150 feet east of it, the driver of her car saw the defendant's car approaching from the opposite direction. It was night. The headlights of the oncoming car were shining. The driver of plaintiff's car then turned over on his left-hand side of the road directly in the path of the oncoming car and proceeded on the left-hand side of said paved highway a distance of 125 feet until the place was reached where the south-bound road turned from No. 6. He then attempted to cut the corner to get on the south-bound road and drove in front of defendant's *Page 638
oncoming car and the collision occurred. After the driver of the plaintiff's car, when some 150 feet east of the place where the turn was to be made, saw the defendant's car, he did not look again at defendant's car, and paid no further attention to traffic approaching from that direction. This is the evidence on which plaintiff relies to carry the case to the jury on the question of the freedom of plaintiff's decedent from contributory negligence.
It should be emphasized that we are not here dealing with a case where we must apply the general test of negligence, lack of ordinary care. We have a case here where the driver of plaintiff's car was under a positive statutory duty. There were three different statutes designed to promote safety on the highway which were violated by the driver of plaintiff's car, and such violations were negligence per se in two instances and prima facie evidence of negligence in the other. A statute (section 5020) required the driver of plaintiff's car to turn to the right and yield one-half of the traveled portion of the road when meeting another vehicle. Instead, such driver at a time when he could see the defendant's car coming left the right-hand side of the road and turned over on the left-hand side directly in the path of defendant's car and traveled there until the collision occurred. A statute (section 5033) required that such driver in turning to the left from one highway to another, pass to the right of and beyond the center before turning. Instead, he turned to the left 125 feet before he got to the highway leading to the left and attempted to cut the corner close to the left-hand side of the highway into which he was entering. A statute (section 5032) required such driver, before changing his course and making a left-hand turn across the path of cars coming from the west, to first see that there was sufficient space to make such movement in safety. Instead, he attempted to turn from highway No. 6 to the highway leading to the southwest without looking at all; he looked when he was 150 feet from the place where such turn was to be made, saw defendant's car coming, did not look again until he reached the place where the turn was being made and the collision was imminent.
As I understand the majority, these violations are of no consequence in this case because the car of plaintiff's decedent had reached a point a few feet to the south of the south line *Page 639
of the paving on highway No. 6, and on that part of the paving which goes to make up the highway which leads to the southwest. The reasoning is that under such circumstances there is no causal connection between the violations and the collision. There are some prior adjudications of this court which lend some support to the reasoning. But the question of causal connection is one of fact, not of law. Each case, therefore, involving the question must be determined upon its own peculiar facts. As applied to this case, it seems to me that the reasoning is unsound.
What caused this collision? If the driver of plaintiff's car had observed any one of the three statutory duties which he violated, it never would have happened. If the driver of plaintiff's car had yielded one-half of the traveled portion of the road to the defendant by turning to the right when he saw defendant's car coming and remained there until he reached the proper place to turn, and then ascertained whether he could make the movement in safety before attempting to turn, it could not very well have happened. Unless we are to substitute some mere formula for reality, the fact that the collision may have occurred a few feet south of that part of the paving which constitutes paved highway No. 6 proper can be of no consequence. It happened at a point, according to plaintiff's evidence, which might properly be called the south shoulder of No. 6. The presence of defendant's car at that point was the natural, ordinary, and almost necessary consequence of the manner in which the plaintiff's car was being operated. The defendant, as he was proceeding eastward on his right side of the road where he belonged, saw this car coming toward him on the left-hand side of the road directly in his path. He naturally supposed that it would turn to the right and yield one-half of the road. He watched it carefully. He did not dare to turn left and pass it on the left because the driver might wake up about that time and turn to his right and that would cause a collision. Moreover, the statute says that on meeting a car he should pass it on the right-hand side (section 5020). He crowded over on the shoulder of the road so as to avoid a collision. But the on-coming car, when it got almost even with him, turned more sharply to the left directly in his path. The defendant then attempted to turn left, but it was too late and a collision occurred. There is no dispute about these facts. *Page 640
There is a dispute as to whether the collision occurred on the paving which constitutes highway No. 6 or on the additional paving which constitutes a part of the angling road. The majority, as I understand it, make the issue of contributory negligence turn entirely on that question. And the majority, by applying a straight edge, are able to demonstrate that, if the collision occurred where plaintiff claims it did, it would be off the paving which goes to make up paved highway No. 6 proper. It is not claimed that under plaintiff's evidence it would be more than a few feet off. There is testimony by the driver of plaintiff's car that the front end of it was 18 or 20 feet beyond the yellow line. It appears that plaintiff's car was 15 feet long, which would mean that the back end of plaintiff's car was from 3 to 5 feet from the yellow line when the collision occurred. It should be borne in mind that this yellow line extends right up to No. 6, and that it runs nearly north and south, and that plaintiff was traveling west when he reached it. So that, under plaintiff's theory, while he would be off of No. 6, it would be only a few feet off. I cannot see that it makes any substantial difference whether this collision occurred a few feet south of the south line of the paving which is No. 6 proper or a few feet north of that line. The cause of its occurrence is controlling, not the place. The only reason for defendant being off the paving which is a part of No. 6 proper and to his right side was because he was forced off by the negligent and unlawful manner in which plaintiff's car was being operated. There is no reason suggested as to why defendant got off his proper path except the very obvious and natural one, that it was being occupied unlawfully by plaintiff's car coming toward him and that to remain there would cause a collision. It is no answer to say that defendant was mistaken and that, if he had remained on the right side of No. 6, plaintiff would have gotten out of the way before the collision actually occurred. He was confronted with a perilous situation, an emergency. It caused him to do what he did. What he did was an ordinary and natural consequence of the perilous situation. Plaintiff, by violating the rules of the road, created the perilous situation. Under such circumstances there is a direct causal connection between the negligence of plaintiff and the presence of defendant's car at the place where it was and the collision which occurred there. *Page 641
Much is said about the speed at which the defendant was driving, and it may be conceded for the purpose of this discussion that he was negligent. The undisputed fact remains, however, that he made an effort to avoid this collision, and was the only one who made any such effort. It should avail plaintiff nothing that defendant pursued a natural and a proper course to avoid the collision and to escape from the perilous position in which the conduct of the driver of the plaintiff's car had placed him.
There is one thought in connection with the failure to look before making the left turn which should be specially mentioned here. I am not unmindful of the fact that this court has held that one seeking to make a left turn is excused from contributory negligence if, before making the turn, his observations lead him to believe, as a reasonable person, that he can make the turn in safety even though it turns out that he was mistaken. This rule certainly shows a benevolent spirit toward those who violate traffic regulations. I take it that none of us would excuse one who engages in a race with a train to a railway crossing. Yet in that case there is no positive statutory duty as there is in the case of a man making a left turn across the path of oncoming traffic. The rule as announced by the court permits the motorist to race to the turn with such oncoming cars, and, if he loses, he may be excused from contributory negligence on the ground that he thought he could make it. It would seem that, if a traveler wishes to speculate on whether or not he can make it in safety, he might properly be held responsible for his error if he guessed wrong.
But it is not my purpose here to challenge a rule already established but to protest against its further extension. It certainly must be conceded that, if the plaintiff's car had proceeded straight ahead even on the left-hand side of the road in this case, there would have been no collision. Defendant was prepared to pass him on the right-hand side. That was prevented by the plaintiff turning to the left to take this side road. According to his own testimony, he did not look at all before making that turn. He looked the last time when he was 150 feet down the road. So that we are, by the opinion of the majority in the instant case, now saying that, notwithstanding the mandate of the statute, a traveler may make a left turn without looking at all for traffic from the opposite direction — *Page 642
that it is sufficient if he looked when he was 150 feet away from the place where the left turn is made. More than that, we say that proof of such conduct by plaintiff is proof of freedom from contributory negligence, although the plaintiff in turning passed directly in front of a car coming from the opposite direction and a collision instantly occurred, and such oncoming car was at all times visible, and the only possible reason for a failure to see it was a failure to look.
I cannot escape the conclusion that the burden of showing freedom from contributory negligence is not met by evidence of plaintiff's wholesale violation of statutes designed to promote highway safety where it appears that such violation as a natural consequence forced defendant off the path he would have otherwise pursued and into the place where the collision occurred.
I would reverse on the ground that a verdict should have been directed for defendant because the plaintiff had failed to present evidence from which a jury could find plaintiff free from contributory negligence.
I am authorized to say that MR. JUSTICE ANDERSON and MR. JUSTICE RICHARDS join in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430498/ | A former appeal of this case is reported in In re Estate ofSexauer, 198 Iowa 1378.
I. The only question in connection with the claim of undue influence that need be noticed is the ruling of the court sustaining proponent's objection to contestants' offer to prove conversations between one of the beneficiaries 1. WILLS: (Jacob) and others, after the execution of the validity: will, in which he admitted that it was through undue his importunities and because of his need that influence: the will was made. By the will, after the making declarations of certain bequests, the residue was required to of be divided into seven and one-half shares. One beneficiary. of these shares was given to Jacob. Each of the six remaining shares and the one-half share were given to other severally named beneficiaries. The bequest to the residuaries was not to them jointly. Jacob was not the principal beneficiary. He was one of a number. His declarations were not a part of the resgestae. The law is settled in this state that such declarations are not admissible. James v. Fairall, 154 Iowa 253, and cases cited. There is no evidence of the exercise of undue influence or duress.
II. The principal question is whether there is such evidence of mental disability as to require the submission of the case to the jury. The will was made September 15, 1920. Testatrix *Page 567
2. WILLS: died May 9, 1921. At the time the will was made, testamentary she was about 87 years of age. She had given capacity. birth to twelve children, of whom two predeceased her. Her husband survived her. The estate consisted principally of 80 acres in Polk County, acquired in early life. There is evidence tending to show that decedent had expressed her desire that her property should be divided equally among her children, and that some of the older children had remained at home for a number of years after they became of age, receiving no compensation other than clothing and a little spending money; that they and one who worked out helped in early years in maintaining the family and paying for the land; that some of them were without means, — inferentially that there is inequality. It is shown without dispute that the eyesight of testatrix was quite poor. The only evidence immediately relating to the execution of the will is that offered by proponents. The witnesses to the will were the attorney who drew it, Jesse A. Miller, and F.J. Alber. Mr. Alber says that testatrix and Jacob came to his office, and she asked him if he "would not go up and be a witness. She said she wanted to make a will." Witness asked her if she had any particular attorney she wanted to go to, and she said "Yes," she wanted to go to Judge Miller's office. They went over to Judge Miller's office, and witness told Judge Miller that she wanted to make a will. There were just the three of them in the office: testatrix, Judge Miller, and Witness Alber. Witness went back to his own office while the will was being drawn. He returned to Judge Miller's office after the will was drawn. Witness asked testatrix if she had read the will. Testatrix said "No," the judge had read it to her. Witness asked to have the stenographer read it to her, "so grandma could understand whether it was really what she wanted. * * * Because she said she couldn't read it herself. I think she said she didn't have her glasses. I don't know whether that was the reason, and I thought it was best for her to go to work and have the other lady read it to her, so I was sure she could center her mind the second time on whether it was the way she wanted it just that way." After it was read to her the second time, witness asked testatrix if it was the way she wanted it, and she said it was. It was then executed. In signing it, her signature ran over the printed portion; and at Alber's suggestion, that page *Page 568
was recopied, again read to her, and executed. Judge Miller asked testatrix what she wanted to do with the will, and she said, "Just leave it here." The will was kept in Judge Miller's office until February 16th, when it was mailed to testatrix, in response to a letter purporting to be from her (though not in her handwriting), asking that it be sent to her, which was done. It was sent back to Judge Miller, with a letter purporting to be from her, though not in her handwriting, saying that she had sent it to him because she wanted to change it, and wanted one of the devisees to have the same as the other girls. The letter said, "You fix her full share, and keep my will." A codicil was drawn and sent to her, but was not executed. The will, however, when returned to Judge Miller had a lead pencil change (not in her handwriting), from a half share to a whole share to one daughter.
A physician who had been serving her for 18 years testified that testatrix would come in the evening, asking for medicine, when she had had medicine in the morning; that for the last year she was quite childish and forgetful; that she had symptoms of senile dementia; that "within the last six months of her life, or such a matter," he did not think she would be capable of transacting business of importance. Another physician who had attended her testified that senile dementia existed possibly four years before her death, blunting or crippling the mental faculties, affecting, but not necessarily wholly destroying, memory. He testified that for the last six months there was some of her business that she could transact. The only line he had any knowledge of was her dealings with him. He said she would have to have some assistance in making change, on account of her sight. He would not say that she had lost the ability to write, but that she had lost the ability to see. A lay witness testified that he did not think she was capable of doing business about the time the will was made, but he did not testify to the facts upon which he based his conclusion, other than that she did not recognize him, and in a little time after being told who he was, she would take him for somebody else; that one might say she was "kind of flighty or something." Other witnesses testified to her not recognizing her children, and to her saying that she was forgetful; that she could hardly remember her children any more. There was evidence that some of her kitchen *Page 569
utensils were painted, and that testatrix said they would last longer. A grandson testified that testatrix, the last one or two years, would not carry on a connected, intelligent discussion with him. No witness, except as mentioned, expressed an opinion on her mental competency.
Ability to transact business generally is not essential to testamentary capacity. Advanced age, failure of memory, senile dementia not shown to render the testatrix of insufficient mental capacity to understand the nature of the act, to recollect the extent of her property and the natural objects of her bounty and their claims upon her, and to comprehend the manner in which she wishes her property distributed, childishness, mental weakness, old age, are not of themselves sufficient to deprive her of testamentary capacity. The term "senile dementia" is used by one of the physicians as meaning "a gradual deterioration of the mental powers," and by the other as indicating a deterioration of certain parts of the brain. It is significant that no witness, expert or lay, expresses the opinion that testatrix was of unsound mind at the time the will was made. The evidence that in the fall of 1920 some of the cooking utensils were painted, and that testatrix said they would last longer, arrests attention. One witness testified:
"Well, she had a little paint left after she fixed up the old cupboard, and she concluded to put it on the outside of some of these cooking utensils, didn't she? A. I suppose she did; it was paint. I didn't see her paint the cupboard, but she painted the cooking utensils. * * * She intended to use them; she had them sitting in there to dry. Q. You never saw any cake in any of them or any pie in any of them like that? A. No, there was not anything in them."
Another witness says he found a frying pan which had been painted on the inside, and some cake pans and pie pans and a tray; that testatrix said they would last longer if they were painted. The last time he saw them, they were piled in a box. The discovery of the fact seems to have excited some amusement, but no witness connects the incident with mental unsoundness. While one witness says that they were not getting worn out, and that testatrix used them, and intended to use them, there is no evidence of what use, if any, was in fact made of them. Contestants had the burden of showing mental incompetency. We *Page 570
do not think that a verdict of testamentary incapacity could be founded upon either this isolated circumstance or on that and the others which have been referred to, in the light of the entire record, especially in view further of the uncontradicted evidence of what occurred at the time the will was made. The law governing the subject has been so fully discussed in recent opinions that further comment would be superfluous. In re Will of Johnson,201 Iowa 687; Seamans v. Gallup, 195 Iowa 540; In re Estate of Koll,200 Iowa 1122; In re Estate of Lockmiller, 199 Iowa 358; In reWill of Richardson, 199 Iowa 1320; In re Estate of Shields,198 Iowa 686; Liddle v. Salter, 180 Iowa 840; Morrison v. McLaughlin,191 Iowa 474; In re Estate of Armstrong, 191 Iowa 1210; Bales v.Bales, 164 Iowa 257; Wendt v. Foss, 161 Iowa 122.
The judgment is — Affirmed.
De GRAFF, C.J., and EVANS and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430499/ | Plaintiff, S.S. Wright, the owner of a dwelling house located on the east seventy feet of Lot 6, Block 22, Corydon, Iowa, sought in this action a writ of mandamus to direct the defendants, the State Department of Health and Dr. Walter L. Bierring, Health Commissioner, to institute legal action to enjoin the Standard Oil Company of Indiana from storing gasoline on the west ninety feet of said Lot 6, and to compel said oil company to tear down and remove its oil service station located on said lot. Plaintiff alleged the maintenance of the service station and the storage of oil by the Standard Oil Company on Lot 6 constituted a violation of certain provisions of chapter 323, Code of 1939, known as the Housing Law. By amendment plaintiff stated Corydon was an incorporated town with no ordinances on housing imposing higher requirements than the minimum requirements laid down in chapter 323 of the 1939 Code.
The defendants moved to dismiss the petition on the ground that chapter 323, Code of 1939, is not applicable to Corydon. The motion to dismiss was sustained. Plaintiff stood on the *Page 874
ruling and brought the case here alleging error in the trial court's ruling.
The only issue presented by the motion to dismiss and the trial court's ruling thereon is one of statutory interpretation. The first two sections of chapter 323 provide as follows:
"6327 This chapter shall be known as the housing law and shall apply to every city of the first class and cities under commission form of government which, by the last state or federal census, had a population of fifteen thousand or more, and to every city as its population shall reach fifteen thousand thereafter by any state or federal census.
"6328 In all other cities having a population of less than fifteen thousand, and in incorporated towns, the council may adopt ordinances for the regulation and control of any or all matters covered by the provisions of this chapter, insofar as same may be reasonably applicable, and fix penalties for the violation thereof; and fix rules and regulations not inconsistent with those provided in this chapter for the enforcement of said ordinances."
[1] I. Plaintiff's entire argument hinges upon a construction of section 6828 and the interpretation of the word "may" in the portion providing "in incorporated towns, the council may adopt ordinances * * *." (Italics ours.) Plaintiff argues this may
should be interpreted as must and that in the absence of ordinances in Corydon, the provisions of chapter 323 govern. Plaintiff then goes on from this premise and argues that the petition alleges the storage of gasoline on the same lot as a dwelling, in violation of section 6400; the erection and maintenance of the filling station on the lot without leaving a proper rear yard, in violation of section 6339; and the erection and maintenance of the filling station on the same lot without maintaining a proper open and unoccupied space between the buildings on the lot, in violation of section 6345.
An incorporated town, such as plaintiff describes Corydon in the petition, is, by paragraph 3 of section 5623, Code of 1939, defined to be a municipal corporation having a population of less than two thousand. The only place where incorporated towns are mentioned in the chapter is in section 6328. We cannot *Page 875
construe this section as imposing upon such towns the requirements of the Housing Law. The legislative intent is quite clear. By section 6327 the provisions of the Housing Law are made to apply to every city of the first class and cities under the commission form of government with population now or hereafter of fifteen thousand, and in other cities of less than fifteen thousand and in incorporated towns the council may adopt housing ordinances regulating all or any matters covered by the Housing Law. The cities and towns of less than fifteen thousand receive merely a permissive grant of power to adopt housing ordinances. This is abundantly clear by reference to the title of the act as it was passed by the legislature, as chapter 123, Acts of the Thirty-eight General Assembly. The title states:
"AN ACT in relation to the housing of the people in cities of the first class and special charter cities and cities under commission form of government * * * also providing that all other cities and incorporated towns may adopt ordinances for the regulation and control of any or all of such matters * * *."
It is true that the word "may" is, in the field of statutory construction, sometimes given the meaning of "must" or "shall." But it is also true that this meaning will never be ascribed to it unless it is necessary to give effect to the clear policy and intention of the legislature. Kelley v. City of Cedar Falls,123 Iowa 660, 99 N.W. 556. In its ordinary meaning the word has a permissive use and confers discretion. In the role of "must" or "shall" it imposes a duty. Since its use in this statute is in connection with the adoption of ordinances involving the exercise of discretionary power, it is obvious the permissive or ordinary use was intended.
[2] II. Plaintiff next argues that this construction of the Housing Law renders the law unconstitutional as being violative of section 6, Article I, and section 30, Article III, of the Constitution of Iowa, and section 1 of the Fourteenth Amendment to the Constitution of the United States. The argument is that, if the law does not apply to second-class cities and incorporated towns, then it is not a general law having uniform operation within the Iowa constitutional provisions, and it *Page 876
denies to citizens in second-class cities and incorporated towns equal protection of the laws. Plaintiff's entire argument under the Iowa constitutional provisions is foreclosed by what we said in Eckerson v. City of Des Moines, 137 Iowa 452, 115 N.W. 177; State v. Grefe, 139 Iowa 18, 117 N.W. 13; Turtle v. Polk
Hubbell, 92 Iowa 433, 60 N.W. 733. A law is not offensively special in a constitutional sense because it does not operate upon all cities and towns in the state. A law is general if it operates upon all within a proper classification. Population can be a proper basis for classification if it bears a reasonable relation to the objects of the legislation.
The Housing Law is an exercise of the state police power. Burlington and Summit Apartments v. Manolato, 233 Iowa 15,7 N.W.2d 26. An examination of the provisions of the law shows the purpose to protect, by sanitary regulations, fire protection regulations, and other regulations, those who live in dwellings as therein defined in section 6329. Classification is primarily a question for the legislature, and, unless it appears to be arbitrary and capricious and without reference to the object of the legislation, courts will not disturb the legislature's classification. Here it seems quite obvious that the classification adopted by the legislature is reasonable. The problems of sanitation, fire hazard, poorly ventilated dwellings, and many other kindred problems that are present in large congested cities differ from the same problems in smaller cities. The squalor which the Housing Law is designed to eradicate is not much of a problem in a small community. We hold that the legislative classification is proper and therefore this valid exercise of the police power is not violative of the due-process clause of the Fourteenth Amendment to the United States Constitution. See Peverill v. Board of Supervisors, 208 Iowa 94,222 N.W. 535, and cases there cited.
We have seen fit to examine the constitutionality of the Housing Law without reference to the opposite argument of counsel for defendant to the effect that plaintiff has no right to raise the issue. We recognize the duty of courts whenever possible to construe an act of the legislature in such a way as to preserve its constitutionality. We do not, however, hold that *Page 877
one against whom an act is not being imposed can raise its constitutionality. After all, if we held the act unconstitutional, it would leave plaintiff's position unchanged.
The decision of the trial court is affirmed. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430500/ | On April 1, 1937, the plaintiff filed a petition at law seeking damages against the defendant in the district court of Webster County, Iowa. This action was commenced for the April, 1937, term of that court, which commenced on April 12, 1937. On April 8, 1937, defendant's attorneys wrote plaintiff's attorneys that the defendant just received word of the action, that they were then involved in other litigation, and asked that they be given time before being required to give attention to this case. Plaintiff's attorneys replied to this letter on April 9th saying: "We have no objection to your taking such time as you may wish in this, just so you let us know when you get around to make up the issues."
Nothing further was done in this action until May 29, 1937, when the defendant filed a motion for security for costs. This motion was in the following form, omitting the caption:
"The defendant moves the court to require the plaintiff to give security for costs in this action as provided by law, and in support of this motion the defendant presents the facts shown in the affidavit of defendant annexed hereto, which affidavit is made a part hereof.
"Thompson Weible, "Attorneys for defendant."
The affidavit attached to this motion was as follows:
"I, Burt J. Thompson, first being duly sworn, state that I am one of the attorneys for the defendant in the above entitled cause, that the defendant has a good defense to the whole of said action and that the plaintiff is a nonresident of the State of Iowa.
"Burt J. Thompson
"Subscribed and sworn to before me this 27 day of May, 1937.
"M.M. Thompson, "Notary Public."
Nearly a month after the filing of this motion the plaintiff *Page 1026
filed a resistance thereto upon the following grounds:
1. That the defendant, Metropolitan Life Insurance Company, did not make any affidavit in support of said motion as required by law.
2. That the affiant, Burt J. Thompson, attorney for the defendant, made no averments of his competency to make such affidavit as required by law.
3. That defendant was notified to appear and defend on or before noon of the second day of the April term, commencing April 12, 1937; that defendant's motion for security for costs was not filed until May 29, 1937, and no showing is made that any extension of time for filing said motion was granted by the court or by opposing party beyond the time required for appearance; that under these circumstances defendant waived his right to file said motion and the relief prayed for therein.
The motion for a cost bond was overruled; hence the appeal.
Section 11245 of the Code of 1935, relating to a cost bond, provides as follows:
"If a defendant, at any time before answering shall make and file an affidavit stating that he has a good defense in whole or in part, the plaintiff, or party bringing the action * * *, if he is a nonresident of this state, * * * before any other proceedings in the action, must file * * * a bond with sureties to be approved by the clerk, in an amount to be fixed by the court, for the payment of all costs which may legally be adjudged against plaintiff."
[1] I. Appellant contends that the court erred in overruling its motion for a cost bond because the motion was in proper form and supported by sufficient affidavit of one of defendant's attorneys setting forth the statutory requirements, being: (1) That defendant had a good defense in whole or in part to plaintiff's action; (2) That plaintiff was a nonresident.
Appellee contends that the statutory requirements of a motion for a cost bond were not met because the defendant personally did not make and file an affidavit stating that it has a good defense, or that plaintiff is a nonresident of this state. As shown by the affidavit attached to the motion for a cost bond hereinabove set out, it will be seen that the affidavit filed therefor was made by the defendant's attorney.
Appellant contends that the contents of the affidavit, in and *Page 1027
of themselves, are sufficient to meet the requirements of the statute. Appellee contends that because the affidavit was not made by the Metropolitan Life Insurance Company itself it does not meet the requirements of the statute. In other words, because the affidavit was made and filed by one of the attorneys for the defendant, it is insufficient to authorize an order for a cost bond.
The defendant, being an artificial person, could only make the affidavit by some person authorized to represent the corporation. In this case the showing for a cost bond was made by the affidavit of one of the attorneys for the defendant. Appellant contends that an affidavit for a cost bond can be executed by an attorney, and that under the broad statutory powers of an attorney he is not exceeding his authority in executing such an affidavit for his client.
Section 10922 of the Code provides:
"An attorney and counselor has power to: 1. Execute in the name of his client a bond, or other written instrument, necessary and proper for the prosecution of an action or proceeding, * * * or for the prosecution or defense of any right growing out of an action, proceeding, or final judgment rendered therein."
Appellant contends that this statute is broad enough to authorize an attorney to execute a written instrument for the defense of any right growing out of an action.
Under section 10920 of the Code, it is the duty of an attorney "to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of fact or law."
In State v. Mooney, 10 Iowa 506, an application for a change of venue was made by the defendant, supported by affidavits of two of its attorneys. It was contended that the application was not sufficient because two of the persons making the affidavit were attorneys for the applicant for a change. The court held that the attorneys had power to make the affidavit for their client.
That an attorney has authority to execute a bond to secure an attachment under the statute was also upheld in the case of Carson, Pirie, Scott Co. v. Long, 219 Iowa 444, *Page 1028 257 N.W. 815. In that case it was contended that the attorneys representing the plaintiff had no authority to execute the attachment bond issued on behalf of the plaintiff. The court said [page 447 of 219 Iowa, page 817 of 257 N.W.]:
"If defendant has failed to show such attorneys' lack of authority to represent plaintiff, then as such attorneys they were authorized to execute the bond. An attorney, representing a party has, under section 10922, authority to execute a bond for his client. This section provides:
"`An attorney and counselor has power to:
"`1. Execute in the name of his client a bond, or other written instrument, necessary and proper for the prosecution of an action or proceeding, * * * or for the prosecution or defense of any right growing out of an action, proceeding, or final judgment rendered therein.'"
This rule was sustained in Carpenter v. Clements, 122 Iowa 294, l.c. 297, 98 N.W. 129, l.c. 130. In that case this court said:
"Section 3901 [now section 12110] of the Code reads as follows: `Whenever it appears by the affidavit of the plaintiff or by the return of the attachment, that no property is known to the plaintiff or to the officer on which the attachment can be executed or not enough to satisfy the plaintiff's claim and it being shown to the judge of any court by affidavit that the defendant has property within the state not exempt, the defendant may be required by such judge to attend before him or before the court in which the action is pending * * * and give answers on oath respecting his property.' It is contended that the court was without jurisdiction in the matter, and acted illegally in overruling defendant's motion to dismiss and his demurrer to the application, and in ordering him committed for contempt, for thereason that the affidavit was not made by plaintiff as thestatute requires; that the person who made the affidavit did not show himself competent to make it; and that in no case can anyperson other than plaintiff make the requisite affidavit.
"Turning now to the affidavit which was the basis of the proceedings, it will be observed that it was not made by the plaintiff in the main case, but that the application was made *Page 1029
for her and on her behalf by her attorneys, and that the affidavit was made by D.W. Hamilton, who we may assume was one of the plaintiff's attorneys. It will be noticed that the statute refers to two distinct matters — one the fact that there is no property on which the writ can be levied, or not enough to satisfy the plaintiff's claim; and the other that the defendant has property within the state which is not exempt. This last matter need not be shown by the affidavit of the plaintiff, but by any one who has knowledge of the facts. * * *
"But as to the other matter the statute says that, if it appears from the affidavit of plaintiff or from the return of the attachment that no property is known, etc., then, upon a showing of the second requisite, the defendant may be required to give information under oath regarding his property. This was not showneither by the affidavit of the plaintiff or by the return of theattachment, but is shown by the affidavit of Hamilton, and the application was on the behalf of the plaintiff. * * * Must the affidavit then be made by the plaintiff himself, or is it sufficient that he adopts the affidavit made by some one else, who we must assume for the purposes of the case knew of the facts to which he made oath? There may be cases where plaintiff has no knowledge as to the defendant's property, but in which his attorney may have full information thereof; and we think that where the plaintiff makes the application and accompanies it by an affidavit as to the facts, although made by another, he so far adopts the affidavit as to make it his own for all purposes connected with such a proceeding; that the statute, although not literally fulfilled, has been substantially complied with; and that such a showing is a sufficient basis for the order for an examination." (Italics ours.)
Now the situation in the case at bar and that in the Carpenter case is practically identical. In each a special remedy was sought, based upon an affidavit. In the Carpenter case the statute provided: "Whenever it appears by the affidavit of theplaintiff," etc. In the case at bar the statute provides: "If adefendant shall make and file an affidavit * * *." In the Carpenter case the court held that the affidavit of the attorney was sufficient. It is our conclusion that our ruling in this case is controlled by that in the Carpenter case.
We are therefore constrained to hold that the court erred *Page 1030
in holding that the statutory affidavit could not be made and filed by defendant's attorney.
II. Appellant also contends that the court erred in holding that the affidavit was insufficient because the affiant, Burt J. Thompson, attorney for defendant, made no averments of his competency to make such affidavit as required by law.
Appellee contends that the affidavit must set out his means of knowledge and that he has personal knowledge of the facts contained in the affidavit. This question has also been ruled upon by us in the case of Carpenter v. Clements, 122 Iowa 294,98 N.W. 129.
[2] It is true there are some statutes requiring verification of pleadings to be made by persons knowing the facts, and in such cases the affidavit shall be to the effect that the affiant believed the statements therein contained to be true. Code sections 11160 to 11164. These statutes, however, relate to verification of pleadings and not to affidavits generally, in support of motions for special remedies. Sioux Valley State Bank v. Kellog, 81 Iowa 124, 46 N.W. 859; Hueston v. Preferred Accident Insurance Company, 161 Iowa 521, 143 N.W. 566.
In Hueston v. Preferred Accident Insurance Company, 161 Iowa 521, l.c. 527, 143 N.W. 566, l.c. 569, this court said:
"It is also claimed that the verification of the affidavit of merits and also of the answer, sworn to by F.T. Hughes as one of the attorneys for the defense, did not show such knowledge as entitled it to be treated as a proper pleading or showing in the case. Code section 3584, [now section 11164] provides that, `if the statements of a pleading are known to any other person than the party, such person may make the affidavit which shall contain averments showing affiant competent to make the same.'
"Under Code, section 3583 [now section 11163], which governs the affidavit made by attorneys in the cause, this court has held that the rule as to showing competency applies to pleadings only and not to other matters which may require verification. Carpenter v. Clements, 122 Iowa [294], 298, 98 N.W. 129; Sioux Valley State Bank v. Kellog, 81 Iowa 124, 46 N.W. 859."
In Carpenter v. Clements, 122 Iowa 294, l.c. 298, 98 N.W. 129, l.c. 131, upon this question the court said: *Page 1031
"Plaintiff in this case relies on Clute v. Hazleton, 51 Iowa 355,1 N.W. 672, which holds that an affidavit of an attorney to a pleading is insufficient if it fails to show his competency as required by section 3583 of the Code, which was in force when that case was decided. That decision is not in point, for the reason that it has reference to pleadings only, and not to other matters which may require verification. In Sioux Valley State Bank v. Kellog, 81 Iowa 124, 46 N.W. 859, this distinction is pointed out, and it is there held that an attorney who verifies a petition for an attachment need not show his competency. The sections of the Code with reference to verification of pleadings on which the plaintiff herein relies are not applicable to this proceeding for the reason that the application in the main case was not a `pleading' as that term is used in the statute."
[3] Likewise in the case at bar the affidavit involved herein, not being a pleading, is not governed by the statutes relating to verification of pleadings. In Bates v. Robinson, 8 Iowa 318, l. c. 321, the court says:
"Upon the exception that the affiant does not state his means of knowledge, we need only say that there is no very clear ground upon which we can hold this essential in an affidavit for an attachment, although it is the better practice, and desirable in all cases where the oath is made by one not a party, or one not presumed to have the information."
So in Koch v. District Court, 150 Iowa 151, l.c. 155,129 N.W. 740, l.c. 741, this court said, referring to the case of Jordan v. Circuit Court, 69 Iowa 177, 28 N.W. 548:
"`The affidavit of one Drake was filed in these cases; but it is objected that it is insufficient, because it merely shows the facts constituting the violation of the injunctions, and does not show that the affiant had personal knowledge of the facts. In our opinion, however, the affidavit complies with the statute. It is not expressly provided that the affiant shall show that he had personal knowledge of the facts.'"
Again in Carpenter v. Clements, 122 Iowa 294, l.c. 298,98 N.W. 129, l.c. 131, this court also said:
"As he verified his statements, it must be assumed that he *Page 1032
had knowledge thereof, and that he was not required to show his competency to make it. When one makes an affidavit, we must assume that he has knowledge of the facts to which he testifies, else we must presume that he committed perjury, which we are not justified in doing."
[4] The statute in this case does not require the affiant to show his competency to make the affidavit by alleging that he has means of knowledge, and knowledge of the facts sworn to by him. This is presumed by the making of the affidavit. It will be presumed that the attorney making the affidavit had sufficient knowledge of the facts to enable him to make the same. We are therefore constrained to hold that the affidavit was sufficient in this respect.
[5] III. Appellant also contends that the court erred in holding that the application for a cost bond was not filed in time. Appellee contends that as the defendant was required to appear and defend on or before noon of the second day of the term, which was April 13, 1937, and that because it failed to file its application for a cost bond until May 29, 1937, the application was not filed in time.
The record shows without dispute that there was some correspondence between the attorneys for the defendant and the attorney for the plaintiff, prior to the time for defendant's appearance, in which plaintiff's attorney consented to an extension of time by the defendant. The correspondence between the attorneys upon that question is hereinabove set out.
The statute [section 11245] relating to the filing of a bond for costs provides:
"If a defendant, at any time before answering shall make and file an affidavit," etc.
This statute authorizes the affidavit to be filed at any time before answering.
Appellee relies strongly upon the case of Sprague v. Haight,54 Iowa 446, 6 N.W. 693, as holding that if the motion for a cost bond is not filed within the time required for appearance it cannot be filed thereafter. We have examined this case but find that an order of court was made therein requiring the motion for a cost bond to be filed within a certain time. The motion was not filed within that time. The effect of that ruling *Page 1033
is that where an order of court is entered, requiring the application for a cost bond to be filed within a certain time, it cannot be filed thereafter.
What may have been said therein about the necessity of filing the application for a cost bond at the time when defendant's appearance is required is dictum because the facts therein show that there was an order of court requiring the application to be filed within a certain time. There was no such order in the case at bar.
It is our conclusion that where no order of court has been made requiring the filing of a motion for a cost bond within a certain time, then, under the statute, it may be filed at any time before the answer is filed. The motion for a cost bond in this case was filed long prior to the filing of any answer therein. The statute authorizes the filing of an application "any time beforeanswering" and we cannot read into the statute a different requirement where no definite time has been fixed by an order of court. In addition thereto, it appears from the evidence that the agreements made between the attorneys by correspondence was sufficient to authorize defendant's delay in filing said application.
The ruling of the court in the Sprague case does not apply in this case because there was no agreement whatever in that case for any extension of time to the defendant; neither was there any order of court in the case at bar requiring the motion to be filed at a certain time. The court erred in holding that the application was not filed in time.
For the reasons hereinabove expressed, we are constrained to hold that the judgment of the lower court was wrong in overruling defendant's motion for a cost bond. The judgment is therefore hereby reversed. — Reversed.
SAGER, C.J., ANDERSON, DONEGAN, HAMILTON and STIGER, JJ., concur. *Page 1034 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430501/ | Julia Braga commenced an action in the municipal court of the city of Marshalltown against Jay M. Stowell and Clara M. Stowell to obtain possession of certain farm land, the lease of which expired on February 28, 1934. George A. Stowell, guardian of H.C. Stowell, a person of unsound mind, filed a petition of intervention, alleging ownership of said land in H.C. Stowell, incompetent. The only defense pleaded by the original defendants and by George A. Stowell, guardian of the property of H.C. Stowell, the intervener, was that the guardian had a suit pending in the district court of Marshall county, Iowa, in behalf of his ward, wherein he was asking that title to the said real estate be quieted in him and that as such guardian he had prior to March 1, 1934, entered into a lease with Jay M. Stowell and Clara I. Stowell for the said real estate for one year, beginning March 1, 1934, and that, on that account, the question of title to the real estate was involved and the case should be transferred or removed to the district court of Marshall county, Iowa. There was no denial of the lease that had been made with appellee, and no denial that it terminated on February 28, 1934, and no denial that a three-day notice to quit had been given before the suit in the municipal court was started. In fact, there was no issue on any of the material allegations in appellee's petition. On motion of the appellee, the petition of the intervener was stricken, and, the intervener having elected not to plead further, judgment was entered in favor of the appellee, and an order entered, removing the Stowells from the real estate and putting appellee in possession thereof. From such judgment and order the intervener and defendants have appealed to this court.
The only question argued by the appellants is that under section 12274 of the 1931 Code it was the duty of the municipal court to have transferred the case to the district court, it being the claim *Page 857
of the appellants that title to the property in question was put in issue.
It must be kept in mind at all times that in the case at bar the action was one brought to obtain possession of certain farm land. In the case of Chambers v. Irish, 132 Iowa 319, 322, 109 N.W. 787, this court said:
"It was not error to strike the plea in abatement. There is presented by an action of forcible entry and detainer nothing more than the question as to the right of possession of the lands in controversy. The question of title, legal or equitable, is not involved and cannot be determined in such action. As applied to a case such as the one in hand, the matters of inquiry may be specially stated thus: Does the relation of landlord and tenant exist between the parties? And, if so, is the defendant holding over after the termination, or contrary to the terms, of his lease"
In the case of Music v. DeLong, 209 Iowa 1069, 229 N.W. 673, Justice Kindig, speaking for the court said, at page 1072:
"Appellants' answer in the case at bar does not raise an issue of title to real estate; but at this juncture appellants refer to an action now pending in the district court between the same parties, wherein relief is sought from the appellees for the fraud aforesaid. Obviously, however, regardless of the issues in the district court proceeding, title is not involved in this forcible entry and detainer action. Here `fact of possession' alone is material. Title, except as a mere incident, is not concerned. State Exch. Bank v. Iblings, 190 Iowa 1045, 181 N.W. 423; Cassiday v. Adamson [208 Iowa 417, 224 N.W. 508], supra; Cagwin v. Chicago N.W. Ry., 114 Iowa 129, 86 N.W. 220; Delmonica Hotel Co. v. Smith, 112 Iowa 659, 84 N.W. 906."
The substance of this holding is that the defendant in an action of forcible entry and detainer cannot bring in some collateral matter, wherein the defendant or some third person is involved with the plaintiff and set it up as a defense. If the defendant is the tenant of the plaintiff, and, if his lease has expired and he is holding over, he has no defense. If he or any third person has any right in an action pending in another court, he or the third person must resort to that action to assert and obtain his rights. The appellee's proof in the case at bar shows the lease in suit expired on February 28, *Page 858
1934, and that the appellants were holding over after the termination of this lease; that they had been duly served with a proper three-day notice to quit, which appellants admitted. It thus appears they had no defense to the appellee's claim for possession.
The lower court was right, and the judgment and decree of the lower court must be, and it is hereby, affirmed.
ANDERSON, C.J., and KINTZINGER, ALBERT, DONEGAN, PARSONS, HAMILTON, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430503/ | My reasons for dissenting from the majority opinion may be skeletonized as follows: Plaintiff's contentions were that defendant owed the note in suit to plaintiff and defendant, the sole beneficiaries of the estate. The majority opinion says, "For plaintiff to assert such contentions it was necessary to attack the adjudication on the basis of fraud or mistake." The "adjudication" was the probate order approving the final report. As their reason for laying down what is quoted above the majority say that plaintiff's contentions were directly opposed to the "adjudication," that is, directly opposed to the probate order. Seemingly, in saying this the majority misconceives what issues and matters the probate order adjudicated. It was entered in a hearing in which the adverse parties were on the one side the executors, on the other side the beneficiaries of the estate. The only adverse interests involved were those existing between the executors as executors and the beneficiaries as beneficiaries. No issue was before the court as to which the executors and the defendant debtor of the estate were adverse parties. There was nothing asked by any party to have adjudicated respecting defendant's liability to the estate or to the beneficiaries then holding the note he owed. Yet the majority has it in mind that in the order it was adjudicated that defendant was not liable after the order was entered. What the majority by implication puts into the order would have expressly appeared, instead of impliedly, had the probate court written into the order a provision to the effect that from and after entry of the order defendant's liability shall cease on any note or mortgage owing the estate that may have been turned over in kind to the beneficiaries. Possibly the majority might admit there was no issue before the court that would have warranted the court in expressly so adjudging. Nevertheless the opinion interpolates such a provision into the decree, inferentially. I fail to see any earmarks of reasonableness in the accomplishment. The decretal portion of the order was that the estate had been fully administered. This determined all issues that were before the court, and accorded with the facts. The debts and any specific legacies had been paid and the remaining *Page 877
assets were in the hands of the proper beneficiaries including the note and mortgage that they had taken over in kind. This taking over was a proper incident to the closing of the estate. No court order was essential in the sense that there were any adverse interests to be determined by an order. At most an order would have been but a recordation of the beneficiaries' election to take the assets in kind. The beneficiaries' respective shares in the note and mortgage vested in them instanter upon the death of the testator. It is the mere legal title that passes to the executor and distribution by him gives the beneficiaries no new title. It only ascertains the property to which the title attaches. Christie v. C.R.I. P. Ry. Co., 104 Iowa 707,74 N.W. 697. The agreement of division of the note and mortgage between the beneficiaries was valid. Douglas v. Albrecht, 130 Iowa 132,106 N.W. 354. The beneficiaries having so agreed the executors had no further right to administer upon the note and mortgage. Their right to make claim thereon being nonexistent the executors could not have made an issue, on the hearing, against defendant with respect to the note. Heinz v. Vawter, 221 Iowa 714,266 N.W. 486. That the probate order adjudicated nothing more than that the estate had been fully administered is made clear if one envisions what would have been the reforming in equity, mentioned as a sine qua non by the majority. The complaint would have been that the final report and order in probate had omitted mentioning that in closing the estate a portion of the assets had been turned over in kind to the beneficiaries. In event the equity court had not refused to act at all because of the immateriality of the thing complained of, the most it could have done would have been to incumber the record by inserting the incidental fact set out in the complaint. But after being inserted that fact would in no manner affect the order as originally made. It would still remain and be the same adjudication upon the one question before the court, whether the estate had been fully administered. After such reforming the relative rights of plaintiff and defendant in the instant case would have been the same as they were on the trial that was had. Being unable to sense that the opinion rests on a sound proposition of law, I would reverse the judgment that was ordered against plaintiff.
SAGER, J., concurs in the foregoing dissent. *Page 878 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3210997/ | 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
A15-1144
State of Minnesota,
Respondent,
vs.
Gregory Mark Bowles,
Appellant
Filed May 31, 2016
Affirmed
Worke, Judge
Stearns County District Court
File No. 73-CR-13-3289
Lori Swanson, Attorney General, Robert A. Plesha, Assistant Attorney General, St. Paul,
Minnesota
Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota
Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Smith,
Tracy, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his third-degree assault conviction, arguing that the evidence
was insufficient to show that he inflicted substantial bodily harm. We affirm.
DECISION
A jury found appellant Gregory Mark Bowles guilty of third- and fifth-degree
assault and two counts of terroristic threats. Bowles challenges the sufficiency of the
evidence to sustain his conviction of third-degree assault, arguing that the victim’s
injuries do not constitute substantial bodily harm.
When reviewing the sufficiency of the evidence, this court reviews “the record to
determine whether the evidence, when viewed in a light most favorable to the
conviction,” is sufficient to allow the jury to reach the verdict that it did. State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989). This court will not disturb the verdict if the jury,
“acting with due regard for the presumption of innocence and for the necessity of
overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [the
appellant] was proven guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d
465, 476–77 (Minn. 2004) (quotation omitted). This court assumes that “the jury
believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989).
“Whoever assaults another and inflicts substantial bodily harm” is guilty of third-
degree assault. Minn. Stat. § 609.223, subd. 1 (2012). Substantial bodily harm is “bodily
injury which involves a temporary but substantial disfigurement, or which causes a
temporary but substantial loss or impairment of the function of any bodily member or
organ, or which causes a fracture of any bodily member.” Minn. Stat. § 609.02, subd. 7a
(2012).
2
Here, when Bowles was a patient in a hospital, A.O., a behavioral-health case
manager, was called to calm him down. A.O. calmed Bowles, but he had a second
outburst. During the second outburst, Bowles struck A.O. so hard that she flew
backwards and hit her head. At Bowles’s jury trial, A.O. testified that she suffered
bruises and a concussion.
Bowles claims that A.O.’s concussion does not amount to substantial bodily harm
because she “never lost consciousness.” But while Bowles cites State v. Larkin, for the
proposition that a temporary loss of consciousness amounts to substantial bodily harm, he
cites no caselaw that states that a victim must lose consciousness in order to suffer
substantial bodily harm. See 620 N.W.2d 335, 337 (Minn. App. 2001).
Bowles also discounts A.O.’s testimony that she suffered a concussion, claiming
that an MRI and a CT scan showed no injuries. But, for purposes of our review, we
assume that the jury believed A.O.’s testimony. See Moore, 438 N.W.2d at 108. Further,
other evidence corroborated A.O.’s statement that she suffered a concussion.
A.O. testified that she had an MRI and her diagnosis was “closed head injury,
which means injury to [her] brain.” Dr. John Mertz testified that he treated A.O. for a
“fairly large hematoma [over] her occipital area,” meaning “blood in between the skin
and the skull on the back of the head.” While a CT of A.O.’s head did not show any
acute injuries, Dr. Mertz explained that a concussion may not be observable on a CT. Dr.
Mertz defined a concussion as “a head injury that you don’t see any observable lesions on
the CT from that injury, and so we think that the injuries are microscopic, that they’re not
large enough to see but they definitely have their effects.” A.O. testified regarding the
3
“effects” of her concussion—a terrible headache and the inability to think, concentrate, or
rest.
Bowles further claims that A.O.’s injuries were “only temporary.” But under the
statute, substantial bodily harm means “temporary but substantial disfigurement, or
[injury] which causes a temporary but substantial loss or impairment of the function of
any bodily member or organ.” Minn. Stat. § 609.02, subd. 7a (emphasis added). There is
no requirement that the injury result in permanent impairment. See, e.g., State v.
Carlson, 369 N.W.2d 326, 327–28 (Minn. App. 1985) (holding two black eyes, a bloody
nose, bruises, and scratches constitute substantial bodily harm), review denied (Minn.
July 26, 1985).
A.O. suffered substantial bodily harm; her injury temporarily, but substantially,
impaired the function of her brain. See State v. Ayala, No. A13-2322, 2014 WL
7236931, at *3 (Minn. App. Dec. 22, 2014) (stating that substantial bodily harm
established by evidence of head injury that caused bleeding, a laceration, and a
hematoma, and that while concussions are difficult to diagnose “especially in the
immediate aftermath of a head injury,” recurring headaches could be consistent with a
mild concussion), review denied (Minn. Mar. 17, 2015); In re Welfare of W.O., No. A10-
1535, 2011 WL 1237558, at *2 (Minn. App. Apr. 5, 2011) (stating that head wounds
carry the extra risk of concussion that are not always immediately apparent), review
denied (Minn. June 14, 2011).
Affirmed.
4 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4073485/ | JUDGMENT
Court of Appeals
First District of Texas
NO. 01-15-00300-CV
SUMMIT INDUSTRIAL CONSTRUCTION LLC, Appellant
V.
UTICA EAST OHIO MIDSTREAM, LLC, Appellee
Appeal from the 190th District Court of Harris County. (Tr. Ct. No. 2015-03174).
Appellant Summit Industrial Construction LLC has filed a motion to dismiss the
appeal. After due consideration, the Court grants the motion to dismiss. Accordingly, the
Court dismisses the appeal.
The Court orders that Summit Industrial Construction LLC pay all appellate costs.
The Court orders that this decision be certified below for observance.
Judgment rendered November 17, 2015.
Panel consists of Justices Higley, Huddle, and Lloyd. | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211901/ | WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 9, 2016
In the Court of Appeals of Georgia
A15A0223. FUCIARELLI v. MCKINNEY et al.
ELLINGTON, Presiding Judge.
The Supreme Court of Georgia reversed Division 2 of our opinion in this case,
holding that the Georgia Taxpayer Protection Against False Claims Act, OCGA §
23-3-120 et seq., requires the Attorney General to approve taxpayer retaliation claims
brought under subsection (l) of the Act. Accordingly, we vacate Division 2 of our
opinion and adopt the opinion of our Supreme Court as our own in place of that
division.
Judgment affirmed. Barnes, P. J., Phipps, P. J., and Dillard, McFadden, Ray,
and McMillian, JJ., concur. | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430551/ | This case was originally decided in Shirkey v. Keokuk County et al., 275 N.W. 706. A rehearing was granted and the former opinion is hereby withdrawn, except as reaffirmed and modified herein.
The plaintiff Martha Shirkey, appellant, commenced this action against Keokuk County; Ned Wood, J. Forest Embree, and Fred X. Kendall, members of the board of supervisors of said county; and against William Kelly, an employee of the defendant county engaged in the operation of a tractor for and on behalf of said county. Plaintiff alleges in her petition:
"1. That on December 4, 1935, at more than thirty minutes after sunset on said day, plaintiff was riding in a Ford automobile, owned and driven by her husband, on a county road about a mile and a half northwest of Richland in Keokuk County, Iowa;
"2. That the defendant, William Kelly, was an employee of Keokuk County under the direction and control of the defendant Board of Supervisors, and was operating a county tractor on the east or left side of said highway, traveling in a southerly direction;
"3. That said Kelly negligently, recklessly, carelessly, unlawfully, and in an incompetent manner, drove or operated said tractor at a high rate of speed, without lights as required by law, on the left or wrong side of the road, when the evening was quite dark, and thereby caused the same to crash into the automobile in which plaintiff was riding; and by reason of such careless, reckless, negligent, unlawful, and incompetent operation of said tractor by said William Kelly, a collision was caused whereby plaintiff was crushed, broken, rendered sick, ill, and disabled, as a result of which plaintiff suffered damages in the sum of $26,446.60."
Three demurrers were filed by the defendants; one by defendant Keokuk County, one by the defendant board of supervisors, and one by the defendant William Kelly, the operator of the tractor in question and an employee of the defendant county. *Page 1183
Each of these demurrers was sustained by the lower court and judgment entered against plaintiff for costs. Plaintiff appeals.
[5] I. The facts and the discussion of the law pertaining to the separate demurrers filed by Keokuk County and by the Board of Supervisors of said county are fully set out, considered, and discussed in the opinion in Shirkey v. Keokuk County, 275 N.W. 706. The court sustained these two demurrers, and we are satisfied with the court's ruling in so doing and adhere to and reaffirm our former ruling and opinion thereon. The reasons for this court's ruling thereon are fully set out, considered, and discussed in our former opinion. We are satisfied therewith and deem it unnecessary to give them further consideration except by reference thereto. It is therefore our conclusion that there was no error in the lower court's ruling on the separate demurrers of Keokuk County and its Board of Supervisors.
[6] II. The remaining question is whether or not the lower court erred in sustaining the defendant Kelly's demurrer to plaintiff's petition.
Appellees contend that the defendant Kelly, in performing the services in which he was engaged, was in the performance of a governmental function for Keokuk County and that, inasmuch as the county is not liable for its negligence while in the performance of a governmental function, it necessarily follows that its employee who was engaged by the county in the performance of such service is likewise exempt from liability.
Appellant contends that the action of the defendant Kelly constituted an unlawful act amounting to misfeasance and positive negligence on his part for which he is personally liable regardless of his employment by Keokuk County.
The substituted petition alleges:
"That the said William Kelly unlawfully and in an incompetent manner drove or operated said tractor * * * by driving it at a high rate of speed for such a vehicle, without lights as required by law * * * and on the * * * left, or wrong side of the road, when the evening was quite dark, and thereby causing the same to crash into the automobile in which plaintiff was riding, and by reason of such careless, reckless, negligent, unlawful, and incompetent operation of said tractor * * * by said William Kelly, a collision was caused whereby plaintiff was crushed, broken, rendered sick, ill, and disabled." *Page 1184
The demurrer to this petition admits these facts, and the question for consideration therefore is whether or not the defendant, William Kelly, for his own recklessness, negligence, and unlawful acts can be held liable for the injuries caused by him, notwithstanding his employment by Keokuk County.
Appellees contend that the defendant Keokuk County, in the performance of the work being done by and through its employee, the defendant William Kelly, was engaged in the performance of a governmental function by reason of which neither the defendant county nor its employee, William Kelly, is liable for the acts complained of. Appellees also contend that under the doctrine announced in Hibbs v. Independent School District, 218 Iowa 841,251 N.W. 606, and other like cases referred to in Shirkey v. Keokuk County et al., Iowa, 275 N.W. 706, there can be no liability on the part of the defendant Kelly, because Kelly was engaged in the performance of a governmental function for Keokuk County.
Since the rendition of the opinion in the Hibbs case, and since the rendition of the original opinion in Shirkey v. Keokuk County et al., Iowa, 275 N.W. 706, this court, in a well considered opinion in the recent case of Montanick v. McMillin, 225 Iowa 442,280 N.W. 608, laid down the rule that an employee of a municipality is liable for an act of misfeasance on his part, notwithstanding the fact that he is engaged in the performance of a governmental function. In that case this court said, 225 Iowa 442, l.c. 458, 280 N.W. 608, l.c. 616:
"An act of misfeasance is a positive wrong, and every employee, whether employed by a private person or a municipal corporation, owes a duty not to injure another by a negligent act of commission. It is the breach of this duty which the law imposes on all men that is involved, and the general obligation to injure no man by an act of misfeasance is neither increased nor diminished by the fact that the negligent party is an employee of a municipal corporation."
The reason for the rule that an employee of a municipality is liable for his own acts of misfeasance, as distinguished from the acts of nonfeasance by the municipality itself, is well stated in Rowley v. Cedar Rapids, 203 Iowa 1245, 212 N.W. 158, 53 A.L.R. 375. In that case the city's employee was looking after the business of the city, and plaintiff was struck and injured *Page 1185
by an automobile operated under the personal direction of such employee. Both the city and the employee filed demurrers to plaintiff's petition. Both demurrers were sustained. The ruling of the lower court in sustaining the employee's demurrer was reversed. In that case this court said, 203 Iowa 1245, l.c. 1250,212 N.W. 158, 160, 53 A.L.R. 375:
"If it should be conceded, as the demurrer assumed, that Kennedy was engaged in the performance of a governmental duty * * *, still we think the demurrer on his behalf was improperly sustained.
"We have held, it is true, that an agent who performs a governmental function on behalf of a county is no more responsible for negligence in so doing than the corporation for which he acts. Snethen v. Harrison County, 172 Iowa 81,152 N.W. 12; Gibson v. Sioux County, 183 Iowa 1006, 168 N.W. 80. In these cases, negligence was charged on the part of the members of the board of supervisors in respect to permitting various defective conditions to exist in a public highway. In great measure, the acts charged as negligence were acts of nonfeasance, and they all related to alleged negligence in respect to the condition of the highway and the things done or omitted in preparing it for use. In Wood v. Boone County, 153 Iowa 92, 133 N.W. 377, 39 L.R.A. (N.S.) 168, Ann. Cas. 1913d 1070, where it was said that it would be an anomalous doctrine that would exempt a corporation itself from liability for the doing of a lawful act in a negligent manner, on the ground of its compulsory agency in behalf of the public welfare, and at the same time affix liability upon the agent for precisely the same act, done under express authority, the act complained of was one of nonfeasance, — the failure to furnish relief to a pauper. We recognized arguendo that, if the agent undertook to furnish relief, he might be personally liable for a negligent performance, although the county would not. We think that these cases and the doctrine there announced have no application to the facts pleaded here. Aside from the distinction between a county and a city, which would perhaps not be controlling where the officer of a city was engaged in the performance of a governmental duty, there is a well recognized distinction between acts of nonfeasance and those of misfeasance, and also, we think, so far as the personal liability of the agent is concerned, between an act *Page 1186
of negligence which is committed while the agent or officer is engaged in the performance of an official duty, but which is otherwise unrelated to such duty, and the negligent performance of the duty itself. Could it be said that a member of the board of supervisors, when traveling in performance of his official duty to repair a highway, could escape personal liability for an injury negligently inflicted upon one whom he met on the way, because of the official character of his errand, although he would not be liable for a negligent performance of his mission to repair the highway? In Goold v. Saunders, 196 Iowa 380,194 N.W. 227, we said:
"`A public official may be guilty of negligence in the performance of official duties for which his official character gives him no immunity.'"
The precise question before us here was so recently passed upon by us in the case of Montanick v. McMillin, 225 Iowa 442,280 N.W. 608, that we are impelled to hold that our ruling herein is controlled by our ruling in that. As the reasons for this rule have been so exhaustively discussed and considered in the able opinion therein written by Justice Mitchell, we deem it unnecessary to pursue the discussion further here; but for a further discussion of this question, we make that case a part hereof by reference. We are not inclined to change the rule laid down therein, and adhere thereto.
For these reasons we are constrained to hold that the judgment of the lower court in sustaining the demurrer of defendant Kelly to plaintiff's petition must be and is hereby reversed. As hereinabove indicated, the ruling of the lower court sustaining the demurrers of the defendants, Keokuk County and its Board of Supervisors, is hereby affirmed. The judgment of the lower court is therefore hereby affirmed in part and reversed in part. — Affirmed in part, reversed in part.
SAGER, C.J., and DONEGAN, MITCHELL, STIGER, MILLER, and RICHARDS, JJ., concur.
ANDERSON, J., dissents.
HAMILTON, J., takes no part. *Page 1187 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430552/ | I agree with the opinion that the lower court was right in sustaining the demurrers of Keokuk County and the Board of Supervisors, but believe that the demurrer of the employee of the county, Kelly, should have been overruled.
In the majority opinion reliance is placed upon the case of Hibbs v. Independent School District, 218 Iowa 841, 251 N.W. 606. At the time that decision was rendered I was a member of this court, but I did not then and do not now agree with the holding in that case. In that case Mrs. Mary Wilson was the owner of the school bus and the driver of the bus at the time the plaintiff, a pupil in the Green Mountain rural school, was injured. The alleged negligence was the failure of the driver to close securely the door of the bus and an alleged defect in the latch of the door. The trial resulted in a directed verdict for the defendant, Independent School District, and a judgment against Mrs. Mary Wilson for $750. On appeal the judgment against Mrs. Mary Wilson was reversed, the court stating, 218 Iowa 841, at page 845, 251 N.W. 606, 608:
"Many cases are cited above to support the practically universally recognized rule that the exemption from liability in cases of this character applies as well to the school corporation, its officers, and, upon principle, it must be held to apply to its employees. Had the husband been driving the bus, it would have to be conceded that he, under the circumstances of this case, would be immune from liability. Appellant, with the knowledge and acquiescence of the school board, was performing the identical functions and rendering the same service as her husband would have rendered. If not technically an employee of the district, it is only because her husband, whose place she had taken, sustained a technical contractural relation thereto. No *Page 1178
case directly in point has come under our observation. The rule of nonliability exists because the functions being performed are for the common good of all without any special corporate benefit or profit. No distinction in principle can be made upon the basis of which the general rule of nonliability shall not be applied to the facts of this case."
Before proceeding with an analysis of this decision, it would be well to pause and see just where such a pronouncement of law will eventually lead. It is the writer's belief that this is the only Iowa case where the driver and owner of a motor vehicle has been excused for negligent operation of his vehicle. The mantle of protection of governmental function granted Mrs. Mary Wilson gave her complete immunity for negligent operation of her own school bus. If this be the law, then the owner and operator of a motor vehicle need no longer pay any attention to the law of the road, or traffic rules and regulations, if in such operation of his motor vehicle he is engaged in a governmental function. I do not believe that such a rule of law has any basis in reason or authority. In fact, the general rule that the employee of a municipal corporation is liable to a third person injured by his negligent act of misfeasance, was the law of Iowa until the decision in the Hibbs case. Probably the best statement of the law is contained in the case of Rowley v. City of Cedar Rapids,203 Iowa 1245, 1250, 212 N.W. 158, 160, 53 A.L.R. 375. Here the city councilman Kennedy was being driven in a city-owned automobile to the city hall to look after city business, and the plaintiff was struck by this automobile on the highway. Altho the demurrer of the City of Cedar Rapids was sustained and this ruling was affirmed by the supreme court, the ruling on the demurrer filed by councilman Kennedy which was also sustained by the lower court, was reversed. In that case the court said:
"With respect to the liability of the defendant Kennedy under the allegations of the petition, a somewhat different question is presented. It is not questioned but that the allegations were sufficient to show responsibility on his part for the alleged negligence of the driver of the car. The demurrer on his behalf raised only the question that, since it was alleged, as it was claimed, that Kennedy was in the performance of his official duty, and in the exercise of a governmental function of the city, *Page 1179
he was not liable for negligence. If it should be conceded, as the demurrer assumed, that Kennedy was engaged in the performance of a governmental duty in proceeding from one point to another on the city's business, still we think the demurrer on his behalf was improperly sustained.
"We have held, it is true, that an agent who performs a governmental function on behalf of a county is no more responsible for negligence in so doing than the corporation for which he acts. Snethen v. Harrison County, 172 Iowa 81,152 N.W. 12; Gibson v. Sioux County, 183 Iowa 1006, 168 N.W. 80. In these cases, negligence was charged on the part of the members of the board of supervisors in respect to permitting various defective conditions to exist in a public highway. In great measure, the acts charged as negligence were acts of nonfeasance, and they all related to alleged negligence in respect to the condition of the highway and the things done or omitted in preparing it for use. In Wood v. Boone County, 153 Iowa 92, 133 N.W. 377, 39 L.R.A. (N.S.) 168, Ann Cas. 1913d 1070, where it was said that it would be an anomalous doctrine that would exempt a corporation itself from liability for the doing of a lawful act in a negligent manner, on the ground of its compulsory agency in behalf of the public welfare, and at the same time affix liability upon the agent for precisely the same act, done under express authority, the act complained of was one of nonfeasance, the failure to furnish relief to a pauper. We recognized arguendo that, if the agent undertook to furnish relief, he might be personally liable for a negligent performance, although the county would not. We think that these cases and the doctrine there announced have no application to the facts pleaded here. Aside from the distinction between a county and a city, which would perhaps not be controlling where the officer of a city was engaged in the performance of a governmental duty, there is a well recognized distinction between acts of nonfeasance and those of misfeasance, and also, we think, so far as the personal liability of the agent is concerned, between an act of negligence which is committed while the agent or officer is engaged in the performance of an official duty, but which is otherwise unrelated to such duty, and the negligent performance of the duty itself. Could it be said that a member of the board of supervisors, when traveling in performance of his official duty to repair a highway, could escape personal liability for an injury negligently inflicted *Page 1180
upon one whom he met on the way, because of the official character of his errand, although he would not be liable for a negligent performance of his mission to repair the highway? In Goold v. Saunders, 196 Iowa 380, 194 N.W. 227, we said:
"`A public official may be guilty of negligence in the performance of official duties for which his official character gives him no immunity.'
"The Supreme Judicial Court of Massachusetts in Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367, 108 Am. St. Rep. 473, in a well considered opinion, in which authorities are extensively reviewed, said that the principle underlying the rule that exempts public officers from liability for negligence in the performance of public duties goes no further than to relieve them from liability for nonfeasance and for the misfeasance of their servants or agents, but that:
"`For a personal act of misfeasance, we are of opinion that a party should be held liable to one injured by it, as well when in the performance of a public duty as when otherwise engaged.'
"In Skerry v. Rich, 228 Mass. 462, 117 N. 824, it was said:
"`A public officer undoubtedly is liable for personal acts of misfeasance.'
"In Perkins v. Blauth, 163 Cal. 782, 127 P. 50, the court, while recognizing that municipal corporations are not liable for dereliction or remissness of municipal officers or agents in the performance of public or governmental functions of the city, said that the agent would be responsible for his tortious acts, although the municipality would not.
"In Florio v. Jersey City, 101 N.J. Law 535, 129 A. 470,40 A.L.R. 1353, it was held that the driver of a municipal fire truck was liable for injuries negligently inflicted by him in the performance of his duty, although the city was not liable. The court said:
"`We think a sound public policy requires that public officer and employees shall be held accountable for their negligent acts in the performance of their official duties, to those who suffer injury by reason of their misconduct. Public office or employment should not be made a shield to protect careless public officials from the consequences of their misfeasance in the performance of their public duties.'
"In Manwaring v. Geisler, 191 Ky. 532, 230 S.W. 918, *Page 1181
18 A.L.R. 192, where a police officer on a motor cycle struck and injured a child, the court said:
"`Nor is a peace officer exonerated from liability for an injury inflicted while in the discharge of official duties, on another, on the ground of public necessity, if the officer failed to exercise reasonable care for the protection of those whom he knew or by the exercise of reasonable judgment should have expected to be at the place of the injury, although he may not be criminally liable.'"
In the face of the decision in the Rowley case, and of the review of the authorities in Iowa and other jurisdictions contained in that case, it is difficult to see how the court in the Hibbs case could arrive at the conclusion it did.
An act of misfeasance is a positive wrong, and every employee, whether employed by a private person or a municipal corporation, owes a duty not to injure another by a negligent act of commission. It is the breach of this duty which the law imposes on all men that is involved and this general obligation to injure no man by a negligent act of misfeasance is neither increased nor diminished by the fact that the negligent party is an employee of a municipal corporation.
I would overrule the demurrer of the defendant Kelly.
OPINION ON REHEARING OCTOBER 25, 1938. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430555/ | This appeal concerns itself with rulings of the trial court (1) on plaintiff's motion to strike certain paragraphs from the answer of defendant Sorensen, and (2) on plaintiff's demurrer to the same subject-matter alleged in Counts 4 and 5 of the counterclaim.
A brief statement of the pleaded facts will make plain the issues involved. On February 26, 1919, the defendant Sorensen entered into a written contract with the plaintiff land company for the purchase of a 77-acre parcel of Texas land for $25,025, with payments in specified amounts on certain dates fixed by the contract. It was further provided that, upon the payment of the sums so specified, the vendee should receive a warranty deed of even date with the contract, and that the balance, of $6,000, should be carried by vendor's lien notes, secured by a deed of trust upon the described land. With the consideration or the manner of its payment this appeal is not concerned. The matters giving rise to the controversy find lodgment in two provisions of the contract with respect to the clearing and plowing of the land; and it may be observed that, on the date of the execution of this contract, but 17 acres were cleared and plowed, and that no additional land was then cleared. The contract provides:
"Should there be less than seventy-seven acres, difference to be allowed second party [defendant]. Enough more to be cleared and plowed on above land to amount to a total of forty acres by June 1, 1919. Balance of above land to be cleared by first party [plaintiff] for which second party is to pay $20 per acre by June 1, 1919."
Subsequently to the date of the contract, the following written agreement or instrument was executed: *Page 701
"May 16th, 1919
"Shelby County State Bank, Harlan, Iowa.
"Gentlemen:
"We have this day made settlement with Mr. Sorensen on the land that we sold him in Cameron County, Texas, with the exception that there are some back due taxes yet unpaid.
"On the land that we sold him there was a portion of it in cultivation and we agreed to clear and plow enough more of the land sold him to amount to 40 acres.
"We are handing you herewith $1,500 in Liberty Bonds, which you may hold in escrow until we furnish the tax receipt showing taxes all paid up to and including the year 1918 and drainage taxes and water assessments paid up to the date of Mr. Sorensen's contract, February 26th, 1919. After we furnish the above tax receipt and furnish satisfactory evidence that the clearing and plowing has been completed you are then to mail to the office at Kansas City, 410 Ridge Arcade Building, the bonds we are herewith handing you.
"South Texas Land Company, "Per F.G. Collins.
"I agree to the above conditions.
"Peter Sorensen.
"We acknowledge receipt of the above bonds.
"Shelby County State Bank. "Per H.P. Dowling."
Plaintiff predicates its petition on the foregoing instrument, and alleges a full performance of the contract of purchase, except the clearing and plowing of three and one-half acres of the land; that the defendant refuses to comply with the terms of the agreed settlement; and that, under instructions of the defendant Sorensen, the bank, as trustee of the parties hereto, refuses to act in the premises. Plaintiff therefore demands an accounting from the bank, and asks that the court ascertain the amount due from the defendant Sorensen.
In answer, the defendant admits the execution and delivery of the instrument of May 16, 1919, but denies that plaintiff hascleared and plowed enough of the land sold him to amount to 40 acres, and alleges that plaintiff has failed to clear 17 1/4 acres required to make the 40 acres which it agreed to clear; *Page 702
failed to plow 23 acres required to make the 40 acres; and has wholly failed to clear the 37 acres additional which the contract of February 26, 1919, required to be cleared. The motion to strike is directed to that portion of the answer relating to the clearing of the 37 acres, on the primary ground that the subject-matter of the original contract "was fully settled, merged in, and abrogated by, the agreement of May 16th." In Count 4 of the counterclaim, the same matter is alleged, on which damages are based for an amount representing the difference between the cost of clearing the said 37 acres, at $20 per acre, as per original contract, and $33 per acre, the actual cost of clearing to the defendant. In Count 5, defendant prays judgment in the sum of $200 for car fare and other expense incurred by him in performing the covenant with reference to clearing the land.
To Counts 4 and 5 of the counterclaim plaintiff's demurrer is directed. The trial court sustained the motion to strike, and also the demurrer as to the foregoing allegations; and from these rulings this appeal is taken. Two questions are presented: (1) Did the escrow agreement executed in connection with the delivery of the deed constitute a merger, waiver, or abrogation of the terms and conditions of the original contract of purchase? (2) Are the damages alleged in Count 5 of the counterclaim recoverable on any theory?
It is apparent that the contracting parties were dealing at arm's length, and no fraud, actual or constructive, is pleaded. May the defendant at this time insist that the terms of the original contract are alive, and inure to his benefit? Briefly summarized, the defendant Sorensen had a contract with plaintiff for the conveyance of certain real estate. This contract also contained defined stipulations in relation to clearing andplowing and clearing the land. The defendant, prior to the new arrangement as evidenced by the instrument of May 16th, was in a position to refuse to accept a deed until the performance of the original stipulations, which constituted conditions precedent. What was the meaning of the subsequent agreement? Clearly, the defendant elected to accept for his original contract a warranty deed, together with an agreed memorandum reciting that (1) a full settlement had been made; (2) certain taxes were to be paid; (3) the land should be cleared and plowed to *Page 703
the extent of 40 acres; and (4) an escrow of $1,500 in bonds should be held by the bank for the express purpose of securing the performance of the foregoing conditions. The two contracts are not consistent; nor is the one supplementary of the other. The new contract does express an entire agreement; and it is evident from an inspection of the terms thereof that the parties intended that the new contract should supersede the old. The fair intendment of the latter agreement is that the defendant would look after the clearing of the balance of the land, since he was originally obligated to pay a stipulated sum if performance was made by the plaintiff. When a subsequent contract completely covering the same subject-matter is made by the same parties to an earlier agreement, and the terms thereof are inconsistent with the earlier agreement, and intended to be substituted for it, a merger results; and the later contract becomes the final and only agreement between the parties on the subject. Defendant herein also accepted a deed in conformity to the executory contract to convey. Had this been done without the execution of the escrow agreement, the defendant might well insist that he should be permitted to stand on his answer and counterclaim. If a contract provides for the conveyance of real estate upon the payment of a certain sum, and gives to the purchaser certain rights collateral to and independent of the conveyance, the deed does not merge the collateral or independent agreements. Huxford v. Trustees forDiocese of Iowa, 193 Iowa 134; Carey v. Walker, 172 Iowa 236.
This is not the case at bar. The controlling fact is the subsequent agreement, which expressly stipulated the terms of the escrow, upon which terms the deed had been executed and accepted. This is sufficiently declarative of the intention of merger or waiver. In the absence of fraud or mistake, defendant was bound, as was plaintiff, by the terms of the subsequent agreement. With this view of the situation, it is clear that defendant was entitled to no damages predicated on Count 5 of his counterclaim. The trial court correctly ruled the motion to strike and the demurrer. This results in an affirmance of the case. — Affirmed.
FAVILLE, C.J., and STEVENS and VERMILION, JJ., concur. *Page 704 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430556/ | The question presented is whether section 682.23, Code, 1946, denies to the district court the power to authorize the investment of trust funds by a guardian in securities not mentioned in said section. Like the trial court we answer in the negative.
The guardian of the incompetent stated in his application that he has funds which are not producing an adequate income and should be reinvested to obtain a larger income for the benefit of the ward; all investments mentioned in section 682.23 at present yield a very low return which is insufficient to meet properly the needs of the ward; other investments not mentioned in said section would be sound and yield a substantially larger return; from his investigation the guardian believes it would be for the best interests of his ward to purchase the following stocks: (here are listed ten shares of preferred stocks in two corporations and twenty-five shares of common stocks in three corporations — a total of thirty-five shares in five well-known, long-established concerns). Attached to the application is a description of each of the five recommended issues.
A guardian ad litem for the incompetent was appointed who defended on the sole ground that Code section 682.23 prohibits the investment of funds by guardians in securities not designated in said section. The guardian ad litem admitted all statements of fact in the application. The trial court granted the application. Upon this appeal the guardian ad litem raises the same question presented below.
Section 682.23 provides:
"Authorized securities. All proposed investments of trust funds by fiduciaries shall first be reported to the court or a judge for approval and be approved and unless otherwise authorized ordirected by the court under authority of which he or it acts, or by the will, trust agreement, or other document which is the source of authority, a trustee, executor, administrator, or guardian shall invest all moneys received by such fiduciary, to be by him or it invested, in securities which at the time of the purchase thereof are included in one or more of the following classes:". (Here follow fourteen numbered paragraphs which designate bonds of the United States, federal land banks, states and municipalities and other investments.) *Page 1228
When introduced by the House Committee on Banks and Banking in the Forty-third General Assembly (1929) the original bill commenced with the portion italicized by us, "Unless otherwise authorized or directed by the court under authority of which he or it acts,". The requirements that all proposed investments be first reported to the court or judge for approval and be approved were inserted by way of two amendments to the bill. The original enactment contained the first paragraph quoted above followed by nine paragraphs designating nine different securities. The remaining five of the fourteen numbered paragraphs in section 682.23 were added from time to time since 1929.
The main contention of the guardian ad litem is that if the legislature intended the court could approve an investment not specifically mentioned in 682.23 there was no purpose in designating the different securities therein nor in adding to those first designated in 1929. The guardian relies upon the language in section 682.23 above italicized by us as a recognition of the power of the court to authorize investments not designated in the remainder of the section.
[1] There can be no question as to the principal rule of statutory construction relied upon by the guardian ad litem. If fairly possible a statute will not be construed so part of it is rendered superfluous. Effect should ordinarily be given to every provision. Moulton v. Iowa Employment Sec. Comm., 239 Iowa 1161, 1172, 34 N.W.2d 211, 216, and citations; Independent Sch. Dist. v. Iowa Employment Sec. Comm., 237 Iowa 1301, 1309,25 N.W.2d 491, 496, and citations.
[2] We think the guardian ad litem is asking us either to read out of the statute the clause we have italicized or to add a provision which greatly limits its meaning and that the construction for which he contends conflicts therewith. Of course we have no power to read the italicized language out of the statute nor to add thereto. Moulton v. Iowa Employment Sec. Comm., supra, and citations; 50 Am. Jur., Statutes, sections 231, 234.
[3] The italicized clause is plainly an exception or proviso which limits the application of the statute. See as having some bearing 43 Words and Phrases, Perm. Ed., 315, 316. The *Page 1229
fundamental rule for which the guardian ad litem contends that effect should be given all parts of a statute requires that effect be given a proviso when it can be done in accordance with recognized rules of construction. 50 Am. Jur., Statutes, section 440; 59 C.J., Statutes, section 639. See also Campbell v. Jackman Bros., 140 Iowa 475, 480, 481, 118 N.W. 755, 27 L.R.A., N.S., 288; State ex rel. Bedell v. Best, 225 Iowa 338, 280 N.W. 551.
[4] The guardian ad litem concedes trust funds need not be invested in securities designated in 682.23 if "otherwise authorized or directed by * * * will, trust agreement, or other document which is the source of authority * * *." He admits this is an exception to the requirement that trust funds be invested in the designated securities. We think the exception or proviso on which the guardian relies is just as effective as the one the guardian ad litem concedes. There is no basis for recognizing the one and repudiating the other. The requirement that trust funds be invested in the designated securities is also expressly made subject to the prior exception "unless otherwise authorized or directed by the court under authority of which he or it acts."
It has been suggested that section 682.23 permits the court to approve investments not therein designated only where "authorized or directed by the * * * will, trust agreement, or other document which is the source of authority." In other words, that the italicized exception in the statute is in every instance limited or qualified by the exception just quoted which follows it. In effect the suggestion is that the law contains only one exception.
[5] The suggestion cannot be adopted without either the elimination of the italicized proviso (in disregard of the rule that effect be given the entire statute) or the addition of a qualifying provision to the law which would change its plain meaning. We can do neither. The practical effect of adopting this suggestion would be to strike out the italicized proviso as applied to investments by guardians. A "will, trust agreement, or other document" is seldom, if ever, "the source of authority" of a guardian. On the contrary the court is the authority under which a guardian acts.
[6] Under our construction of 682.23 according to its plain *Page 1230
meaning the remaining fourteen paragraphs are not necessarily surplusage. Nor is there irreconcilable conflict between them and the exception on which the guardian relies. We are not called upon to determine what the legislature may have intended except insofar as its intent is expressed in the statute. We may say, however, that the legislature might well have intended to designate for the advice and guidance of fiduciaries and courts the investments it regarded as affording maximum safety without deeming it necessary to deny courts in all instances the power to authorize other investments if found to be safe and advantageous. If the legislature intended in all cases to restrict the court in the approval of investments to those mentioned in 682.23, it could easily have said so. This it did not do.
There can be no question as to the power of the court, if not prohibited by section 682.23, to approve investments by guardians which are shown to be safe and advantageous to the ward. Section668.9, made applicable to such guardianships as this by 670.1, provides:
"Guardians * * * must prosecute and defend for their wards, may employ counsel therefor, lease lands, loan money, and in all other respects manage their affairs, under proper orders of the court or a judge thereof."
We have frequently recognized the statute just quoted (substantially unchanged, so far as here applicable, since the Code of 1851) as the important broad provision governing the powers and duties of guardians to act under the supervision of the probate court. The making of the investments here in question is clearly an act of managing the affairs of the ward. If the legislature intended section 682.23 to limit the court in approving investments by guardians to those therein mentioned, such limitation should have been plainly stated.
Statutes in many states designate securities in which trustees may invest without limiting them to the securities designated. In other states the only proper investments are those specified by statute. Annotation 128 A.L.R. 968; Restatement of the Law, Trusts, section 227, comment n. Substantially the same argument made by the guardian ad litem — that it was idle for the legislature to designate securities for the investment *Page 1231
of trust funds if the designation was not exclusive — could be urged against all such statutes which are permissive and not mandatory.
[7] The guardian ad litem seeks to support his position by a recital in the preamble to chapter 307, Acts of Forty-ninth General Assembly (1941), amending subsection 5 of what is now 682.23, which he argues shows the legislative intent. The recital refers to a provision in the then existing subsection 5 as "restricting the opportunities for fiduciaries bound by thepresent law that limits them to investing in first real estate mortgages * * * not [to] exceed fifty percent (50%) of the value of the mortgaged property; * * *." (Italics added.)
[8] The recital, although properly to be considered, is entitled to little weight. Certainly it is not controlling. The recital does not purport to summarize the first paragraph of 682.23 previously quoted herein nor to negative the exception therein upon which the guardian relies. Further, courts are not bound by the mere construction one legislature may put upon the acts of a previous session. Hansen v. Iowa Employment Sec. Comm.,239 Iowa 1139, 1144, 34 N.W.2d 203, 206; Babbitt v. Alger,160 Iowa 361, 363, 141 N.W. 915.
[9] The construction of an existing statute is a judicial, not a legislative, function. An erroneous opinion of a law by the legislature does not alter it. The legislative intent that controls in the construction of a statute has reference to the legislature that enacted it, not a subsequent one. 50 Am. Jur., Statutes, section 337; 59 C.J., Statutes, section 612, page 1034. See also Slutts v. Dana, 138 Iowa 244, 250, 115 N.W. 1115.
[10] Much is said in argument by the guardian ad litem as to legislative intent. As we have indicated, the intent of the legislature which is controlling here is to be gathered from the statute itself. It is our duty to give this act the interpretation its language calls for and not to speculate as to probable legislative intent apart from the wording used. 50 Am. Jur., Statutes, section 227; 59 C.J., Statutes, section 569. See also Meredith Pub. Co. v. Iowa Employment Sec. Comm., 232 Iowa 666, 680, 6 N.W.2d 6, 14; Eysink v. Board, 229 Iowa 1240, 1244, 296 N.W. 376, 378, and citations.
The much quoted admonition of the late Justice OLIVER *Page 1232
WENDELL HOLMES may be repeated here: "We do not inquire what the legislature meant. We ask only what the statute means."
[11] Some of the argument for the guardian ad litem apparently springs from his belief that section 682.23 as construed by the trial court and by us is unwise because, it is said, courts are not experts on investments and for other reasons. Of course it is not our function to pass upon the merits, policy, wisdom or expediency of a statute. McGuire v. Chicago, B. Q.R. Co.,131 Iowa 340, 349, 108 N.W. 902, 33 L.R.A., N.S., 706, and citations. See also Merchants Supply Co. v. Iowa Employment Sec. Comm.,235 Iowa 372, 383, 384, 16 N.W.2d 572, 578, 579; Campbell v. Jackman Bros., supra, 140 Iowa 475, 480, 118 N.W. 755, 27 L.R.A., N.S., 288; 59 C.J., Statutes, section 564.
It is not for us to say what we think the legislature should have done but only what we think it has done by this statute. See 50 Am. Jur., Statutes, section 380. If further statutory provision is to be made for the investment of guardianship funds it should be enacted by the legislature and not by us under the guise of construing a law which states, in plain language, "* * * unless otherwise authorized or directed by the court * * * a * * * guardian shall invest all moneys * * * in securities * * * of the following classes:".
We understand the dissenting opinion takes the position that the proviso "unless otherwise authorized or directed by the court" means only that the court may refuse to approve an investment even though in a designated security. The guardian ad litem has not contended here or in the court below the quoted words have such meaning. To adopt this position would require a reversal on a contention not raised by a litigant.
The dissenting opinion, like the guardian ad litem, concedes an investment need not be confined to the designated securities where "otherwise authorized or directed * * * by the will, trust agreement, or other document." These words are given their usual and ordinary meaning. As previously indicated, we see no basis for not giving such meaning to the words "unless otherwise authorized or directed by the court." The *Page 1233
statute recognizes that the court as well as "the will, trust agreement, or other document" may authorize or direct otherwise.
[12] Of course there can be no question that all investments
must be approved by the court. The statute at the outset by an amendment to the original bill so provides in so many words. This necessarily implies the court may disapprove an investment even though in a designated security. The provision requiring approval would be worthless if it does not include the right to disapprove. To hold that the words "unless otherwise authorized or directed by the court" mean only that the court may disapprove an investment is to give them a strange and unusual meaning, not suggested by the guardian ad litem, that adds nothing to the express requirement of court approval. — Affirmed.
SMITH, C.J., and OLIVER, BLISS, WENNERSTRUM, and HAYS, JJ., concur.
HALE, MANTZ, and MULRONEY, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430557/ | I am unable to agree with the majority opinion. On an analysis of section 682.23, Code of 1946, it seems there need be no contradiction in its terms, nor is it necessarily ambiguous. But even if ambiguous it should be resolved in a different manner than proposed by such opinion.
The section provides first that all proposed investment of trust funds by fiduciaries shall first be reported to the court or a judge for approval and be approved. The fund must then be invested in one or more of fourteen specified classes unless otherwise authorized or directed as provided in the section. An exception may be on account of a will, trust agreement, or other document which is a source of authority. It may be for some other reason relative to the estate or trust fund. There might be a number of reasons why the court should decide that the investment should not be made at all, or should not be made in some form of the approved securities. The character of the trust, the length of time it has to run, or the character of the proposed investment, even if it came within one of the approved classes, might require that the court otherwise authorize or direct. There might be a number of reasons why the investment should not even be made at all, but if made and the proposed *Page 1234
investment does not come within one of the accepted classes, the fiduciary would have no right to invest nor the court to order an investment, except in one of the fourteen specified classes fixed by statute.
So construed there need be no ambiguity or contradiction in the statute. We are conforming to one of the principal rules in the interpretation of statutes in giving effect to all its parts. Otherwise we are overlooking the established rule that if it is fairly possible a statute will not be construed so that part of it is to be rendered superfluous, and the further rule that effect is to be given to every provision. The majority opinion does not dispute these rules and it is unnecessary to cite authority therefor.
The majority opinion calls attention to section 668.9 of the 1946 Code in regard to the duties of a guardian. We cannot see that this statute in any way relaxes the strictness of the provision we are considering. Guardians must perform these various duties for their wards and loan their money as required by this statute. This is not an extension of their powers, but, so far as loaning money is concerned, those powers are limited by the rigid provisions of section 682.23.
No one could contend that the interpretation of one legislature of the acts of another is controlling, but, contrary to the suggestion in the majority opinion, it would seem to be plain that if there was a contradiction or ambiguity in the statute that some action would have been taken long ago to clarify what the majority opinion seems to think is not clear. In examining the history of the statute we should not entirely disregard the effect of legislative construction or failure to amend. Nor can there be any dispute that in seeking the intent of the legislature, it is our duty to interpret the statute itself.
I am persuaded that in seeking an interpretation or construction of a statute some aid may be gained by considering other statutes relating to the same subject matter. An examination of a somewhat similar provision, section 672.14, shows that the strictness of the statute we have under consideration is somewhat relaxed regarding the investment of certain veterans' funds in some securities about which there can be no question, but it will be noticed that a further portion of the statute does *Page 1235
not alter, in any way, the provisions of the general section, 682.23, for the reason that it requires that all other investments will be under the order of court in securities authorized by section 682.23, with provisions for notice. This limitation indicates that as to these funds the legislature still holds these fourteen types of securities to be in the class of safe investments. There is also the rule, frequently stated, that where in the statute there are general and specific provisions, the general provisions are controlled by the specific provisions.
All lawyers are fully aware that the construction of an existing statute is a judicial and not a legislative function, as stated in the majority opinion. From the wording of the statute under consideration there can be no doubt as to the general as well as the specific intent of the legislature to safeguard investments made for the benefit of those under disability, or for the beneficiaries of trusts. This general intent should be kept in mind. The intent of the statute, taken as a whole, is to limit the power of the guardian or trustee and the court to investments which have the legislative sanction, and such investments are specified. The legislature itself has provided such safeguard. To follow the rules laid down is far from being judicial legislation. By the majority opinion we are placing a burden upon the district court which I think the legislature never intended.
I believe that a fair interpretation of the statute, applying the well-known and established rules of construction, is that the intent of the legislature, from the passage of the original act through all its amendments, has been to restrict the investments of those under the protection of the court. We know the object of this and similar statutes, the language in which they are framed evidently so holds, and our interpretation of the statute, fully warranted by its language, should be to give effect to that intent. I would reverse.
MANTZ and MULRONEY, JJ., join in this dissent. *Page 1236 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430558/ | On the 30th day of June, 1921, Albert E. Bunnell and Matie Bunnell, husband and wife, executed a mortgage to the Citizens Savings Bank of Avoca, Iowa, covering the north half of the southwest quarter and the southeast quarter of 1. REFORMATION the southwest quarter and the south half of the OF northwest quarter, all in Section 28, Township INSTRUMENTS: 77 north, Range 31 west of the 5th P.M., in mistake: Pottawattamie County, covering 200 omission of lands from mortgage- judgment creditors. *Page 1182
acres of land. It will be noted that this is a solid body of land, composed of the south half of the northwest quarter and all of the southwest quarter except the 40 acres in the southwest corner of the section. This mortgage was given to secure a series of notes aggregating $17,000, and drawing interest at the rate of 7 per cent per annum. These notes were payable to the Citizens Savings Bank of Avoca, Iowa. The mortgage was duly recorded on the 1st day of July, 1921.
On December 6, 1924, this mortgage and the notes were duly assigned to the plaintiff, Davis, appellee. Prior to the time of the execution of this mortgage, the Bunnells had given two mortgages on this 200-acre tract: one for $10,000, in favor of the Northwestern Mutual Life Insurance Company, and a second mortgage of $19,800, to the Citizens Savings Bank of Avoca, Iowa.
Sometime in 1919, Bunnell purchased the remaining 40 acres of the body of land, being the southwest quarter of the southwest quarter of Section 28, from his mother. The bank advanced him money to help him pay for this 40 acres. His mother received from him $4,000 for the deed, and $1,580 was paid to her as back rent.
About the time of the purchase of this 40 acres of land by Bunnell from his mother, Bunnell, mainly at the instance of the bank, set about to refinance his indebtedness, which involved securing a new and larger first mortgage and an extension of time on his indebtedness to the bank. It is claimed that an oral agreement was then entered into between Bunnell and the bank, by the terms of which the bank would assist Bunnell in securing an increased first mortgage, and would grant Bunnell an extension of time on his indebtedness to the bank, in consideration for which Bunnell was to give the bank a second mortgage for $17,000, to cover the entire block of land made up of the original 200 acres of land included in the second mortgage then held by the bank and the 40 acres recently purchased by Bunnell from his mother.
This refinancing was accomplished by procuring a $30,000 first mortgage in favor of the Lincoln Joint Stock Land Bank. In order to do this, the Citizens Savings Bank necessarily canceled its second mortgage then held on the 200 acres of land. The proceeds of the $30,000 mortgage were used, first, in the *Page 1183
payment of the Northwestern Mutual $10,000 mortgage, and the balance was used in canceling the second mortgage held by the bank on the 200 acres. At this time, Bunnell was indebted to the bank in further sums aggregating about $17,000. It appears that the oral agreement alleged to have been entered into by Bunnell and the bank for a mortgage on the entire 240 acres was not attempted to be carried out in detail until June 30, 1921, at which time Bunnell and his wife were called to the bank by one Meitzen, president of the bank, who there personally drew the mortgage in controversy, taking, as he says, the description therefor from the old second mortgage held by the bank on the 200 acres of land. It is claimed it was not discovered by either Bunnell or the bank that the mortgage in controversy did not include in the description the 40-acre tract, until sometime in April, 1925.
On June 27, 1925, the plaintiff, Davis, began this suit against the Bunnells as principal defendants, mortgagors, and the other defendants, who, between September, 1921, and November, 1923, had procured judgments against the Bunnells. It is claimed in the petition that, at the time of the execution of the mortgage, Albert Bunnell was the owner of the entire 240 acres; that the Bunnells were indebted to the bank, and that an oral agreement had been entered into between the bank and the Bunnells that the Bunnells were to execute and deliver to the said bank, in consideration for an extension of time, a mortgage on the entire 240 acres; that the omission of the 40 acres was a matter of mutual mistake of the parties. Plaintiff asked for judgment against the Bunnells for the sum of $20,000 (in round figures), with interest; for the reformation of the mortgage, and that it be decreed to convey the 40 acres; that the judgment be decreed to be a lien upon the entire 240 acres; and that a special execution issue against all of said real estate for the satisfaction of the judgment, and general execution issue for any unsatisfied balance; that the liens of the other defendants be declared to be junior and inferior to the said lien of the plaintiff.
On February 20, 1925, the plaintiff filed an amendment to the petition, alleging, in substance, that, prior to the execution of the mortgage in controversy, the Bunnells were indebted to the plaintiff, through his agent, the bank, for money loaned to them, including the sum of $4,000 loaned them to pay as purchase *Page 1184
money for the 40-acre tract omitted from the said mortgage; that the said defendants Bunnell needed and asked for more credit, at or about the time of the execution of said mortgage, and it was orally understood and agreed by and between the said bank, acting for the plaintiff, and the said Bunnells, that an extension of time, as represented by the notes, would be granted, upon condition that the said defendants would make and execute to said bank a mortgage upon the entire 240 acres; that it was intended by the defendants and by the said plaintiff, through his agent, the bank, to include the said 40-acre tract in the mortgage.
On the same day, February 20, 1925, the court rendered a decree against defaulting defendants, the Bunnells, and certain others of the judgment lien claimants. There was a judgment for $20,000 (in round figures) entered against the Bunnells, and, as against the defaulting defendants, the mortgage in controversy was reformed to convey the 40 acres, and it was decreed to be a lien on the whole 240 acres, and, as against said defaulting defendants, the mortgage was foreclosed.
Prior to that time, on February 16, 1925, the defendants H. Seiffert Lumber Company, Hetzel, and Stender, assignee, appeared and filed an answer. On February 17, 1925, Avoca Mercantile Company filed an answer; but later, an amended and substituted answer was filed by the Avoca Mercantile Company, on April 7, 1925. By this amended answer the Avoca Mercantile Company, after admitting the execution of the mortgage and the priority of the plaintiff's lien on the land described in the mortgage, denies all the other allegations, and for further answer alleges: First, that the plaintiff has a chattel mortgage lien upon other property of the defendants Bunnell, to secure the payment of the notes referred to in the mortgage, and that the property covered by both of said liens is more than sufficient to satisfy all of plaintiff's demands; second, an estoppel is pleaded, based upon the allegation that the Mercantile Company knew of the mortgage as recorded, covering the 200 acres, and knew that Bunnell owned the other 40 acres, and believed that said 40 acres would furnish security for its claim, and, relying thereon, it neglected and refrained from in any manner levying execution upon the personal property or other assets of the defendant Bunnell. *Page 1185
I. Did the trial court err in reforming the mortgage?
On the question of the agreement between the bank and the Bunnells, Meitzen, the president of the bank, was the only witness. The record shows in detail the history of the relations between the bank and the Bunnells, including many of the obligations of the Bunnells and the manner in which the same were secured by mortgages on the 200 acres of land. When the transaction in question arose, Bunnell had on his 200 acres of land a first mortgage for $10,000 to the Northwestern Mutual, and a second mortgage for $19,800 to the bank. He also owed the bank on open account, the exact amount of which is not clearly shown in the record. The time had arrived when Bunnell needed to borrow more money from the bank, and an extension of time on his then obligations to the bank. Meitzen testifies that the matter was gone over in detail between Bunnell and himself, and that finally it was orally agreed between the bank and Bunnell that, in consideration of assistance from the bank in procuring a larger first mortgage on the land and an extension of time by the bank on Bunnell's indebtedness to it, Bunnell would give a mortgage on the entire 240 acres to the bank, to cover a series of notes aggregating $17,000. The testimony shows without dispute that Meitzen, acting on behalf of the bank, first released the second mortgage of $19,800 then held by the bank, and also assisted Bunnell in securing a $30,000 loan from the Lincoln Joint Stock Land Bank; and notes were executed for $17,000, due on demand, with interest from June 30, 1921.
It appears that a considerable period of time, approximately a year and a half, elapsed between the time when the refinancing took place and the mortgage in controversy was executed. The delay is explained by reason of several causes, including the illness, at one time, of Bunnell, and, at another time, of his wife, and pressure of business on the part of the bank. Finally, on demand of Meitzen, and on June 30, 1921, Bunnell and his wife came to the bank. Meitzen prepared the mortgage. He took the description from the old second mortgage held by the bank against the Bunnells, which included only the 200 acres. The mortgage thus drawn was signed and executed by the Bunnells, and placed of record. Meitzen testified that the oral agreement for the mortgage provided for a mortgage on the 240 acres; that *Page 1186
he, in drawing the mortgage, intended to include in it the 240 acres; and that the 40-acre tract was omitted by mistake.
Neither of the Bunnells was a witness on the trial. The record shows that they were then at home on the farm, a short distance from the place of the trial. They had defaulted in the action. The mortgage, as to them, had been reformed and foreclosed. It is significant that the Bunnells defaulted to the action in which reformation of the instrument, to include the 40 acres, was asked.
According, then, to the undisputed evidence in the case, a mistake was made by the scrivener, acting for both the bank and the Bunnells, in drafting the mortgage. The proof on the question satisfies the requirements of the law, and the court rightfully reformed the instrument.
II. As to the estoppel claimed by the defendant the Avoca Mercantile Company, the record shows that it procured two judgments on September 21, 1921, approximately three months after the mortgage in controversy was executed. There 2. REFORMATION is no definite showing in the record as to when OF the goods were purchased from the Mercantile INSTRUMENTS: Company by the Bunnells. It is fair to assume estoppel: that the transactions took place before the insuffi- execution of the mortgage, and that there was no ciency. extension of credit to the Bunnells on the basis of his ownership of the 40 acres of land; in fact, it is not claimed that the goods were sold in reliance upon Bunnell's ownership of the 40. It is only claimed that the company refrained from pressing the collection of its judgments because it regarded the 40 acres as of ample value to satisfy the judgments. There were many other judgments on record against the Bunnells in the same county, secured about the time the Mercantile judgments were secured. The record shows that some investigations were made by representatives of the Mercantile Company concerning the collection of its judgments. They must have found a mortgage for $30,000 on the 240 acres, a second mortgage for $17,000 on the 200 acres, a chattel mortgage running to the bank, and many wholly uncollected judgments against the Bunnells. On the whole, we find no estoppel in the case. The defendants, judgment creditors, are not "purchasers," and therefore their rights can rise no higher than the rights of the defendant Bunnell. Norton, Jewett Busby v. Williams, *Page 1187 9 Iowa 528; Fletcher v. Kelly, 88 Iowa 475. See, also, Marker v.Davis, 200 Iowa 446; Magnesite Products Co. v. Bensmiller,207 Iowa 1303. An estoppel has not been proven. The oral agreement for the execution and delivery of a mortgage on the 240 acres, for a consideration, has been proven, in accordance with the requirements of law.
The case is — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430559/ | This case comes here on appeal from the judgment entered by the district court of Iowa in and for Cerro Gordo County. The defendant was charged, on information filed by the county attorney, with the crime of lewd, lascivious acts with a child under the age of sixteen years. He appeared in open court upon arraignment, entered a plea of guilty, and asked that judgment be pronounced at once. This was done. No evidence was taken before the trial court, and consequently the only facts appearing in the record before us are found in the minutes of the testimony attached to the county attorney's information. With this phase of the record we are not concerned.
Three propositions are stated by appellant upon which a reversal of the judgment is based: (1) That the information is not indorsed "a true information," as required by Section 13646, Code of 1924; (2) that the information filed by the county attorney is not verified by him, as required by Section 13649, Code of 1924; and (3) that the information does not show the approval or disapproval of the district judge indorsed thereon, as required by Section 12650, Code of 1924.
This appeal involves the law adjective, and not the substantive law governing the crime charged. A question of procedure is before us, and the disposition of the appeal must be determined by the statute. The three propositions relied upon by appellant may be resolved into one question: Did the failure of the defendant to demur to the information constitute a waiver of the rights now asserted by him? Even though an information, as in the instant case, may have been found defective upon demurrer, it is not so fatal upon its face as to be open to attack after trial and judgment. A failure to allege in the information the things which now constitute the basis of appellant's complaint is not a denial to a defendant of any constitutional right. The mere failure to recite these matters affirmatively in the information did not deprive the court of jurisdiction over the cause; and in the absence of a demurrer to the *Page 408
information, the sufficiency thereof cannot now be called into question. As stated, the ultimate question presented is whether the procedure established by the statute of Iowa can at this time, and in the first instance on appeal, be raised by a defendant.
The defects concerning which complaint is made were reviewable by a motion to set aside the information; but the Code provides that such a motion must be made "before a plea is entered by the accused," and that, if such a motion is not made before plea is entered, "the objection shall be deemed waived." Sections 13659 and 13660, Code of 1924. All that was done by the accused was voluntarily done by him. There was no duress or undue influence brought to bear, and the defendant was his own judge of the legal course of things in the instant matter.
A careful review of the brief record before us discloses no ground for reversal. Wherefore, the judgment entered is —Affirmed.
STEVENS, ARTHUR, and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430567/ | I. The electors of defendant Consolidated School District voted to issue schoolhouse bonds. The plaintiffs contend that the election was illegal because the special meeting of the board of directors at which the election was called was 1. SCHOOLS AND attended by only four of the five directors, and SCHOOL that written notice was required to be, but was DISTRICTS: not, given to the fifth member. The evidence meetings: shows that oral notice to him was given. It is special not claimed that, if such notice had been in meeting on writing, instead of oral, it would have been oral notice. insufficient. The point here is merely that written notice was required, under Sections 4221 and 4355, Code of 1924. The point is ruled adversely to plaintiffs' contention in Gallagher v. School Township, 173 Iowa 610; Independent Sch.Dist. v. Gwinn, 178 Iowa 145. See, also, Rafferty v. TownCouncil, 180 Iowa 1391. It is urged further that the notice was insufficient because given by the secretary, and not by the president of the board. The evidence is that the president directed the secretary to give notice of the meeting. Section 4355 reads:
"The president * * * shall * * * call a meeting of the board which shall call such election * * *"
The point is without merit.
II. Plaintiff's further contention is that, in order to give the board jurisdiction to call the election, they must determine that the petition was signed by the requisite number of electors, and they did not do this. The corrected minutes 2. SCHOOLS AND of the meeting of the board recited that the SCHOOL board examined and considered the petition, "and DISTRICTS: found the same to be legal and sufficient in all bonds: legal respects and to bear the requisite number of sufficiency signatures as provided by law." The correctness of petition. of the minutes is not assailed. It is said that the board had no record from which they could make such a determination. There is no requirement that they keep or base their finding upon any record of the electors of the district. There is no merit in this contention.
III. Plaintiffs say that the proposition submitted to the electors did not comply with Section 4356, Code of 1924, but do not argue the point. This is also without merit. Gallagher v.School Township, 173 Iowa 610. *Page 223
IV. The plaintiffs in another action (not parties to this), brought for the same purpose, have filed in this appeal motion to dismiss or to set aside the submission because of the consolidation of the two actions and the failure 3. APPEAL AND of the plaintiffs in the present action to give ERROR: notice of the appeal to the plaintiffs in that dismissal: action. No fraud or collusion is claimed. The motion by so-called consolidation was merely a hearing of non-party. both cases at the same time, on the same evidence. The movants were not made parties to this action, nor were the plaintiffs here made parties there. The movants were given until June 20, 1927, to file additional abstracts and arguments herein. They have failed to take advantage of this privilege. The motion is overruled. — Affirmed.
EVANS, C.J., and De GRAFF, ALBERT, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430568/ | On the first day of September, 1925, the defendants Ed Leclere and Maye L. Leclere executed unto the plaintiff their promissory note in the sum of $20,000, secured by mortgage upon certain real estate situated in Linn County, Iowa, and the plaintiff in this action asks judgment on the same against them. They also ask personal judgment against the defendant Harcourt Land Company, based upon an assumption clause contained in a warranty deed alleged to have been executed and delivered by the owner of the real estate to said *Page 1038
land company. The assumption clause in said deed is as follows:
"Except a first mortgage of $20,000, which grantee assumes and agrees to pay when due, together with all interest from and after March 1, 1926."
The plaintiff also asks a foreclosure of the mortgage against all defendants.
The defendant Harcourt Land Company in its answer alleges various defenses, which may be summarized as follows: A denial of acceptance of the deed containing the assumption clause; a denial of any agreement to assume payment of the mortgage; a plea that any payments to be made upon the mortgage were conditional upon the making of payments by the grantor in the deed, according to contract; a plea of want of consideration for the assumption agreement; a plea of non-performance of the contract by the grantor in the deed. Trial upon said issues was had to the court, and at the close of plaintiff's evidence, the defendant Harcourt Land Company made motion, based upon various grounds, to dismiss the cause of action, so far as any claim is made to any personal judgment against the Harcourt Land Company, and so far as the issue of personal liability on the part of said company is concerned. The defendant introduced no testimony.
The following order and judgment was made of record:
"Now, to wit, January 26th, 1927, this cause comes on for trial to the court, Hon. John T. Moffit, presiding judge, O.L. Schluter appearing as attorney of record for the plaintiff, and Crissman Linville and Johnson, Donnelly Lynch appearing as attorneys of record for defendants; and the court, having examined the pleadings, finds that the issues have been made up and joined in this cause of action, whereupon the opening statement of counsel is made. The plaintiff introduced evidence, and rests. The defendant introduces evidence, and rests. The defendant, upon application therefor, is given ten days to file a brief. Plaintiff is given ten days following to file brief. At 10:30 A.M., cause submitted.
"And afterwards, and on the same day, the plaintiff dismisses his cause of action, without prejudice. The court makes this entry by request of Mr. Haas at 2 P.M., in the absence of Mr. Lynch as [or] his client. *Page 1039
"And now, to wit, January 26th, 1927, at 4:15 P.M., Mr. Lynch appears and objects to plaintiff's dismissal without prejudice.
"And now, to wit, January 26, 1927, it still being the same day, the motion of plaintiff to dismiss without prejudice having been presented to the court, and the court being fully advised and satisfied in the premises, sustains same. Defendant Harcourt Land Company excepts. Judgment is therefore hereby rendered against the plaintiff for costs, assessed by the clerk, and found to be in the sum of $30.90."
Thereafter, the plaintiff filed a motion to correct and amend the record. It was resisted by the Harcourt Land Company, and upon the hearing of said motion and the resistance thereto, the following order with reference thereto was granted:
"Now, to wit, April 27, 1927, the motion to correct and amend the record filed by plaintiff and the resistance thereto filed by the defendant Harcourt Land Company comes on for hearing, Hon. John T. Moffit, presiding judge, and Otto L. Schluter and C.J. Haas appearing for plaintiff, and Johnson, Donnelly Lynch appearing for the defendant Harcourt Land Company; and the court, having examined the pleadings, court records, and the court calendar, and having heard arguments of counsel, finds that the record of proceedings as it appears in the District Court Record of Linn County, Iowa, Vol. 63, pages 534 and 535, in order to correctly show how and when said record was made, should be corrected by adding thereto the following: `The words "at 10:30 A.M. cause submitted" were not made and entered by the court until after the court had made the entry dismissing plaintiff's cause of action without prejudice, and that, at the time when said entry dismissing plaintiff's cause of action without prejudice was entered, the words "at 10:30 A.M. cause submitted" did not appear on the record. The entry dismissing plaintiff's cause of action without prejudice was made at 2:00 P.M., and the entry "at 10:30 A.M. cause submitted" was made at 4:15 P.M. of the same day.'
"And the clerk is hereby ordered to correct the record accordingly.
"To all of which defendant Harcourt Land Company excepts." *Page 1040
The defendant Harcourt Land Company has appealed from the ruling and order of the trial court permitting the plaintiff to dismiss his cause without prejudice, and from the judgment of dismissal of the cause without prejudice, all of which it claims occurred after the final submission of the case to the court.
It is claimed by the appellee that there had not been a final submission of the cause to the court at the time of his dismissal of the cause of action. It is further contended by the appellee that the dismissal was completed the moment the court made an entry of dismissal, and that whatever entries were made thereafter by the trial court, including the appellant's exception, were done after the court had lost jurisdiction, and that the appellant's objection and exception have no legal operation; that no exceptions were properly saved; and that the only way that the defendant could attack the voluntary dismissal of the plaintiff entered of record is by a motion, under the provisions of Section 12787 et seq. of the Code of 1924.
We find it unnecessary to consider all the propositions raised by the appellee; for, if the cause was not finally submitted to the court at the time of the dismissal of the action by the appellee, then the appellant has no ground for complaint as to the dismissal. The appellant contends that there had been a final submission of the case to the court prior to the dismissal of the cause of action by the plaintiff, and relies upon Section 11562, Code of 1924, and the following cases: Mansfield v. Wilkerson,26 Iowa 482; Dunn v. Wolf, 81 Iowa 688; McArthur v. Schultz, 78 Iowa 364; Carney Brothers v. Reed, 117 Iowa 508. It is provided by the aforesaid section of the Code that an action may be dismissed by the plaintiff before the final submission of the case to the jury, or by the court, when the trial is by the court, and that such dismissal shall be without prejudice to a future action. The aforesaid authorities cited by the appellant hold that, after there has been a final submission of the case to the court or to the jury, it is then too late for the plaintiff to dismiss his cause of action. Therefore, the question to be determined is, Had there been a final submission of the case to the court before the dismissal of plaintiff's cause of action?
It will be observed from the foregoing record that the *Page 1041
words "at 10:30 A.M. cause submitted" were, at 4:15 P.M., written in the space where they appear of record, and that the plaintiff, at 2 P.M., dismissed his cause of action without prejudice. It further appears from the foregoing record that the defendant, upon its own application, was given ten days to file a brief, and that appellee was given ten days following to file a brief. The statute prohibiting the dismissal of an action after final submission of the case is in derogation of the common law, and it will not be extended so as to prohibit the dismissal of a case not falling within its express terms. 18 Corpus Juris 1155.
"Within the rule that the plaintiff cannot dismiss or take a nonsuit after final submission, it has been said that `a submission is final only when nothing remains to be done to render it complete.'" 18 Corpus Juris 1156.
See, also, Morrisey v. Chicago N.W.R. Co., 80 Iowa 314. In the Morrisey case it is said:
"A submission is final only when nothing remains to be done to render it complete. Submission to a jury is not final until the last words of the charge are read, and the jury directed to consider their verdict."
In Houston's Admr. v. Thompson's Admr., 87 Mo. App. 63, the court, in discussing this proposition, said:
"The power to allow a dismissal ends, under our Code, and most others, when the case is finally submitted for determination; but this is held to have happened so as to defeat the right only when nothing remains to be done to render it complete."
It is obvious that the appellant desired time in which to file a written brief, and that the case had not been submitted to the court for its determination, for the record states, "The defendant, upon application therefor, is given ten days to file a brief," and the appellee was given the ten days following to file a brief.
It is manifest that there was something yet to be done before the submission was complete, and that was the filing of the respective briefs by the contending parties, within the time allowed by the court; and the case could not be considered as finally submitted until the briefs had been filed, or the time for the filing of the same had expired. If, instead of the court's *Page 1042
allowing time for the filing of briefs, he had done the equivalent thereto, and fixed the time when the attorneys should appear and argue the case orally upon the questions of law involved in the case, it could not be successfully contended that there had been a final submission of the case to the court. The case was not submitted without argument, for the parties asked and were granted time in which to file briefs.
If the court had granted time for the attorneys to appear and argue the case orally, certainly there would have been no final submission of the case, and the plaintiff could voluntarily dismiss the same before the arrival of the time fixed. The effect of granting time to file briefs was that the case was not finally submitted for determination by the court until the court could have the briefs for the consideration of the matters before him, or until the expiration of the time granted for the filing of same. A court can determine the merits of a case at any time after its submission; but in the instant case, the court could not have determined the same until the expiration of the time granted for filing of briefs. Therefore, there had not been a final submission of the case to the court for its determination. The cause was only submitted in so far as the taking of evidence was concerned, but was open for what aid the parties could give the court as to the law applicable to the evidence which had been previously received. The stipulation that the defendant, on its application, is given ten days to file a brief negatives the claim of appellant that the case was finally submitted on that day. There can be but one final submission of the case. If appellant's contention be true, it would have no right to file a brief for the consideration of the court, although the stipulation gives it ten days' time in which to do so. If the appellant's contention be true, the court could have determined the case on the merits that day, although the court had granted ten days' time in which to file a brief.
Without further discussion, we hold that there had not been a final submission of the case to the court, and that, under our statutory law, the appellee was within his rights in dismissing the case without prejudice at the time when it was done.
Our conclusion upon the foregoing proposition makes it unnecessary to consider and discuss the other propositions *Page 1043
urged by appellee in his brief and argument. We find no error on the part of the trial court, and its rulings and judgment of which appellant complains are affirmed. — Affirmed.
EVANS, C.J., and STEVENS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430570/ | 1. Corporations: ISSUANCE OF STOCK FOR LESS THAN PAR: LIABILITY OF THE HOLDERS FOR UNPAID BALANCE: THE RULE DISCUSSED AND APPLIED. The directors of a corporation have no power to issue stock for less than its par value, or with an understanding that the unpaid balance shall not be called for; and to do so is a fraud upon the law, the other stockholders and the creditors of the company, and the transaction will not be sustained, but the persons so securing the stock will be liable for the unpaid balance in an action by a creditor of the corporation, under §§ 1082 and 1084 of the Code. And it is not necessary to such liability that the holder of the stock so issued should have subscribed for the same, for his acceptance of the stock, with knowledge of the facts, is sufficient to create the liability. Nor is the rule different where the corporation is insolvent, and its stock of, at most, doubtful value, and the stock is issued to a creditor in settlement of a demand which it had no other means of paying. Accordingly, in this case, where a railway company was indebted to a construction company in the sum of $70,000, which it was unable to pay, and, in satisfaction of the debt, it issued to the construction company certificates of stock of the face value of $350,000, which shares were distributed among the members of the construction *Page 470
company, held that such members were stockholders, the same as if they had subscribed for the stock and paid 20 per cent thereon, and that they were liable, under the statute, to a creditor of the corporation, to the extent of the unpaid 80 per cent of the par value of the stock, — the $70,000 debt, paid by the stock issued, being only 20 per cent of the par value of the $350,000 of stock so issued.
ROTHROCK, C.J., and SEEVERS J., dissenting.
This case is now before us upon a rehearing. It was submitted originally with the case of Louisa County National Bank against the same defendants. Both plaintiffs and defendants in the two actions appealed. The judgments were affirmed upon the plaintiffs' appeals, and reversed upon the defendants'. The plaintiff, Jackson, filed a petition for a rehearing, and a rehearing was granted. The questions presented upon the rehearing pertain to the correctness of the decision of this court upon the defendants' appeal. The action is brought under sections 1082 and 1084 of the Code. The plaintiff is a judgment creditor of the Burlington, Cedar Rapids Minnesota Railway Co. The object of the action is to obtain an execution against stockholders of the company. It was brought originally against George Greene, as well as against the defendant Traer. Since then George Greene has died, and the defendant, Win. Greene, has been appointed administrator of his estate. The action was brought upon the theory that Traer and George Greene were at the time of the commencement of the action, stockholders in the debtor company, and that eighty per cent of their stock remained unpaid. The defendants for answer filed a general denial, and pleaded that the plaintiff's judgment had been paid.
The court below held that Traer and George Greene were, at the commencement of the action, stockholders, and that *Page 471
eighty per cent of their stock remained unpaid, and rendered judgment for the plaintiff for such balance as it found due, after applying a certain payment. This court held, when the case was before us upon the first hearing, that the stock should be treated as fully paid, the writer hereof dissenting.
The principal question discussed upon the rehearing pertains to the correctness of the ruling that the stock should be treated as fully paid. But, as we have reached a conclusion different from that reached by the majority upon the first hearing, it becomes necessary to consider some other questions.
I. Were Traer and George Greene owners of the stock in question at the time of the commencement of this action? We think that they were. It is not denied that they were such owners at one time. But the defendants contend that the evidence shows that they sold and transferred their stock to one Blair.
The evidence shows clearly enough a transfer, but we think it also shows a retransfer to Traer and Greene. One Brock-smith, formerly auditor of the railroad company, was called as a witness. He testified in these words: "I was auditor February 10, 1875, and I remember distinctly that John I. Blair received stock so as to have a majority, to give him a controlling power over the property, so far as stock would give it, or else he would not accept the presidency. Judge Greene invited him to be president. Greene, Traer, and others of the construction company, held stock issued to them till February 10, 1875, when it formed part of several thousand shares given in trust to John I. Blair, and Blair held it until sometime after the reorganization of the railway company, when it reverted again into the hands of the original owners. So far as George Greene is concerned, it was re-issued to him June 14, 1877, in certificate No. 2116, and to Traer in certificate No. 2177, dated June 18, 1877." The action was commenced in May, 1878. The stock referred to by the witness, Brocksmith, appears to be the stock now in controversy, and his testimony is sufficient to support the finding of the court below. *Page 472
II. Upon the question as to whether the plaintiff's judgment had been paid, we have to say that we think that the finding of the court below was as favorable to the defendants as they could properly ask. The evidence shows that the property of the debtor railway company was sold at a fore-closure sale, and purchased by the Burlington, Cedar Rapids Northern Railway Co.; that plaintiff intervened in the fore-closure action and claimed a lien upon the property; and the purchasing company, in order to obtain a release of the plaintiff's claim of a lien upon the property, issued to him fifty shares of its own stock, it being expressly provided that the release should not affect the plaintiff's claim against the debtor company. The court below found that the receipt of the fifty shares of stock by the plaintiff operated as a payment to the extent of the par value of the stock, and rendered judgment only for the balance. This, we think, is all that the defendants could properly claim. There is no pretense that the stock was worth more than par.
It is, to be sure, contended that the plaintiff was fully secured by his lien, and that by releasing the same he released the defendants, or estopped himself from proceeding against them. But we think that it is not shown that the plaintiff had a lien by which lien was fully secured. Besides, the defendants did not plead the release. Whether a creditor of a corporation can proceed, under the statute cited, against stockholders, holders, regardless of any security which the creditor may hold, or may have held, is a question discussed by counsel, but which, as we view the case, it is not necessary to determine.
III. We come now to consider whether it is true, as the plaintiff alleges, that Traer and George Greene paid only twenty cents on a dollar for the stock issued to them in the debtor company, and, if so, whether the balance, to-wit, eighty per cent, can be treated as unpaid, and as constituting a trust find, to be resorted to by corporate creditors, in the absence of other corporate property.
The fact appears to be that prior to the time the plaintiff's *Page 473
claim accrued against the railway company the company had already become indebted to a certain construction company, in which Traer and George Greene were large stockholders. This indebtedness, it is shown, amounted to seventy thousand dollars, and was more, as we infer, than the company could easily discharge by a cash payment. But what the circumstances of the company were it is not important to inquire, because the question as to whether it was rich or poor is wholly foreign to the legal question presented for our determination.
Whatever were the circumstances of the debtor railway company, it offered to issue to the construction company stock of the par value of three hundred and fifty thousand dollars in discharge of the seventy thousand dollars of indebtedness. This offer was accepted, and the stock was issued accordingly; and, having been issued, it was distributed at once among the stockholders in proportion to their respective interests as stockholders in the claim of seventy thousand dollars; and Traer received one hundred and forty shares, and George Greene nine hundred and ten shares. The resolution under which the stock was issued is in these words: "Resolved that, in the adjustment and liquidation of claims against the company, the treasurer be authorized to use the stock of the company, provided, not less than twenty per cent of the par value can be realized for the purpose." Certificates of stock appear to have been issued to Traer and George Greene in the ordinary way. What, if anything, they showed, or what, if anything, the books of the company showed, in regard to the payment for the stock, does not appear. The company seems to have proceeded upon the theory that stock which had never been issued had a substantial existence as an asset of the company, as stock would have which had been issued and paid for, and afterwards acquired by the company.
But this was, in fact, a new issue, and, being such, the books should have shown twenty per cent paid, and only that, whatever might have been the understanding as to whether the *Page 474
remaining eighty per cent should be called for or not. Possibly the books do show the transaction as it was, but it is not important as to whether they do or not. The question is as to whether the defendants can be sustained upon any theory of the transaction which they have propounded.
Precisely what their theory is, it is not easy to state, because it does not seem to be very well defined. Sometimes they seem to rely upon the rule, recognized in some cases, that, where a subscriber to stock pays for it in property at an over estimated, but honestly estimated, value, a court will not go behind the transaction. We are not asked in words to say that the defendant and the railway company might have honestly estimated twenty cents to be worth one hundred cents, but, unless we could say that, it is manifest that the principle enunciated has no application. We think it safe to say that there was never any pretense, honest or dishonest, that this stock was really fully paid. There might have been an understanding that dividends should be made upon it to the same amount as upon other stock which was fully paid, and also an understanding standing that the remaining eighty per cent should not be called for. We think that this was the understanding in fact. We do not suppose that it was expressed in so many words. The parties seem to have misconceived the nature of unissued stock. But if the defendants can escape liability, it must be because there was virtually an agreement that the remaining eighty per cent should not be called for. The question then arises as to whether stockholders can be allowed to set up such an agreement to enable themselves to escape the liability which the statute contemplates. In our opinion they cannot. The theory of the statute is that the amount of stock issued constitutes the basis of the company's credit. It is not absolutely necessary that more than a small per cent shall be paid upon the issued stock. It is not desirable that it should be paid for faster than the actual needs of the company require. The balance constitutes a reserved fund, to be called in at stated times and in successive installments, or in the discretion *Page 475
cretion of the managing officers. But, however the same may be called in, provision therefor must be made in the articles of incorporation, and notice of the provision must be published to the world, that persons having occasion to deal with the company may do so intelligently. The corporate books should show the amount of stock issued, and who the holders of the stock are, and the amount paid. Code, § 1078. Any rule which should have the effect to enable incorporated companies to make a show of capital and responsibility which they do not in fact possess, and there by invite credit to which they are not entitled, would work untold mischief. Such a rule would not only tend to enable irresponsible corporations to entrap the unwary, but would tend to impair the credit of responsible corporations. Whenever it comes to be understood that it is legal for a corporation to do business upon a fictitious basis, suspicion will necessarily fasten to some extent upon all corporations. The statute provides that the amount of capital stock subscribed, and the amount of capital actually paid in, must be kept posted in the principal place of business, and be subject to public inspection. Code, § 1077. It also provides that an execution against the company may be levied upon the private property of stockholders to the amount of that portion of their stock which remains unpaid. Code, § 1082. If a corporation can legally issue stock as fully paid, which is not fully paid, or, what is the same thing in effect, receive part payment, and issue the stock with an agreement that the balance shall never be called for, then the posted statement, when stock is so issued, would, though conforming to the law, been actually deceptive upon one point. The statute assumes that the public is entitled to know, not only how much capital has been actually paid in, but how much has been subscribed. But, under the rule contended for, subscriptions to stock beyond what is actually paid in cannot be relied upon, because there may be a secret agreement having the effect to nullify what would otherwise be the stockholder's legal obligation. *Page 476
We cannot think that the law provides for a posted statement to serve as a guide to the public, and at the same time provides that the statement may contain a substantial falsehood upon a material point. It is not important to inquire what posted statement was made in relation to the stock in question, whether it showed the stock fully paid, or one-fifth paid, as the fact really was. The posted statement could not affect the defendants' liability. But it is manifest that, if it is lawful to issue stock as fully paid when it is not fully paid, or with an agreement that full payment shall not be called for, and stock is so issued, then the posted statement should show the specific agreement. But, as no such showing is provided for, we conclude that such agreement is not contemplated, and is not, therefore, to be regarded as allowable.
The true rule undoubtedly is that shares should be paid for in full, or be subject to be paid for in full, either in money, or in property the value of which is estimated in good faith to be equal to the par value of the shares. Whoever subscribes for stock in an incorporated company has a right to assume that all subscribers, whether prior or subsequent, become such upon substantially the same basis. The statute requires that the articles of incorporation shall show definitely the amount of capital stock authorized. This is important for several reasons. Subscribers have a right to judge for themselves whether the amount authorized will be sufficient for the successful prosecution of the business. Creditors also have the same rights. But, if the rule shall be adopted that directors may issue stock upon the receipt of any sum, no matter how small, and provide that the stock shall be treated as fully paid, or, what is the same thing, that the remainder of the par value shall never be called for, no person could safely subscribe for stock in an incorporated company. However well conceived the enterprise might be, and however judiciously the company might be organized, it would involve nothing but peril, if the directors at their pleasure can be allowed to fritter away the authorized capital of the company, and curtail *Page 477
its resourses in the mode in question. In Green's Brice's Ultra Vires, 143, the author says: "The sale of stock in a corporation by the directors at a less rate than the price fixed by the charter is a fraud upon the law and upon the stockholders." Citing Sturges v. Stetson, 1 Biss., 246; Fosdick v. Sturges.
Id., 255; Mann v. Cooke, 20 Conn., 178; Fisk v. R.R. Co., 53 Barb., 513; O'Brien v. Same, Id., 568. In Taylor on Corporations, section 545, the author, speaking of payment for stock in property, says: "If the property received is grossly unequal in value to the par value of the shares, the subscriber who received the shares originally, or his subsequent transferee with notice of the circumstances, may be compelled to make up the difference in value, in a suit brought by or on behalf of the persons injured thereby," citing Bailey v. Pittsburg Connellsville Gas, Coal Coke Co., 69 Pa. St., 334; Boynton v.Hatch, 47 N.Y., 225; Tallmadge v. Fishkill Iron Co., 4 Barb., 382. The same doctrine was held by this court in Osgood Mossv. King, 42 Lowa, 478. Property known to be less than the par value of the stock was received in full payment. This court condemned the transaction. Mr. Justice DAY, in the opinion, said: "The intention of the law is, that property or a fund equal to the capital stock of the company, or so much of it as the articles of incorporation require to be subscribed previous to commencing business, shall, in fact, exist, and be subject to the debts of the corporation." The case at bar, in our opinion, is not different in any material respect. If the officers of a company cannot be allowed to receive in full payment for stock property known to be of less value than the par value of the stock, it requires no demonstration to show that they cannot be allowed to receive in money less than the par value. The case at bar differs only in this, that the value of what was received was certain, and did not need to be established by evidence.
It should be observed that the agreement that the remaining eighty per cent should not be called for was not an agreement *Page 478
to which all the stockholders of the railway company were parties. Had it been, there would be more ground for contending that the agreement was valid, and some support might be found in the English decisions for such position. But, even if such had been the case, the defendant's position could not be supported by the decisions in this country. In Scovill v. Thayer,105 U.S., 143, stock had been issued to all the stockholders, with an understanding on the part of all, that only ten cents on a dollar should be called for. WOOD, J., after referring to the English decisions, says: "But the doctrine of this court is that such a contract, though binding on the company, is a fraud in law on its creditors, which they can set aside; that, when their rights intervene, and their claims are to be satisfied, the stockholders can be required to pay their stock in full." In Union Mut. LifeIns. Co. v. Frear Stone Man'f Co., 97 Ill., 537, a similar doctrine was held. The court said: "The secret agreement of the shareholders in this case must be regarded as void, certainly as to creditors of the corporation without notice." In Rider v.Morrison, 54 Md., 429, the directors had undertaken to release a subscriber from his unpaid subscription, but the court held that unpaid subscription to the stock of a corporation is a trust fund, to be held by the corporation for the benefit of creditors, and that the directors had no power to release a subscriber to the prejudice of creditors. In Jewell v. Rock River Paper Co.,101 Ill., 57, there was a private understanding with some of the stockholders at the time of their subscription that full payment should not be called for. It was held that such private understanding could not be sustained. In Wetherbee v. Baker,35 N.J. Eq., 501, it was held that the officers of a corporation are the trustees of its subscriptions to its stock, and hold them as a trust fund, and that the trust cannot be defeated by any device short of actual payment in good faith. In Crawford v. Rohrer,59 Md., 599, it was held that any arrangement among stockholders by which stock is but nominally paid for, whether in money *Page 479
or property, will not be regarded as a valid payment as against creditors. In BAD TEXT 11 Mo. App., 550, it was held that, while stock might be issued to a creditor in payment of indebtedness, and issued as full paid stock, yet, if it was issued for less that its par value, a creditor could recover the difference. In Morawetz on Corporations, section 374, the author says: "The issue of paid up shares at less than their par value is not alone a fraud upon the creditors; it is a fraud upon every member who has contributed his full proportion," citing the same cases cited in Green's Brice's Ultra Vires. Again, the same author says, in section 589: "The law is settled that every device by which the stockholders of a corporation seek to discharge themselves from liability to pay their stock subscriptions in full will be treated as a fraud upon creditors, and may be set aside if the company should afterwards become insolvent. Thus it has been held that a release executed by a corporation to its stockholders, or simulated payment of the stock subscriptions and return of the money to the subscribers in the shape of a loan, will not be allowed to defeat the just expectations of creditors; and a resolution that the shares issued by a corporation shall be deemed paid up shares, although unanimously adopted in a corporate meeting, is equally insufficient to effect its purpose;" citing Upton v.Tribilcock, 91 U.S., 45; Upton v. Hansbrough, 3 Biss., 417;Sawyer v. Hoag, 17 Wall., 610; Slee v. Bloom, 19 Johns., 456;Sagory v. Dubois, 3 Sand'f. Ch., 466; Osgood v. King,42 Iowa, 478; Burnham v. N.W. Ins. Co., 36 Id., 632; Mann v.Cooke, 20 Conn., 178; Pickering v. Templeton, 2 Mo. App., 424;Skrainka v. Allen, 7 Id., 434; Chouteau v. Dean, Id., 210;Gill v. Balis, 72 Mo:, 424; Woodfork v. Union Bank, 3 Coldw., 488.
It is contended, however, that it does not appear that George Greene and Traer became stockholders in pursuance of any subscription to the stock, and that the authorities respecting the liability of stockholders to pay in full for stock are for this reason not applicable. *Page 480
It may be conceded that it does not appear that these stockholders entered into a written contract of subscription. It seems probable that they became stockholders simply by the acceptance of the stock, in question. That a person may become a stockholder in this way is not denied, and could not be properly. The question presented, then, is, as to what are the liabilities of a stockholder who becomes such without any subscription. Does he, by reason simply of the acceptance of stock, become liable to pay for it the price fixed therefore in the articles of incorporation? In our opinion he does. The principle involved has been repeatedly decided. See Nulton v. Clayton, 54 Iowa, 425. In that case it did not appear that there was any express promise by the defendant to pay for the stock, but this court held that he could not, for that reason, escape liability; following Spearv. Crawford, 14 Wend., 20; Hartford New Haven R. Co. v.Kennedy, 12 Conn., 499; Renssellaer N.W. Plank R. Co. v.Barton, 16 N.Y., 457; Small v. Herkimer Manufacturing Co.,2 N.Y., 330; Dayton v. Borst, 31 Id., 435; Hartford New HavenR. Co. v. Croswell, 5 Hill, 383. The doctrine of the cases is, that the liability to pay for stock the price fixed by the articles of incorporation does not necessarily exist by express contract, but may arise by implication of law out of the mere relation of stockholder.
It is probably true that, if no stock has been issued to, and accepted by, the person sought to be charged, there should be, in order to bind him, a written subscription. Pittsburgh Connellsville R. Co. v. Clarke, 29 Pa. St., 146. But that need be only an agreement to take stock and need not contain any promise to pay for it. See authorities above cited. An agreement to take stock, when in writing and accepted by the company, creates the relation of stockholder. The issuance of a certificate in such case is not necessary. See Taylor on Corporations, section 511, and authorities cited. But where the person sought to be charged has already taken the stock by an acceptance of certificates, the necessity for a written agreement *Page 481
ment to take stock is superseded. The relation of stockholder exists beyond controversy. Whenever this relation exists, the law determines the rights and liabilities of the stockholders. We have seen no case which recognizes a difference between those stockholders who become such in pursuance of a written agreement, and those who become such by the mere acceptance of stock issued to them. To hold, then, that where there is an agreement in writing to take stock, even though it is not taken, it must be paid for as contemplated in the articles of incorporation, and that it need not be thus paid for if taken without such agreement, would be to make a distinction for which we find no warrant in the decisions, and for which there is certainly none in principle.
It is undisputed that a mere transferee of stock not fully paid becomes liable to pay the balance, unless the stock has been issued as fully paid, and he has acquired the same in ignorance that it was not fully paid in fact. The liability of a transferee does not arise by reason of an express contract with the company. His liability is imposed by law, as arising by implication out of the relation of stockholder. It would be strange if there were not the same implication where a person takes stock directly from the company, though he does so only by oral agreement. He is not the less a stock-holder, and is not entitled to less rights as a stockholder. There is no reason why his rights should be disproportionately greater than his burdens.
No one, we think, in this state, thus far, when desiring to estimate the responsibility of a corporation, has thought of inquiring further in respect to its issued stock than was necessary to ascertain the amount issued. If we should hold the rule contended for, the amount of stock issued would not of itself furnish any indication in regard to the responsibility of the company. Whoever should desire to estimate the responsibility of a given corporation would need to ascertain all the agreements, written and oral, open and secret, under which the stock had been issued. *Page 482
We are aware that a corporation which commences to incur the hazards of business with its stock only partly taken, may find itself in a condition which would render it impossible for it to dispose of its stock at par. Whenever a corporation enters upon business which its resources do not justify, it is guilty of an irregularity. But that is no reason why it should be allowed to relieve itself by perpetrating another irregularity, and one which the law denominates a fraud.
The true theory is that the capital stock of a corporation is fixed with reference to its supposed largest needs, to be all subscribed, and to be paid for in cash at once, or to be called in from time to time, in successive installments, as the actual needs of the corporation may require. Whenever a corporation has imprudently commenced business, and incurred hazards, with a partial and insufficient amount of stock taken, and can dispose of no more stock at par, such corporation is ordinarily a source of danger to the public, and, when such, the sooner it is wound up the better. The courts certainly should not aid it to prolong its existence by methods which the statute does not contemplate.
The defendants rely upon Phelan v. Hazard, 5 Dill., 45. But that is not a case where stock had been issued as fully paid, when there was no pretense that it had been fully paid in fact. Property had been taken in payment, and, as we infer, as a payment of the full par value. The court refused to presume fraud, and said: "While the contract stands unimpeached, the court, even where the rights of creditors are involved, will treat that as payment which the parties have agreed should be payment." But in the case at bar the contract does not stand unimpeached, unless twenty cents can honestly be estimated as worth one hundred cents, or unless stock can be issued as fully paid when there is no pretense that it is fully paid in fact. Some other cases are cited by the defendants, most of which fall substantially under the rule in Phelan v. Hazard, and have no application to the case at bar. *Page 483
The case of New Albany v. Burke, 11 Wall., 96, has been cited, but we have to say, upon a careful examination of the case, that we do not discover anything in it which appears to us to be inconsistent with the view which we have expressed.
The case of Van Cott v. Van Brunt, 82 N.Y., 535, might, upon a cursory examination, be thought to support the defendant's position, and we have to say that it would seem that it does, if it holds what is claimed for it, and what some text writers seem to think that it does. But the opinion is not clear. There are expressions in it which indicate strongly that the stock was not issued as fully paid. If it was not, then the decision has no application as authority in the case at bar. One of the expressions referred to is in these words: "In view of the facts presented, no sufficient reason appears why the stock held by Van Brunt, and not subscribed by him, should be treated and regarded as full paid up stock. It was evidently intended by the parties that it should not." But, conceding that the case holds what the defendants claim that it does, we do not think, in view of our statute, that we should be justified in following it. Besides, we observe that the correctness of the opinion has not passed unchallenged. In Morawetz on Corporations, section 589, note, the author, assuming that the case holds that stock may be issued as fully paid for less than its par value, says: "It is submitted that this decision is supported neither by reason nor authority."
One position taken by the defendants remains to be noticed, and that is, that the stock issued as fully paid was entirely worthless. In our opinion the worthlessness of the stock would not enable the defendants to escape the statutory liability. If the stock was worthless, as the defendants claim, there was so much the greater reason why the stockholders should not hold themselves out under false pretenses. If the stock was worthless, and the contract by which it was issued was based upon that theory, as we understand the defendants' counsel to claim, it seems to us that the conduct of Traer and Greene was without a shadow of excuse. They must have *Page 484
had a motive altogether independent of the value of the stock, and it is difficult to see how that motive could have been other than a corrupt one.
They were directors, it appears, in the railway company. Immediately upon the issue of the $350,000 of stock, they proceeded to make a transfer to John I. Blair, to induce him to become the president of the company, by giving him a controlling interest. Now, if the company was insolvent and the stock worthless, as the defendants claim, the plan must, we think, have been, to put a mere semblance of life into the company, and invite credit to which they knew it was not entitled. We know, indeed, that the company did invite credit to which it was not entitled, and that one of the persons who became creditors was this plaintiff.
We trust the motives of Traer and Greene were more honorable than they would seem to be upon the theory of the defendants' counsel. We are inclined to think that they regarded the stock as of some value, and hoped, too, that the company would be able to pay its debts, and that something would be saved to themselves beyond such debts. With this view, it is only necessary for us to say that the stock which they agreed should be treated as fully paid cannot be so treated in a proceeding by creditors, under the statute, to enforce a liability for the unpaid balance. We think that the opinion heretofore filed should not be adhered to, and that the judgment below must be
AFFIRMED. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211996/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ALVIN MOJICA, )
)
Appellant, )
)
v. ) Case No. 2D14-855
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 10, 2016.
Appeal from the Circuit Court for Pasco
County; William Webb, Judge.
Michael Ufferman of Michael Ufferman Law
Firm, P.A., Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Katherine Coombs Cline,
Assistant Attorney General, Tampa, for
Appellee.
LUCAS, Judge.
Mr. Alvin Mojica appeals his conviction and sentence for robbery. We
affirm Mr. Mojica's conviction without comment. However, Mr. Mojica's judgment and
sentencing scoresheet contain scrivener's errors. Additionally, Mr. Mojica's judgment
includes three improperly imposed costs. Accordingly, we must reverse and remand for
the circuit court to correct these errors.
The State concedes that Mr. Mojica's judgment contains a scrivener's
error in that his judgment states he was convicted of a first-degree felony. On remand,
the trial court shall enter an amended judgment showing that Mr. Mojica was convicted
of a second-degree felony. See Balmori v. State, 924 So. 2d 7, 7-8 (Fla. 2d DCA 2005).
The State also concedes that Mr. Mojica's scoresheet incorrectly indicates that his case
was resolved through a plea bargain. On remand, the State shall submit an amended
scoresheet showing that Mr. Mojica was tried and convicted by a jury. See Drayton v.
State, 89 So. 3d 287, 287-88 (Fla. 1st DCA 2012).
The State also concedes that the trial court erred when it imposed a
$125.72 fine and $6.28 surcharge under sections 775.083(1) and 938.04, Florida
Statutes (2012). Before imposing a fine and surcharge under these statutes, a trial
court must orally announce its intent to do so and identify the statutory authority
underlying the fine and surcharge. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA
1995). The court must also notify the defendant of his or her right to a hearing to
contest the amount. Id. Here, the trial court failed to follow this procedure, and so the
fine and surcharge from Mr. Mojica's judgment must be stricken. See Cruz v. State, 830
So. 2d 892, 892-93 (Fla. 2d DCA 2002); Nix v. State, 84 So. 3d 424, 425-26 (Fla. 1st
DCA 2012).
Finally, with respect to the imposition of the indigent legal assistant
assessment, the State argues that the $200 assessed against Mr. Mojica was proper
under section 938.29. However, as set forth in that statute, any indigent legal assistant
-2-
assessment over the mandatory minimum fee of $100 is discretionary. See Harmon v.
State, 160 So. 3d 939, 939-40 (Fla. 5th DCA 2015). A trial court must, therefore, notify
a defendant of his or her right to contest the imposition of an assessment above $100.
Id. Here, the trial court improperly imposed this assessment in an amount over $100
without first providing Mr. Mojica notice of his right to contest the amount. That was
error. See Nash v. State, 958 So. 2d 471, 471-72 (Fla. 2d DCA 2007).
On remand, the trial court shall enter a new judgment and sentence and
may, if it so decides, reimpose the fine, surcharge, and assessment after providing
notice to Mr. Mojica and following the appropriate procedure. See Harmon, 160 So. 3d
at 940; Nix, 84 So. 3d at 426. Alternatively, if the trial court decides not to reimpose the
fine, surcharge, or assessment, it may enter a corrected judgment and sentence striking
the fine and surcharge and imposing a $100 minimum assessment,1 consistent with this
opinion. See Mills v. State, 177 So. 3d 984, 986-87 (Fla. 1st DCA 2015); Harmon, 160
So. 3d at 940; Nix, 84 So. 3d at 426 n.2.
Affirmed in part, reversed in part, and remanded with instructions.
SILBERMAN and BADALAMENTI, JJ., Concur.
1
We note that prior to 2008, section 938.29(1)(a) did not include a
mandatory $100 assessment, but left the imposition of any legal assistance assessment
entirely at the discretion of the trial court. Cf. Swift v. State, 53 So. 3d 394, 395 (Fla. 2d
DCA 2011) (observing that under the 2007 version of section 938.29(1)(a) the
defendant would only be liable for the assessment if the trial court pronounced it at
sentencing and informed the defendant of the right to contest the amount at a hearing).
-3- | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3212002/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
D.L.S., a child, )
)
Appellant, )
)
v. ) Case No. 2D14-5216
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 10, 2016.
Appeal from the Circuit Court for County;
Hillsborough County, Rex M. Barbas,
Judge.
Howard L. Dimmig, II, Public Defender, and
Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa, for
Appellee.
LaROSE, Judge.
D.L.S., a juvenile placed on probation, appeals the withhold of
adjudication of delinquency and the denial of his motion for dismissal. See Fla. R. Juv.
P. 8.110(k). The State charged D.L.S. with obstruction of an officer without violence.
See § 843.02, Fla. Stat. (2014). We have jurisdiction. See Fla. R. App. P. 9.145(b)(1).
The trial court erred in denying D.L.S.'s motion for dismissal. Consequently, we reverse
the withhold of adjudication and vacate the order of probation.
A Tampa police officer was dispatched to a disturbance at Belmont
Heights. When he arrived, he saw several teenagers outside yelling profanities. D.L.S.
was part of this group. The officer tried to disperse the crowd. D.L.S. told the crowd
that they did not have to listen to the officer. The officer summoned D.L.S., but D.L.S.
walked away. The officer continued to tell D.L.S. to stop. The officer pursued D.L.S.
and detained him a few blocks away.
We review the denial of a juvenile's motion for dismissal de novo. E.A.B.
v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003). "If the State did not present sufficient
evidence to establish a prima facie case of the crime charged . . . dismissal is proper."
Id.
To prove the charges against D.L.S., the State had to show that the officer
was engaged in the lawful execution of a legal duty and that D.L.S.'s action obstructed
the exercise of that duty. See Francis v. State, 736 So. 2d 97, 98-99 (Fla. 4th DCA
1999). Words alone rarely, if ever, rise to the level of an obstruction unless the officer is
executing process on a person, legally detaining a person, or asking for assistance with
an ongoing emergency. D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995); R.E.D. v.
State, 903 So. 2d 206, 207 (Fla. 3d DCA 2004).
No one disputes that the officer was responding to a disturbance. He
testified, however, that he was not detaining anybody when he summoned D.L.S. to
stop. He was not executing process, nor was he seeking assistance with an ongoing
emergency. Under those circumstances, we are hard pressed to conclude that D.L.S.'s
words obstructed the officer. See D.G., 661 So. 2d at 76.
-2-
To the extent that the State argues that the officer wanted to detain D.L.S.
for investigatory purposes, "the State is required to show that the officer had a
reasonable suspicion that the detainee was committing a crime." C.N. v. State, 49 So.
3d 831, 833 (Fla. 2d DCA 2010); A.R. v. State, 127 So. 3d 650, 654 (Fla. 4th DCA
2013). "[T]he State must establish that the defendant fled from the officer with
knowledge of the officer's intent to detain him and that the officer was justified in making
the detention based on a founded suspicion that the defendant was engaged in criminal
activity." E.A.B., 851 So. 2d at 311. Even if the officer was engaged in the lawful
performance of a legal duty—dispersing a crowd—he had no founded suspicion to stop
or arrest D.L.S. Thus, because "the arrest itself was unlawful, a prosecution for
resisting arrest without violence under section 843.02, must also fail." Johnson v. State,
395 So. 2d 594, 596 (Fla. 2d DCA 1981); Jay v. State, 731 So. 2d 774, 776 (Fla. 4th
DCA 1999) (holding that the attempted arrest was illegal so the defendant was free to
resist such an arrest without violence).
D.L.S. was not committing a crime by telling the crowd that they could
ignore the officer. There is no evidence that D.L.S.'s comments instigated any reaction
by the crowd. "When an individual runs away from officers who lack the authority to
stop and detain him, that individual is not unlawfully opposing or obstructing officers in
the lawful execution of a legal duty." A.R., 127 So. 3d at 654.
The trial court's denial of D.L.S.'s motion for dismissal was error. Although
D.L.S.'s "conduct was the type of verbal harassment that, while understandably
annoying to any reasonable police officer, does not rise to the level of obstruction
necessary to permit a conviction that is not violative of First Amendment principles."
D.A.W. v. State, 945 So. 2d 624, 625 (Fla. 2d DCA 2006).
-3-
Reversed; probation order vacated.
WALLACE and BADALAMENTI, JJ., Concur.
-4- | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211021/ | 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
A15-1518
Sharon M. Nash,
Relator,
vs.
Douglas Animal Hospital, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed May 23, 2016
Reversed
Stauber, Judge
Department of Employment and Economic Development
File No. 33635442-3
Sharon M. Nash, Coon Rapids, Minnesota (pro se relator)
Michael C. Glover, Kalina, Wills, Gisvold & Clark, Minneapolis, Minnesota (for
respondent employer)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent Department)
Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Stauber,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Relator challenges the determination that she was discharged for employment
misconduct, arguing that her statement that a pet owner could waive a pet vaccination
should not have disqualified her from receiving unemployment benefits. Because
relator’s statement constituted an isolated minor policy infraction, relator was eligible to
receive unemployment benefits. We therefore reverse.
FACTS
Relator Sharon Nash was employed by Respondent Douglas Animal Hospital, Inc.
(DAH) as a veterinarian technician from February 11, 2015 to May 9, 2015. On May 9,
the 89th day of Nash’s 90-day probationary period, hospital manager Melissa Wimsett
claims to have overheard Nash suggesting to a client that it was not necessary to have the
client’s dog vaccinated for the leptospirosis bacteria. Nash was discharged from her
employment within an hour because her statement to the client violated Dr. Heather
Douglas’s veterinary protocol for pet vaccinations and violated DAH’s policy that
veterinary technicians may advise clients only under the direction of Dr. Douglas.
Nash sought unemployment benefits and was found eligible. DAH appealed, and
the case was heard by an unemployment law judge (ULJ). At the hearing, Wimsett
testified on behalf of DAH, although no evidence of her qualifications to testify about
veterinary science matters was offered.1 She stated that Nash
1
Wimsett’s June 18, 2015 letter to respondent Minnesota Department of Employment
and Economic Development (DEED) is signed “Melissa Wimsett, MBA.”
2
advised a client that the leptospirosis vaccination was
not needed for their pets and our hospital protocol says
otherwise. The decision to tell a client that a vaccine is
not needed is only to be made with direction of a
veterinarian. She did not do such and therefore violated
our hospital vaccine policy.
Wimsett further testified that the leptospirosis bacteria “is spread in standing water by
wildlife” and can be passed from infected pets to humans. Wimsett also said that the
Minnesota Veterinary Medical Board mandates that only veterinarians may give
veterinary advice and that veterinary employees may do so only under the direction of a
veterinarian. Wimsett conceded that it is part of a technician’s duty to “go into exam
rooms and discuss vaccines.” The ULJ asked Wimsett whether it is a common practice
for a veterinary technician to explain the risks of vaccines to clients, and she answered,
“It depends on the type of vaccine. If the client asks, absolutely.” Wimsett testified that
Nash was aware of this policy.
During her testimony, Nash vehemently denied advising any client that the
leptospirosis vaccine was unnecessary. She stated that it was her job to explain to clients
vaccines that are offered at DAH and why they are given. She stated that she educated
clients on the source of leptospirosis and identified which dogs are most at risk. She also
said that, after clients receive this information, they must decide whether to accept or
decline a particular vaccine. She also explained that “[m]any clients . . . are averse to
having lots of different vaccines on the same day,” and that “this specific vaccine is not
required like [the] rabies [vaccine] would be required, and is more specifically used for
dogs who would have access to stagnant water and wildlife.” In materials sent to DEED,
3
Nash said that she had 25 years of experience as a veterinary technician. Nash also
testified that “it’s not up to me to decide if [the leptospirosis vaccine is] needed or not.”
After making credibility findings in favor of Wimsett, the ULJ determined that
Nash had told a client that the client’s dog did not need the leptospirosis vaccine and that
this action constituted employment misconduct. The ULJ noted that, even though Nash
was discharged for a single incident of misconduct, her “behavior [was] sufficiently
serious to rise to the level of employment misconduct.” On Nash’s motion for
reconsideration, the ULJ affirmed its decision. This certiorari appeal followed.
DECISION
This court may affirm, remand, or reverse or modify the ULJ’s decision if relator’s
substantial rights were prejudiced because the findings, inferences, conclusion, or
decision are unsupported by substantial evidence in view of the entire record. Minn. Stat.
§ 268.105, subd. 7(d)(5) (Supp. 2015). An employee discharged for employment
misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1)
(2014). “Employment misconduct means any intentional, negligent, or indifferent
conduct, on the job or off the job that displays clearly: (1) a serious violation of the
standards of behavior the employer has the right to reasonably expect of the employee; or
(2) a substantial lack of concern for the employment.” Id., subd. 6(a)(1)–(2) (2014).
Whether an employee committed employment misconduct presents a mixed question of
law and fact. Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008),
review denied (Minn. Oct. 1, 2008). Whether an employee committed a particular act is a
question of fact, which this court reviews “in the light most favorable to the [ULJ’s]
4
decision.” Id. Whether that act constitutes employment misconduct is a question of law,
which this court reviews de novo. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315
(Minn. 2011).
“An employer has a right to expect that its employees will abide by reasonable
instructions and directions.” Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn.
App. 2004), review denied (Minn. Mar. 30, 2004). “[W]hat is reasonable will vary
according to the circumstances of each case.” Id. (quotation omitted). “As a general
rule, refusing to abide by an employer’s reasonable policies and requests amounts to
disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.
2002).
I. Credibility Determinations
Contrary to the facts found by the ULJ, relator argues that Wimsett never
overheard her “violat[e] [the] vaccination protocol,” and that she was told at the time of
her discharge only that her position was being terminated. But “[c]redibility
determinations are the exclusive province of the ULJ and will not be disturbed on
appeal.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006).
Wimsett testified that she overheard relator giving her opinion on whether a client
should vaccinate her dog; relator denied making any such statement. Wimsett also
explained, contrary to relator’s assertion that she was told at the time of her discharge
only that her position was being eliminated, that relator “had asked for the reason why
she was discharged and then interrupted Dr. Douglas by saying that she must have done
something really awful. At which point there was no further conversation . . . .” Wimsett
5
testified that if relator had requested a reason for the discharge, “we could have easily
provided that to [her].” The ULJ gave reasons for crediting Wimsett’s testimony,
including that Wimsett’s testimony was “detailed and specific, and described the more
likely series of events.” The ULJ also gave reasons for not crediting relator’s testimony,
including that relator’s testimony was “self-serving” and “less plausible.” On this record,
we have no grounds for reversing the ULJ’s credibility determinations.
II. Single-Incident Factor
The unemployment statute requires a ULJ to consider whether an employee’s
conduct arose from a single incident in determining whether the conduct amounted to
misconduct for purposes of the employee’s entitlement to unemployment compensation.
Minn. Stat. § 268.095, subd. 6(c) (2014).2 Specifically, the statute provides: “If the
conduct for which the applicant was discharged involved only a single incident, that is an
important fact that must be considered in deciding whether the conduct rises to the level
of employment misconduct . . . .” Id.
DAH had a policy that required technicians to follow “Wellness and Vaccination
Protocols” for dogs. Dr. Douglas implemented a lengthy protocol of required annual
procedures and vaccines for dogs, including annual dog teeth cleaning after the age of
two. The protocol for the leptospirosis vaccine for dogs is “[l]epto combo annually for
all breeds.” For dogs seven months to six years of age, DAH’s full protocol includes:
Wellness exam annually
2
The unemployment compensation statute formerly included a more strongly worded
single-incident exception for misconduct dismissals, but was amended in 2009 to the
present version. 2009 Minn. Laws ch. 15, § 9, at 47-48.
6
Microchip
DA2PP annually, then every 3 years
Lepto combo annually for all breeds
Lyme annually
Bordetella annually
Rabies annually, then every 3 years
Fecal annually
Deworming annually
4Dx annually
Heartworm prevention monthly year-round
Flea/Tick prevention monthly year round with Frontline or
oral Merial product
Dental cleaning at 2 years of age, then annually.
The ULJ found that relator’s statement to the client “seriously violated the
employer’s reasonable expectations.” But the record clearly shows that it was relator’s
job to introduce and explain to clients the vaccines used by Dr. Douglas and the reasons
for giving them, and that relator’s statement may have amounted to only a minor
unintentional infraction. Even Wimsett conceded that it was part of a technician’s duty to
“go into exam rooms and discuss vaccines.”
The record does not include facts to support the basis for requiring a dog to be
given the leptospirosis vaccine. Under Minnesota law, the only vaccine mandated for
dogs is the rabies vaccine. Minn. Stat. § 346.51 (2014) (“An owner or custodian of a dog
which does not have an appropriate antirabies vaccination and which bites or otherwise
exposes a person to rabies virus may be penalized under section 346.53 [petty
misdemeanor].”). And DAH has not provided evidence, statutory or otherwise, requiring
annual leptospirosis vaccinations. But in the June 18, 2015 letter to DEED, Wimsett
stated that relator’s conduct amounted to “tremendous negligence” that left Douglas
7
“liable,” and was contrary to a DAH policy that was “mandated by applicable law.” With
regard to legally mandated vaccines, this statement is unsupported. The fact that the
leptospirosis vaccine is not statutorily required undercuts Wimsett’s testimony regarding
the seriousness of relator’s conduct.
Wimsett also made a passing reference in her testimony to a Minnesota Veterinary
Board mandate that only veterinarians may give veterinary advice, but the record does
not show that relator violated this mandate. Wimsett, who has no apparent training in
veterinary science, could not and did not testify to establish what acts constitute giving
veterinary advice. Yet the record includes the letter signed by Wimsett, in which she
states without citation that “[t]he Minnesota Veterinary Board Practice Act is very clear
that only a licensed veterinarian may diagnose, treat or prescribe.” There is no evidence
that relator’s comments constitute “diagnosing, treating, or prescribing.”
Relator was discharged on the 89th day of her probationary period, and within an
hour of discussing a vaccine with a client. Because DAH failed to offer any evidence to
establish the scientific or statutory basis for requiring the leptospirosis vaccine, we can
only conclude that relator’s single incident of suggesting that a client need not vaccinate
her dog was not sufficiently adverse to DAH’s interests to constitute employment
misconduct. See Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006) (ruling
as a matter of law that an employee’s single instance of violating employer’s cash-
register policy did not constitute employment misconduct when there was no evidence
that the employee’s act had a significant adverse impact on the employer). On this
record, we also cannot conclude that relator’s comment was ill-conceived or even
8
contrary to DAH’s business interests. Because we reverse, we decline to address
relator’s argument that her conduct was excused under the good-faith exception to the
unemployment statute.
Reversed.
9 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430571/ | I believe the foregoing opinion to be radically and fundamentally wrong, and for that reason I cannot allow it to pass without expressing my dissent. The opinion on the original submission of the cause was concurred in by four members of the court; and, although it is true that the case has been elaborately argued upon the rehearing, there has not been a single additional reason adduced why the decision should be other than that *Page 485
already given in the opinion heretofore filed. I say this with all the printed arguments before me, and, to show that I am correct in the statement, I quote from the original opinion as follows:
"As we understand the position of counsel for plaintiffs, they concede that a corporation may, as between itself and one to whom it is indebted, make a valid disposition of its stock, and issue full paid certificates of stock for such consideration as may be agreed upon by the contracting parties. But it is claimed this cannot be done to the prejudice of the creditors of the corporation, and it is urged that the mere showing that the stock held by defendants was issued to them in payment of a debt due them at the rate of twenty cents on the dollar renders the defendants liable to the creditors for the remaining eighty cents on the dollar. On the other hand, it is contended by counsel for defendants that, in the absence of fraud, such a transaction is valid between the parties, and, if entered into in good faith, cannot be impeached by creditors of the corporation.
"In the case of Phelan v. Hazard, 5 Dill., 45, the parties were the owners of a tract of land supposed to be mining property. The land was incumbered by certain mortgages. Rowland G. Hazard, one of the owners, was the holder of one of these mortgages. Articles of incorporation were adopted by the owners, and the property was conveyed to the corporation, for which it issued to the owners certain shares of full-paid stock. Rowland G. Hazard afterwards transferred his stock to the defendant. Afterwards the corporation made its promissory notes to the plaintiff's assignor, and the action was brought to recover the amount due on the promissory notes, upon the ground that the stock had never been paid for, and defendant, under the statutes of Missouri, was liable for the plaintiff's debt to the extent of the par value of the stock. The answer denied that the shares had not been paid up in full, and averred that the record and books of the company *Page 486
showed that they were fully paid, on the faith of which defendant purchased the stock. It appears that under the statute of Missouri a creditor of a corporation may maintain an action against a stockholder after a dissolution of the corporation. It was not charged in that case that there was any fraud in the original transaction. It was held that unless the transaction is impeached for fraud it is valid, and that this cannot be done unless the attack is directly made. The court said: `The cases are numerous wherein such transactions as that which was entered into in this instance between the owners of the mining property and the corporation which they formed have come before the courts, and, in the absence of fraud, have been sustained.' It is further said: `The following proposition is fully sustained by the authorities: That the contract is valid and binding upon the corporation and the original share-takers, unless it is rescinded or set aside for fraud; and that, while the contract stands unimpeached, the courts, even where the rights of creditors are involved, will treat that as payment which the parties have agreed should be payment.'
"In the case of New Albany v. Burke, 11 Wall., 96, a city subscribed to the capital stock of a corporation, payment therefore to be made in bonds of the city. A part of the bonds were delivered to the corporation, and afterwards, by an agreement. between the corporation and the city, the bonds were surrendered and the stock subscription was canceled. The action was brought against the city by a creditor of the corporation, in which it was alleged that the settlement and compromise between the city and the corporation was illegal. It was held that, as both the city and the corporation acted in entire good faith, and did that which, under the facts of the case, was for the interest of both, no recovery could be had of the city.
"It is a general principle, well established by authority, that the subscribed capital stock of a corporation is a fund held by it in trust for its creditors, and any release of payment in *Page 487
full for stock subscribed is ordinarily a fraud upon the creditors of the corporation. While this is the rule, it is apparent that it can have no application to a case where it is shown that the transaction complained of is untainted with fraud, and entered into and carried out in good faith by the contracting parties, and without prejudice to creditors.
"The case of Osgood v. King, 42 Iowa, 478, is relied upon by counsel for plaintiff as sustaining the right of recovery in this case. In that case it was charged in the petition that certain parties, including the defendant, organized and incorporated a coal company, and that at the time of the incorporation, and before any other party had any interest in said corporation, the said incorporators, including King, the defendant, conveyed certain lands to the corporation, and issued to themselves certificates of stock for 1,900 shares of $100 each; that the land conveyed was not worth more than $27,500, and would not make payment of more than $14 per share for the stock issued. Recovery was sought as against the defendant, one of said stockholders. The defendant demurred to the petition, and it was held that the demurrer should have been overruled, upon the ground that the transaction, as shown by the averments of the petition, was a gross fraud upon the creditors of the corporation. If the defendant had answered, and upon the trial made it appear, that the transaction was entered into in good faith, and that it did not operate as a fraud upon creditors, it is not to be supposed that the ruling would have been different in that case from the authorities above cited.
"In the case at bar the defendants answered, and a trial was had upon evidence introduced in court, from which it appears that the Burlington, Cedar Rapids Minnesota Railroad Company was hopelessly bankrupt as early as 1871. On the seventh day of February of that year, the company adopted a resolution, which was in these words: `Resolved that, in the adjustment and liquidation of claims against the company, the treasurer be authorized to use the stock of the company, provided not less than twenty per cent of the par value can be *Page 488
realized for the purpose.' The auditor of the railroad company testified as follows: `I am positive that the way the construction company came to receive the 3,500 shares of the stock of the railway company was this: Certain payments were to be made to it in cash, and the shares were given in payment under the resolution referred to. The railway company was entirely unable to pay $70,000 in cash, and the stock had to take the place of the cash payment. They were reluctant to take the stock. The transaction was made at the instance of Judge Greene. The stock was not worth anything in the market. The road owed a floating debt of $500,000. We had no way of paying except by its earnings and its stock, and by borrowing. * * *' This testimony is not contradicted, and its truth must be conceded. It further appears that the mortgages upon the road were foreclosed, and its property was purchased by the mortgage bondholders, and the new company was organized. It is not claimed that the stock in question had. at the time it was issued to the defendants, or afterwards, any value whatever, and, of course, the foreclosure of the mortgage extinguished the stock.
"Now, under this state of facts, if we were to hold the defendants liable to the plaintiffs for eighty cents on the dollar of the stock which was issued to them, it would be grossly unjust. This stock was not issued in pursuance of an original stock subscription. It was issued in pursuance of the above resolution entered upon the records of the corporation. These defendants were creditors, and they took stock under that resolution because they could get nothing else. The stock was then worthless, and so remained, and no creditor would have been defrauded if an unlimited amount of it had been issued.
"The plaintiffs, in effect, demand that because defendants took this worthless stock they are liable to pay the debts due from the corporation to the other creditors. This would be grossly inequitable, and we know of no rule of law requiring us to so hold. It appears that George Greene was president *Page 489
of the Burlington, Cedar Rapids Minnesota Railroad Company at the time this stock was issued, and both he and Traer were stockholders, and members of the construction company, and officers therein. These facts are alluded to in argument. But a stockholder or a director of a corporation may deal with the corporation, and the law will protect him as well as any other party. His relation to the corporation goes only to the question of the good faith of the transaction. Smith v. Skeary,47 Conn., 47. We think the facts in this case fully rebut the presumption of fraud which attaches in transactions of that kind, and that the court should have rendered a judgment against the plaintiff for costs."
It will be seen from the foregoing quotation that no question is made as to the general rule, that the sale of stock in a corporation by the directors for less than the price fixed by the charter is unauthorized, and the stockholder is liable for the unpaid balance. Or, repeating the quotation from Morawetz, found in the foregoing opinion: "The law is well settled that every device by which the stockholders of a corporation seek to discharge themselves from liability to pay their stock subscriptions in full, will be treated as a fraud upon creditors, and may be set aside, if the company should afterwards become insolvent;" or as expressed in Taylor on Corporations: "If the property received is grossly unequal in value to the par value of the shares, the subscriber who received the shares originally, or his subsequent transferee with notice of the circumstances, may be compelled to make up the difference in value, in a suit by or on behalf of the persons injured thereby."
Now, why it is necessary for this court to elaborate and cite authority after authority to support so plain a proposition, is more than I can imagine. The principle is not denied by any counsel in argument in this case, and was not denied in the original opinion, but directly recognized.
But the majority of the court ignore the question as to the right of a person found in the possession of shares of stock, *Page 490
which have not been fully paid, to show that he did not acquire the same as a stock subscriber, and that the transaction by which the stock was issued to him was not a dishonest device, and was not prejudicial as to any one, and that no creditor or stockholder of the company was or could be defrauded thereby. The evidence shows beyond question that the stock was absolutely worthless, and that the company was hopelessly bankrupt, and had no means to pay the debt due to the construction company, and that the stock was taken because of that fact. In the face of this evidence, it is said in the majority opinion that the seventy thousand dollars of debt "was more, as we infer, than the company could easily discharge by a cash payment;" and that "there might have been an understanding that dividends should be made upon it as upon other stock, and that the remaining eighty per cent should not be called for; and that Greene and Traer may have had corrupt motives in taking the stock, and that they may have regarded the stock as of some value, and hoped that the company would be able to pay its debts. "All the fear and apprehension expressed in the opinion as to the peril of creditors and other stockholders is completely answered by the undisputed facts in the case. The thought of the opinion, and, indeed, the only ground upon which it can be based, under the conceded facts, is that, where a person who is a creditor takes payment of a debt in shares of stock in a corporation which is bankrupt and insolvent, and has nothing else to pay with, and the stock is worthless, and the face of the shares amounts to more than the debt, he must pay the difference to the other creditors of the corporation. In other words, the opinion holds that the transaction is conclusively presumed to be fraudulent, and the holder of the stock cannot be allowed to show that it was not a fraudulent device, and that the creditors were not in any manner prejudiced thereby. I feel warranted in saying that no court has ever held any such doctrine. I concede, and in the investigation of this case always have conceded, that it is incumbent on the person to *Page 491
whom the stock is issued to show the good faith of the transaction, and that no one was prejudiced thereby. With due deference to the majority, I think the case of Van Cott v. VanBrunt, 82 N.Y., 535, is precisely in point. I quote from the head note of the case, which is a fair statement of the question decided.
"Defendant, V.B., being the president and director of the H.A.R.R., as such president entered into a contract with C., by which the latter agreed to build and equip a portion of the road, for a certain sum in stock of the company, and for a certain sum in its bonds. Immediately afterward, and in accordance with a previous arrangement, the contract was assigned by C. to V.B., who, with others associated with him, performed the contract at an expense less than the par of the stock and bonds agreed to be paid therefor, which they received. In an action by plaintiff, among other things, to recover of V.B., as the amount unpaid upon the stock, a proportionate share of the difference between the par value of the stock so transferred and the cost of performance, it appeared that the contract was entered into and assignment made in good faith, after full deliberation and consultation, with the knowledge and assent of all the directors and stockholders of the company, as the only means to insure the construction of the road, and that the amount expended exceeded the actual value of the stock and bonds delivered in payment.Held that the stock so transferred was to be considered as full paid-up stock, and that the action was not maintainable."
I have written more than I intended to write, and would not have written anything if it were not for an abiding conviction that the majority opinion is radically wrong in holding, as it does, that the defendants are conclusively presumed to be liable. Their right to be heard ought not, in my judgment, to be denied by such a proposition as that twenty cents are not worth one hundred cents.
If a laborer on the railroad at one dollar and twenty cents a day had received for his month's pay one hundred dollars *Page 492
of this worthless stock, because he could get nothing else, according to the above opinion, the Louisa County National Bank, another creditor, could recover of him the difference between the amount of his wages and the hundred dollars, upon the principle that twenty cents are not worth one hundred cents, and his mouth would be closed against showing his good faith, and that the bank was not prejudiced. And the decision would be a solemn determination that, by, thus taking payment, he was a party to a fraudulent transaction to the prejudice of the bank.
SEEVERS, J., concurs in this dissent. *Page 561 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430573/ | It is conceded by the parties to this cause of action that the plaintiff was an independent contractor and the case was submitted to the jury on this theory. This being true, it is not necessary to spend any time in a discussion of this question. Plaintiff was a master plumber and had been such for 18 or 20 years. He was engaged in business for himself; he had his own shop, tools and appliances. The defendant has for many years been engaged in the seed and nursery business in Shenandoah, Iowa. The plaintiff had for a number of years done work for the defendant and, on October 10, 1934, an agent of the defendant called plaintiff over the telephone engaging plaintiff to come to the defendant's place of business and install steam pipes in the gutters and down spouting on one of the buildings of the defendant company. The plaintiff was told that the defendant company had been experiencing difficulty in the winter months with ice forming in the gutters and it wanted a steam pipe attached to one of the radiators in the main building and extended outside into the gutters and spouting so that ice would not form and stop or clog up the gutters. This was the result which defendant wished to have accomplished. The method and manner of doing the work was up to the contractor. Nothing was said about the defendant furnishing any of the tools or appliances necessary to install the piping. Plaintiff was told to see Burl Snodgrass who would show him where the pipe was to be installed. Plaintiff brought with him his own tools and his regular helper and the company furnished two additional helpers, one of them being Burl Snodgrass. The main building was four stories in height. Adjacent to and on the south side of the main building was a two-story arcade erected over a driveway; this *Page 732
arcade was about 25 feet in width and had a flat roof around the outer edge of which was a balustrade 10 or 12 inches in width and extending up above the flat roof about 14 or 16 inches. South of the arcade was a one-story porch with a flat roof. Extending from the outer edge of the porch to within about 16 inches of the top of the outer wall of the arcade was an iron fire escape built as the ordinary fire escape except that there was no railing on either side of the same, simply the ladder or stairway portion of the ordinary fire escape. The treads or steps were eight inches wide constructed of five 1/2-inch square steel bars set two inches apart with the edge or angle up. These bars were securely riveted into steel plates at each end and these plates were fastened by 3-8 or 1/2-inch bolts to the risers or steel uprights of the ladder or stair. The width of the porch roof is not given nor the degree of incline, but there is in evidence a photograph which indicates the fire escape ladder was set at a rather steep incline. The gutters to be fitted with steam piping were those around the arcade roof. The plaintiff and his helper came to work on October 11, 1934. They saw Snodgrass and together the workmen proceeded to the third floor of the main building. This building is equipped with an elevator and there is also an inside stairway. They spent the forenoon inside making the connections with the radiation of the heating plant and preparing the means of extending the pipe out through the wall of the main building onto the roof of the arcade. The steam piping to be used was placed out on the roof of the arcade. In the afternoon they came back to work going through the main building by means of the elevator or inside stairway; from thence they went out through a window which had been made into a door onto the roof of the arcade. There was also a door in the south side of the second story of the arcade opening out onto the porch roof. It was discovered that the steam piping was bent and plaintiff said, "We will take them down onto the cement driveway and straighten them." The steam piping was in sections about 20 feet long and Snodgrass said, "We will use the fire escape and avoid taking the long piping down through the main building." This was acquiesced in by plaintiff. They slid the piping down along the side of the fire escape to the porch roof and from thence to the ground, the men descending on the fire escape to the roof of the porch and from there by means of a ladder to the ground. In going down this fire escape, plaintiff *Page 733
stepped over the balustrade onto the first tread or step of the fire escape, then turned around facing the ladder using his hands to hold on and he and his three helpers descended to the ground, straightened the pipes and took them back in the same manner to the roof of the arcade where they were installed in the gutter. Thus, the four men went down and up this fire escape experiencing no difficulty and although they were facing the fire escape none of them noticed anything wrong with any of the treads or bars in the treads of the fire escape ladder. After the pipes were installed in the gutter, it was necessary to go down onto the porch roof to make a connection in the down spout. Plaintiff, without any direction or instruction from anyone, took two pipe wrenches in his left hand and a five-foot piece of steam pipe in right hand and undertook to again go down the fire escape. He stepped up with his left foot from the roof of the arcade over the 16 inch balustrade down about the same distance to the first step or tread of the ladder and as he attempted to bring his right foot over the wall he lost his balance and fell to the porch roof below. In describing the accident, plaintiff said, "I came down to the fire wall and stepped over, first with my left foot over this fire wall (or balustrade) * * * when I put that one foot over I put my pipe wrenches, the hand with the wrenches in it, against the wall and started to get over with the other foot." He never got his right foot clear over. He was then asked what happened. He said, "Something give, moved or something and over balanced me. I just fell." The witness was later recalled and was asked to describe what sensation he had, if any, with his foot and, over objection of opposing counsel that the testimony was incompetent and an attempt to have the witness vary or change his testimony, said, "I came up with my right foot. I felt something move, or a little depression. * * * Seemed to go down. As I fell I could feel my heel slip, that is all, just a littleslip. Q. You refer to a depression. What do you mean by that? A. I don't know how to explain it. Q. You say there was a depression? A. Well, just my heel seemed to go down as near as Ican tell. Q. Down in what? A. In the top tread or step." (Italics supplied.) This constitutes the entire testimony bearing on the question as to how the accident happened. The other three men were on the roof at the time but were not looking and did not see what took place until they saw the plaintiff in the act of falling. *Page 734
The gist of plaintiff's claim for damages is found in the allegations of his petition which charges negligence on the part of the defendant in the following manner:
"That the iron fire escape offered by the defendant to this plaintiff for use, was out of repair, infirm and insecure, in that the top step or tread was uneven, loose and rough, and slanted down in front. That the defendant did not warn or notify this plaintiff of said defective condition and knew of its defective condition prior to the time of the accident, or in the exercise of reasonable care should have known of such defects, and permitted it to exist in said condition knowing the same was likely to be used by workmen upon the premises."
This was the only ground of negligence submitted to the jury. In answer to the charge of negligence, the defendant alleged the plaintiff was an independent contractor and the defendant did not owe him the duty of furnishing him a safe place to work; that plaintiff failed to exercise reasonable care in attempting to make use of the fire escape; that if same were in any way defective such defect was readily apparent in the exercise of ordinary care and, therefore, the plaintiff assumed any risk incident thereto and if the defect was not readily apparent the same was not known to the defendant. On this appeal, it is the contention of defendant that plaintiff failed to make out a case for the jury, and that its motion to direct a verdict should have been sustained and that in overruling said motion made at the close of plaintiff's evidence and at the close of all the evidence the trial court committed an error. More specifically it is claimed that (a) there was no competent testimony of actual knowledge of the claimed defect or that such condition had existed for a sufficient length of time to constitute constructive notice, (b) that there was no causal connection, there being nothing but conjecture that the alleged defect in the top step caused plaintiff to fall or was the proximate cause of plaintiff's injury, (c) the defendant was not an insurer of plaintiff's safety, and was not required to furnish plaintiff as an independent contractor a safe place to work, and (d) there was a failure to prove freedom from contributory negligence. That the plaintiff fell and sustained a serious injury is not disputed. The case was submitted to a jury which returned a verdict for the plaintiff in a substantial sum. *Page 735
[1] Counsel for appellee have gone to great pains and expended a great deal of labor and effort to sustain this verdict. In view of these facts, we have given this case our very careful study and consideration well realizing that ordinarily the question of proximate cause, as well as contributory negligence, are matters for the jury and it is only where the facts are such that all reasonable men must draw the same conclusion from them that these questions become questions of law for the court.
[2] In passing on defendant's motion to direct a verdict, the plaintiff is entitled to have the evidence considered in the light most favorable to him. Willers et al. v. Flanley Grain Co.,224 Iowa 409, 275 N.W. 474.
"Every inference reasonably permissible in support of the issue should be carried to the aid of the evidence." McWilliams v. Beck, 220 Iowa 906, 909, 262 N.W. 781, 782. Having in mind these rules, we still find that defendant's motion should have been sustained.
[3] The only duty owing by the defendant to the plaintiff as an independent contractor was that of exercising reasonable care to promote his safety. Plaintiff was an invitee and it was defendant's duty to warn him of any danger in and about the premises which he knew of or in the exercise of ordinary care ought to have known of and of which plaintiff was not aware or which in the exercise of ordinary care on his part would not have been discovered. Steele v. Grahl-Peterson Co., 135 Iowa, 418,109 N.W. 882.
Defendant was not responsible to plaintiff as an independent contractor for injuries from defects or dangers which the contractor knew of or ought to have known of "but if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury." Douglas v. Peck L. Co.,89 Conn. 622, 95 A. 22, 25; 44 A.L.R. 894, note; Arizona Binghampton Copper Co. v. Dickson, Adm. etc., 22 Arizona 163,195 P. 538, 44 A.L.R. 881.
Much of appellee's argument is based on the assumption that Snodgrass had some control over the manner and method of doing this work and, when he said something about using the fire escape, plaintiff was obliged to follow his direction. This is *Page 736
a false premise. The only instructions Snodgrass had from anyone in authority was to show plaintiff "where" the pipe was to be installed. Furthermore, at the time plaintiff attempted to go down the fire escape the second time he was under orders from no one. He was his own boss. The piece of pipe he had in one hand was only five feet long and he could have taken it down the elevator and then up the ladder resting on the ground. He could have brought his own ladders. He was under no obligation to use this fire escape. Neither was defendant under any duty to furnish him with tools or appliances with which to do his work. The statement in the petition "that the iron fire escape was `offered' by the defendant to this plaintiff for use" is not borne out by any testimony. Furthermore, the danger did not inhere in the condition of the fire escape, but the manner of its use. Counsel for appellee, in argument, compares this fire escape to the steps leading up to the entrance to the State House. The comparison is unreasonable. The entrance to the State House is open to the use of the public and hundreds of persons use it daily; whereas, this fire escape is in no sense a thoroughfare. From the ground, one had to climb a ladder to get to it. It was intended for what its name implies. Considered in connection with the necessities or exigencies of this occasion, it is more reasonably compared to a ladder by means of which the workmen could descend or ascend in going to and from the roof of the arcade to the roof of the porch. Considered as a ladder, it was indeed a very solid and substantial one and, when used as a ladder is ordinarily used, it must, we think, be said as a matter of law that it was perfectly safe. When used by the men as a ladder going up and down facing it, at the same time making use of their hands, none of them experienced any difficulty. It was only when the plaintiff undertook to step over this balustrade wall 12 inches wide and 16 inches high with his hands so occupied that he was powerless to help himself that he had any trouble. Can it be said with any reason or logic that the defendant should answer for this? Can the minds of reasonable men differ as to this?
In the case of Dreier v. McDermott, 157 Iowa 726,141 N.W. 315, 50 L.R.A. (N.S.) 566, this court said [page 737 of157 Iowa, page 315 of 141 N.W.]:
"It has been repeatedly held that where one knowingly *Page 737
places himself in a place of danger which he might easily have avoided he assumes all the risk incident thereto."
In the case of Stein v. Battenfield Oil Grease Co.,327 Mo. 804, 39 S.W.2d 345, 351, the Supreme Court of Missouri, in passing upon a similar question where the claimant was injured by falling into a rapidly moving belt, said:
"The deceased, in going to the respondent's plant as an independent contractor to do work was an invitee. The respondent would be liable for injury to him occasioned by any unsafe condition of the premises encountered in the work, which was known to it but unknown to him; but was not liable for injuries resulting from conditions obviously dangerous and known by the deceased to be so. As to these, he was guilty of contributory negligence, or, more accurately, assumed the risk. He knew the belt was unguarded, he knew the motor was running `at great speed and with terrific force,' as the petition says, and yet he took a position 3 feet above the floor with one foot upon the rounded flange of the motor and the other on a crosspiece against the wall about 3 feet away, with his legs astride the rapidly moving belt and his body twisted, while he worked. He was not a servant ordered by the respondent to go where he did; he was an expert following his own devices. He knew the conditions he would have to cope with. Under the authorities the respondent cannot be charged with liability for the unfortunate result. Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Vogt v. Wurmb, 318 Mo. 471,300 S.W. 278; Goetz v. Hydraulic Press Brick Co., 320 Mo. 586, 9 S.W.2d 606, 60 A.L.R. 1064; Cash v. Sonken-Calamba Co., 322 Mo. 349,17 S.W.2d 927."
[4] When plaintiff, with his hands full standing on the roof of this two-story building facing out into space, undertook the acrobatic feat of either walking down this steep incline as he would an ordinary stairway or of balancing himself on one heel and swinging his body around as he brought his other leg over the balustrade to face the ladder without the aid or assistance of his hands, he created his own danger. He assumed the hazard or risk such conduct entailed and must be held as a matter of law to have contributed in some degree to his own injury. Any other rule would make of defendant an insurer.
[5] This is sufficient to dispose of the case. There is still *Page 738
another ground of the motion that we think was good. There was no causal connection between the alleged defect in the top tread and the injury. If we turn back to plaintiff's testimony set out above and give attention to the italicized portion, it must be said that there was nothing but conjecture upon which the jury could arrive at the conclusion that the defect caused plaintiff to lose his balance and fall. A few migrates after the accident, Fred Gowing, a nephew of the plaintiff and who was at the time general repair and maintenance man for the defendant, asked plaintiff how it happened and plaintiff said that "he caught his heel on one of the steps." Not a word was said by any of the men at the time of this unfortunate accident about any defective condition in the fire escape.
As to the actual condition of this top step, the evidence of the plaintiff is in hopeless conflict. The evidence of Fred Gowing, who examined the fire escape two days after the accident, impeaches the testimony of Herold, who examined it a few hours after the accident, and Brooks, who examined it a few days later. The last two named witnesses testified that the middle bar of the top tread was bent down from 1 1/2 to 2 inches below the rest while Fred Gowing testified that he examined it and the bars were even and none of the bars in the top tread were bent and also said that it was in the same condition at the time Brooks examined it that it was at the time of the accident. There was no evidence that the bar was bent before the accident. As to whether it was bent, as well as to the extent it was bent, after the accident was, of course, for the jury. There was expert testimony to the effect that it would be physically impossible for one of these bars, fastened solidly as it was in the steel plates which were in turn bolted to the side arms, to be bent down as much as Brooks and Herold said it was without pulling it out of the plate. Some allowance must, of course, be made for inaccuracy as to the exact condition because of the fact that the trial took place more than two years after the accident. It must be said to the credit of the plaintiff that he at no time claimed to know just what caused him to fall. He said, "Something give, moved, orsomething." When recalled and pressed by leading questions to make his answers more specific, he said that he could not explain it but as near as he could tell his heel seemed to go down in the top step. There is no evidence that defendant had knowledge of the defect. When this bar was bent, whether the condition had *Page 739
existed for a sufficient length of time to amount to constructive notice, whether the bent bar was the thing that caused plaintiff to lose his balance and fall, or whether his heel caught on the narrow edge of any one of the bars and slid down into the space between or into this depression where the middle bar was bent is all mere conjecture and speculation. Verdicts must rest on something more substantial. In a recent case, Westenburg v. Johnson, 221 Iowa 134, at page 141, 264 N.W. 18, at page 22, we said:
"* * * the cause of the accident must be clearly shown and cannot be left to speculation or conjecture."
[6] For the reasons indicated, the case must be reversed and, under the record here, we think it should be remanded with instructions to enter an order sustaining defendant's motion to direct a verdict with costs, and it is so ordered. — Reversed and remanded with instructions.
SAGER, C.J., and STIGER, DONEGAN, and ANDERSON, JJ., concur.
MITCHELL, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430590/ | During the transactions about to be related *Page 912
each of the parties to this action owned a business building in Fort Dodge. Plaintiff's building was equipped with a steam heating plant. On August 13, 1926, these parties entered into a written contract. Therein plaintiff agreed to furnish, from his heating plant, steam for heating defendant's building for one year's heating period beginning on October 1, 1926, and ending May 1, 1927, the steam to be delivered at the inside wall line of defendant's building. The contract provided that defendant would furnish all radiation in its building, and that defendant would pay plaintiff the sum of $1,800 for such steam to be furnished during said period. Accordingly steam was transported from plaintiff's to defendant's building through a pipe system during the heating period mentioned in the contract, and defendant paid therefor the agreed amount. No subsequent written or verbal agreement between the parties was entered into with respect to this subject matter. But for seven years following the original heating period mentioned in the written contract, that is up until May 1, 1934, plaintiff continued to furnish steam to defendant, in the same manner as was done during the original period, excepting that on January 15, 1933, defendant disconnected the radiators on the two upper floors of its building. Likewise each year defendant paid for such steam the sum of $1,800, excepting that a dispute arose as to the extent of the liability of defendant for the last annual heating period beginning October 1, 1933, and ending May 1, 1934, and this action now before us on appeal was brought to recover for the steam furnished during that period. In his petition plaintiff alleged that defendant, by its acts and conduct, impliedly promised and agreed to pay plaintiff the sum of $1,800 for the steam furnished for the heating period ending May 1, 1934, and demanded judgment for that amount. At the close of the testimony the court directed a verdict for plaintiff as prayed in his petition, and defendant has appealed.
The question is presented whether there was error in the directing of the verdict. If the court's action was warranted it was because plaintiff had pleaded and established a good cause of action against defendant and had done so with proof of such nature that on the whole record there was generated no controverted issue of fact that should have been submitted to the jury. It will be noted that plaintiff did not declare upon a quasi-contract, nor did he seek to recover upon quantum meruit. *Page 913
Rather he alleged that defendant had promised and agreed to pay $1,800 for the steam furnished and that such promise and agreement was expressed not in written or spoken words but had been implied by the acts and conduct of defendant.
[1] This court has recognized that there are circumstances under which a promise of an alleged promisor may be inferred from his acts and conduct, justifying the promisee in understanding that the promisor intended to contract. In Curtis v. Dodd
Struthers, 172 Iowa 521, 154 N.W. 872, plaintiff had performed a salesman's services pursuant to a written contract which terminated at the end of one year. Thereafter he continued in the same employment and brought action to recover for such subsequent services, either under an express contract or upon one implied as of law, and prayed for judgment for commissions at the rate fixed in the written contract or for the reasonable value of such services which he alleged to be the sum named in the written contract. Inter alia it was held that plaintiff in that action could show that after the expiration of the written contract he continued to work under said contract, so far as applicable, by showing an express contract to that effect, or by showing such state of facts as that the law will imply an agreement on the part of the defendant to pay plaintiff at the rate fixed in the written contract for services rendered after its expiration. See, also, Merchants T. S. Co. v. Emerson-Brantingham Impl. Co.,183 Iowa 533, 167 N.W. 472. Similarly, if a tenant, with the consent of his landlord, continues in possession after the expiration of a term of years, it has been said that the law implies, in the absence of an express agreement or showings to the contrary, that the premises are held on the former terms, it being supposed that the previous agreement has been renewed for at least another year. Dubuque v. Miller, 11 Iowa 583. Concerning the nature of a contract implied in fact it has been held that to every intent and purpose it is an agreement between the parties, and does not arise out of an implied legal duty or obligation, but out of facts from which consent may be inferred. City of Pella v. Fowler, 215 Iowa 90, 244 N.W. 734. The difference between an express contract and one implied in fact is in the method of proof. In re Unangst's Estate, 213 Iowa 1064, 240 N.W. 618.
[2] In view of these authorities it is evident that plaintiff set out a cause of action susceptible of proof. As a part of the *Page 914
proof thereof plaintiff points out that defendant at no time requested or notified plaintiff to discontinue the furnishing of the steam but in fact continued to accept it for defendant's heating purposes up to May 1, 1934. Plaintiff also says that the mere disconnecting of a part of the radiation was not such an act that it can be said to have indicated to plaintiff that defendant was adopting any course of action other than that contemplated by the original written contract. Stated in another manner plaintiff contends that there is no evidence that the disconnecting of the radiators was more than a temporary arrangement for defendant's convenience in the continued carrying out of the arrangement following the surrender of the upper floors by the then tenants. Plaintiff further urges that defendant's acts affirmatively indicated to plaintiff an intention to continue the original arrangement, such acts of defendant including defendant's apparently voluntary payment of the original stipulated sum of $1,800 for the period ending May 1, 1933, without any claim for deduction on account of a part of the radiators having been disconnected after January 15, 1933. Plaintiff also points out that defendant, after paying in full for the steam ending May 1, 1933, in no way indicated to plaintiff any intention to do otherwise during the period ending May 1, 1934, than to pay the same amount paid May 1, 1933, until the letter dated April 20, 1934, practically the end of the heating season. It is true that defendant pleaded that the payment of the full amount for the period ending May 1, 1933, was an error on its part. But the evidence fails to show any such claim of any mistake was communicated to plaintiff. As a result the only information that plaintiff had was the fact of the full payment.
In the opinion of the majority of the court, not including the writer, plaintiff had a right as a matter of law to assume that defendant's actions implied an agreement to carry out again the written contract and plaintiff did unquestionably so assume.
There is no competent evidence that establishes any error in the payment of the $1,800. It follows the district court rightly directed verdict for plaintiff. The judgment is affirmed. — Affirmed.
HAMILTON, PARSONS, ANDERSON, STIGER, and MITCHELL, JJ. concur. *Page 915 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430599/ | The record shows that four razors, two or three pair of scissors, combs, strops, and a mug were released as exempt. We do not understand plaintiff to resist the defendant's right to the exemption of his proper tools as a mechanic, under Section 11760, Code of 1924, and we think that such resistance could not be successfully made. Baker v. Maxwell, 183 Iowa 1192; Fore v.Cooper (Tex. Civ. App.), 34 S.W. 341; Terry v. McDaniel,103 Tenn. 415 (53 S.W. 732); 25 Corpus Juris 51. As we understand plaintiff's claim, it is that the defendant must point out the particular tools used solely by him, and that, under the language in Holden v. Stranahan, 48 Iowa 70, *Page 1279
— namely, "the statute means the tools or instruments used or handled by the mechanic," — defendant is not entitled to the exemption of tools which he does not personally use. The specific contention is that the defendant was employing other barbers; that he had four chairs, and was not entitled to claim more than one chair as exempt; and that his claim of "the liquids, powders, creams, and shampoos" is too general; that defendant is entitled only to the property incident to the one chair. The defendant's motion was supported by affidavits, in which it was stated that the property listed was his proper tools and instruments of trade used by him in his business of operating a barber shop. He shows that he is a barber by trade, engaged in that business, a resident of the state, and the head of a family. In his testimony in support of his motion, defendant testified that his shop was a four-chair shop; that he was employing two men besides himself, and at times employed four men, if necessary; that the equipment was for employing men besides himself. In Holden v. Stranahan,48 Iowa 70, cited by plaintiff, the question was whether the building in which plaintiff carried on his occupation of photographer was exempt. The court said:
"The statute means the tools or instruments used or handled by the mechanic, and does not include the building or place where the trade is pursued."
It is evident that the case does not bear the interpretation that counsel places upon it. The statute exempts "the proper tools, instruments, or books of the debtor, if a farmer, mechanic, surveyor, clergyman, lawyer, physician, teacher, or professor." Section 11760. Manifestly, we think, a farmer, for instance, would not be limited in his exemption to the tools which he himself could handle, or the lawyer, physician, teacher, or professor to the books which he personally uses. It is "the proper tools, instruments, or books" that are exempt. Some machines that would be exempt would require more than one man to operate them. See Baker v. Maxwell, 183 Iowa 1192. In Fore v.Cooper (Tex. Civ. App.), 34 S.W. 341, two barber chairs and their accompanying equipment were held to be exempt. In Daniels v.Hayward, 5 Allen (Mass.) 43 (81 Am. Dec. 731), the court said:
"While the exemption was not intended to apply to large *Page 1280
manufacturing establishments, it has not been supposed to be at variance with the letter or the spirit of the statute to apply it to the case of a mechanic, carrying on a small business, although he may have in his employment men who perform the principal part of the labor with the tools, implements, and fixtures. The limitations as to exemptions of this character were carefully stated by the court, and properly applied to the case. This view of the statute seems well authorized by the cases of Pierce v.Gray, 7 Gray, 67, and Dowling v. Clark, 1 Allen, 283; and 3 Allen, 570."
In Smith v. McBryde (Tex. Civ. App.), 173 S.W. 234, it is held that the statute exempting "`all implements of husbandry' * * * would include all implements used by the farmer in conducting his farming operations, not only those that he might use directly, but those used by his tenants and employees."
In Bliss v. Vedder, 34 Kan. 57 (7 P. 599, 55 Am. Rep. 237), it is held, under a statute exempting "the necessary tools and implements of any mechanic, miner, or other person, used and kept for the purpose of carrying on his trade or business," that one who is an editor and publisher and performs a considerable portion of the work himself, though the manual labor is done in part also by the agency of employees, is entitled to the exemption. See, further, 25 Corpus Juris 53. We are of the opinion that, under our statute, the farmer, mechanic, etc., are not limited in their exemptions to the precise tools, instruments, or books which they personally handle or ordinarily themselves alone use. To so limit the statute would be to deny, in many instances, the benefit of the exemption laws, which are to be liberally, and not strictly, construed. The limitation is to "the proper tools," etc., of the debtor. The exemption, however, does not extend to tools, instruments, or books which are, in effect, capital, owned and used for the purpose of profit in the operation of an extensive business. We think that the question in each case is one of fact, whether the tools are the proper tools in the reasonable conduct of the debtor's trade or profession. In this case, the defendant's showing on affidavit is that the four chairs are his proper tools and instruments of trade; but he also shows that he employed as many as four men, when necessary, and for the purpose of gain. It may be that defendant *Page 1281
himself might, with one or more assistants, require for the proper operation of his trade more than one chair. We think, however, that, on this record, he is claiming exemption of chairs in excess of the number that would be his proper tools of trade, and is claiming exemption for chairs which are, in effect, the capital of a business which he owns, and through others operates, rather than through them as assistants to him in his trade; and on this particular record, his showing does not sustain his claim to more than one chair. Defendant claims as exempt, among other things, one gum machine, two gallons of hair tonic, and one-half gallon of shampoo. We are of the opinion that the gum machine cannot be claimed as exempt, and that, while the quantity of hair tonic and shampoo may be rather large, the record would not authorize us to say that it is unreasonable. He claims also one four-chair case. The fact that he has installed a case larger than is necessary for his requirements, without any further showing, would not, of itself, defeat the exemption. The claim for cash register, 1 pair clippers, 1 small mirror, 1 table, 1 writing desk, 8 straight chairs, 1 rocking chair, 1 small wall case, 1 heating stove, 1 water heater and tank, 1 electric massaging machine, 1 electric hair dryer, 1 child's seat, 1 shearer grinder, 1 hall tree, 1 two-hole lavatory, we think should be sustained.
On the showing made, the court should have sustained the claim to exemption, except as to three barber chairs and one gum machine. The defendant has the right to select one chair. The judgment is — Reversed.
STEVENS, FAVILLE, De GRAFF, VERMILION, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430601/ | On March 1, 1917, the defendants Bowers executed unto the defendant Duncan their promissory note in the sum of $15,750, which, according to its terms, became due on the 1st day of March, 1924. To secure the payment of said note, the makers executed unto the payee a real estate mortgage upon certain real estate situated in Union County. Said mortgage was duly filed and recorded in the recorder's office of said county. On March 31, 1917, the defendant sold the note to the plaintiffs, and indorsed the same in blank, and executed unto the plaintiffs his written assignment of the mortgage, which latter instrument was also filed and recorded.
On March 1, 1918, the defendants Bowers conveyed the mortgaged real estate to the defendant Trenkle by warranty deed, and on March 1, 1920, the defendant Trenkle made conveyance of same to the defendant Frese, by deed of warranty. Both of these latter instruments provided therein that the grantee assumes and agrees to pay the aforesaid mortgage debt.
There was a prior mortgage incumbrance against the real estate, in favor of the Collins Mortgage Company, which came due in 1924, and which the parties interested desired to renew; but, in order to make the arrangement with the mortgagee holding the first mortgage, it was necessary that the renewal mortgage constitute a first lien. The plaintiffs and the Bowerses, the makers of the note, Duncan, the indorser of the note, and Frese, the owner at that time of the real estate, entered into an agreement whereby the plaintiffs' second mortgage should be released of record, and thus permit the renewal mortgage to become a first lien. Pursuant to said arrangements, the plaintiffs, on May 1, 1924, released their second mortgage, and after the recording *Page 547
of the aforesaid renewal mortgage, said mortgage was re-recorded, together with a second assignment of same from Duncan to the plaintiffs. Nothing is claimed in behalf of appellant by reason of this transaction.
It appears that the interested parties desired an extension of time for the payment of the note in suit, and on March 20, 1925, a written agreement extending the time of payment to March 1, 1929, was entered into between the plaintiffs and the defendants Bowers, with the consent of the then owner of the real estate, and also with the consent of the indorser, Duncan. Attached to and constituting a part of said written extension is the following:
"I hereby accept the above conditions upon which the said extension is granted and agree to carry out the provisions thereof and upon default, authorize the holder of said note and mortgage to proceed the same as though no extension had been given. I, as endorser of the above mentioned note of $15,750.00, hereby consent to the extension of the time of payment of said note and mortgage securing the same and my liability continues until said note is paid. L.D. Duncan."
The interest due on the note in suit was not paid on March 1, 1926, and the principal became due by reason of an acceleration clause therein, which provides that, if any interest shall remain unpaid 30 days after due, the principal shall become due and payable at once, without further notice, at the option of the holder. A similar clause also appeared in the extension agreement. The instant suit was begun on April 3, 1926. The plaintiffs make, as a part of their petition, copies of the note, mortgage securing the same, and the extension agreement, and ask for personal judgment for the amount due on the note against the defendants Bowers, Duncan, Trenkle, and Frese, and for foreclosure of the mortgage. At the first term of court after suit was brought, all of the defendants except Duncan defaulted, and judgment and decree was rendered as against all of the defaulting defendants, and the cause was continued as to the defendant Duncan, the court retaining jurisdiction of the cause as against him, for the purpose of thereafter adjudicating the rights as between the plaintiffs and said defendant.
The defendant Duncan attacked the plaintiffs' petition by *Page 548
what is denominated in Section 11130 of the Code of 1924 a motion to dismiss, which was overruled. It is urged therein that, since the plaintiffs seek judgment against the 1. PARTIES: defendants Bowers upon the note, and against party Trenkle and Frese upon their assumption defendants: agreement, and against the defendant Duncan on foreclosure his blank indorsement, and ask for foreclosure of of the mortgage, there is a misjoinder of mortgages. defendants and of causes of action. Was the action of the court in overruling said motion correct? We answer in the affirmative. See Section 10975 of the Code; Darling v.Blazek, 142 Iowa 355; Bennett Sav. Bank v. Smith, 171 Iowa 405; Section 10942 of the Code. It is provided by the latter section of the Code that an action on a note, together with a mortgage for the foreclosure of the same, shall be by equitable proceedings; and by the former section that, where two or more persons are bound by contract, whether jointly only, or jointly and severally, or severally only, including the parties to negotiable paper, and sureties on the same or separate instruments, or by any liability growing out of same, the action thereon may, at the plaintiffs' option, be brought against any or all of them. (The italics are ours.) In Darling v. Blazek,142 Iowa 355, we said:
"It is true * * * that, in the strict sense of the word, `maker' and `indorser' are not parties to the same contract; but it has long been the rule in this state that all parties liable upon the same negotiable instrument, whether as makers, indorsers, or guarantors, may be joined as defendants in an action wherever jurisdiction of the parties is properly acquired."
In Bennett Sav. Bank v. Smith, supra, we held that a party assuming and agreeing to pay a debt, although his liability arises on a separate instrument, may be sued jointly with the maker of the original instrument upon which the debt arose. In view of the foregoing statutes and our pronouncements thereon, the action of the trial court in overruling the motion to dismiss was correct.
After the overruling of the aforesaid motion, the defendant answered, and the cause was brought to trial upon the merits, as between the plaintiffs and the defendant Duncan. At the conclusion of the trial, the court rendered judgment against said defendant for $2,020.29, and provided that no execution should *Page 549
issue on said judgment until after the final report of the receiver (formerly appointed in this cause) is filed and approved by the court, and that he should be credited on the judgment with the net amount of the proceeds of said receivership, and that the plaintiffs and the defendants should each have ten days' notice of the time and place of the hearing of the final report of the receiver, and that, if the defendant Duncan should pay the judgment, he should be subrogated to the rights of the plaintiffs as against the defendants Bowers, Trenkle, and Frese.
The amount of the judgment against the defendant Duncan is the difference between the amount due on the note, according to its terms, and the amount previously realized from a sale on special execution of the mortgaged real estate. The defendant complains because of the form and indefiniteness of the judgment rendered, but it is apparent that the judgment is for the deficiency to which the plaintiffs are entitled, and that it gives the defendant the benefit of whatever amount may be realized from the receivership. The complaint of the plaintiffs in this respect is devoid of merit.
It is also contended by the appellant that the note, having been previously placed in judgment, as against the remaining defendants, has been canceled and paid, and the appellant discharged. This contention is not substantiated 2. MORTGAGES: by the record. While judgment was rendered foreclosure: against the remaining defendants at a previous default term of court, and while the sale of the real judgment: estate on execution was had prior to the time effect on when judgment was rendered against the indorser. appellant, he, as an indorser, was only secondarily liable, and received the benefit of it; and it was expressly provided in the judgment and decree against the remaining defendants that the cause was continued for adjudication as to the rights between the plaintiffs and the appellant.
It is the further contention of the appellant that, as an indorser of the note, he is not liable, because, 3. BILLS AND as claimed, the note was not presented for NOTES: payment to the makers of the note when due, on presentment: March 1, 1924, and for failure to notice of provide him with notice of dishonor, dishonor: in accordance with the provisions of waiver. our statutory law. The appellant introduced no evidence bearing upon this question. The note fell due, according to its terms, on the *Page 550
first day of March, 1924; the extension agreement was entered into on March 20, 1925; Duncan, at that time, signed a stipulation providing that his liability as an indorser of the note should continue until the note was paid. We set out a portion of the examination of one of the plaintiffs:
"Q. On the first day of March, and before this instrument [extension of mortgage] was made, was there anything that had been done in 1924 to make any presentation of this note to anyone when it fell due? A. Yes. Q. And on what day was it, — on the very day it fell due? A. Yes, sir, I made a special trip to Mr. Duncan's house, to notify him."
Even if it can be said that the plaintiffs failed to comply with the statutes relative to presentment to and notice of dishonor by the makers of the note, the record affords abundance of evidence sufficient to constitute a waiver by the appellant. At the time of the arrangement for the release of the plaintiffs' mortgage, for the purpose of placing the renewal of the first mortgage on record, the appellant declared to the plaintiffs:
"I am just as anxious as you are to see things go on; maybe they could pay out. I will agree to most anything that is right, to keep it as a going proposition. I am willing to stand back of that, the same as I have, in order that we can keep this thing going."
This conversation occurred about the 1st day of May, 1924, after the note in suit was due. At the time of the extension agreement of said mortgage, on March 20, 1925, when he agreed that his liability as indorser upon the note should continue until the note was paid, he knew as much then as to whether there had been failure of presentment and notice of dishonor as he knew at the time of the institution of suit against him. By his acts, oral declarations, and written agreement, he has waived any failure on the part of plaintiffs in making presentment and in giving notice of dishonor, if there was such failure.
"Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied." Section 9570, Code of 1924. *Page 551
"An indorser who, after the time for giving notice of dishonor, declares his intention to pay the note, waives notice of dishonor, whether he had knowledge of his discharge by failure to give notice or not, and no consideration is necessary to support a waiver." Brannan's Negotiable Instruments Law (4th Ed.) 701.
See, also, County Sav. Bank v. Jacobson, 202 Iowa 1263. Under the record in this case, it cannot be claimed by the appellant that, as an indorser, he has been released from liability on the note for any failure of presentment and notice of dishonor, as there has been a complete waiver as to same by him. See CountySav. Bank v. Jacobson, supra; Davis v. Miller, 88 Iowa 114; Lomaxv. Smyth Co., 50 Iowa 223; Creshire v. Taylor, 29 Iowa 492.
It is further contention of the appellant that, since there was an extension of the time of payment of the note until March 1, 1929, and since the note provides that for failure to pay the interest within 30 days after the same becomes 4. BILLS AND due the principal shall become due, at the NOTES: option of the holder, there was no presentment presentment: to the makers of the note at the time the notice: holders elected to declare the same due, in waiver. 1926, and no notice of dishonor given to him. This contention of the appellant's is without avail. The extension agreement provides that, in case the interest was not paid for a period of 30 days after due, then said agreement should become null and void, and said note, as well as accrued interest, should become due and payable at once. The appellant accepted this condition, and agreed to carry out the provisions thereof; and he authorized the holder of the note and mortgage, upon default, to proceed the same as though no extension had been given.
The bringing of the suit was a sufficient election to declare the whole amount due. No demand was necessary. The notice of the suit was notice of nonpayment. Jurgensen v. Carlsen, 97 Iowa 627;Swearingen v. Lahner, 93 Iowa 147; 8 Corpus Juris 417.
We have considered every proposition argued by the appellant, and find his contentions to be without merit. The judgment *Page 552
of the trial court is correct, and the same is hereby affirmed. — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430664/ | The note sued on herein was for $5,000, and was in the usual form, but contained a provision reading as follows: *Page 373
"We expressly stipulate and agree that our homestead is and shall be liable for the payment of this debt."
The answer of the defendant Ellen Phillips is a general denial; a special denial that the plaintiff has now or ever had a lien on the homestead; a special denial that she executed or joined in the $5,000 note declared upon. She further 1. BILLS AND alleges that Daniel H. Phillips, who was her NOTES: husband, on the 28th day of November, 1921, and execution: for some time previous, had been sick, and on signing that date he advised her that he had borrowed without $200 from the plaintiff; that she then knew that reading. he had previously given a note to the plaintiff for $5,000; that on that evening he started for the Mayo Clinic at Rochester, Minnesota, where he remained until the 22d of December following; that she was advised by telephone that her husband had a malignant disease, and she was asked to come at once to Rochester; that, on the 9th of December, she started for Rochester, and on her way called at plaintiff's place of business; that plaintiff presented her some papers, saying, "These are the papers you are to sign," or words to that effect; that the defendant then and there, without reading same or being advised of their contents, executed the papers, as presented by plaintiff; that she received no consideration for the execution of the $5,000 note declared upon by plaintiff; that the execution by this defendant of the $5,000 note declared upon in plaintiff's petition was without knowledge of the said Daniel H. Phillips; and that, after the same had been accepted by said bank, she had no knowledge of plaintiff's having or claiming to have a $5,000 note given by Daniel H. Phillips.
At the time of the trial of this case, there was pending another case in the same court between the same parties, in which Ellen Phillips was plaintiff, and all other parties to this action defendants, asking for the partition of 160 acres of land formerly owned by said Daniel H. Phillips, — who had, in the intermediate time, deceased, — in which proceedings Ellen Phillips was asking to have her third set off so as to include the homestead; and the First National Bank in that case admitted that the deceased owned said real estate, and that 40 acres thereof constituted the homestead of the deceased and his family at the time of his death. The testimony in both that partition case and the present case was submitted at the same time, to avoid repetition. *Page 374
The lower court granted the plaintiff in this case a judgment against Ellen Phillips for $5,540, and interest and costs, from which judgment she duly appealed. The court refused, however, to grant the bank the further relief prayed for by it, in a finding which is as follows:
"And the court further finds that the plaintiff is not entitled to have the same established as a lien against the homestead of Ellen Phillips by virtue of the provisions of the note declared upon."
From this refusal by the court the bank appealed.
The evidence in the case abundantly shows that, on the 28th day of November, 1921, Daniel H. Phillips was owing the First National Bank a note of $5,000; that he was then suffering from an incurable disease, and wished $200 ready money, to go to the Mayo Clinic at Rochester, Minnesota; that the bank called his attention to the $5,000 note, which they asked to have renewed, and told him that they would loan him the $200, but that he must procure his wife's signature to the notes; and that he said he would have her come in and sign. At that time he signed a renewal note of $5,000, and the old $5,000 note was turned over to him. He also signed another note of $300, which covered some interest and other matters he owed the bank, together with the $200 he borrowed. There is nothing to show that he ever said anything to his wife, other than that he had gotten $200 from the bank. Eleven days later, the wife received notice from the Mayo Clinic that her presence was needed there at once. She and her son, who was 24 years of age, went to town, and the son went to the bank, where he was told that his mother was to come in and sign some notes. He found his mother, and advised her accordingly, and she went to the bank. She says that she went there "to sign some notes." She did not say anything to the employees of the bank, but she says that one of them shoved out a paper, and said, "This is what you are to sign," and she signed it; that he shoved out another, and said, "This."
"I signed it. I knew they were notes. I did not know their amounts."
She says she can read, but that she felt so bad that she did not read them. Nothing prevented her from reading them. No one read them for her, and she asked no one to do so. There is no plea of fraud or duress, nor is there any claim that she was *Page 375
deceived; that there was anything concealed from her; or that she was overreached in any way. We have too often pronounced on this kind of a situation to require a citation of authorities. One who signs under these circumstances, without giving any attention whatever to the contents of the paper, is bound thereby. She knew that she was signing notes at the time, and where one signs as surety, it is not required that he know the terms of the principal agreement. Christensen v. Harris, 190 Iowa 256; Bank ofHolmes v. Thompson, 192 Iowa 1032; Van Houten v. Van Houten,202 Iowa 1085.
There is no claim that the husband practiced any fraud on her, to induce her to sign the note. It is too well settled a principle to require citation of authority that fraud is never presumed, but always must be proven by the party alleging it. There is nothing in the situation to show that there were any false representations made to her, and we can see no escape for her from the liability incident to the signing of such an instrument. It is equally well settled that the agreement between the bank and Daniel H. Phillips that, as a part of the consideration of the renewal of the old note and the giving of the new note, together with the loan of the $200, Ellen Phillips should sign the same, when she did sign, in pursuance of that agreement, carried a sufficient consideration. There was no burden on the bank to prove that she had a full understanding of the instrument she signed. First Nat. Bank v. Ten Napel, 198 Iowa 816. The ruling of the district court entering judgment against Ellen Phillips for the balance due on the note was correct.
As to the appeal of the bank, we have given this matter serious attention, because we are not certain that we understand the contention of the bank in this respect. The homestead right is a right given by statute, and can only be 2. HOMESTEAD: eliminated in the manner provided by the waiver: statute. We have set out heretofore the unauthorized provision of this note with reference to this decree. question. As we construe this provision of the note, it is a waiver of the homestead right: that is, a declaration on the part of Daniel and Ellen Phillips that they would not claim any homestead right in any particular property, as against this debt. This is the most that can be claimed for it, as we view it. It does not even purport to give the bank a lien, or to create a lien on any particular property. *Page 376
This being true, the claim of the bank that the court erred in not decreeing the debt to be a lien on the property is erroneous. The ruling of the court was right. There is no authority in the writing, and we know of none under the law, which would permit the court, under these circumstances, to decree this debt a lien upon the property. It was not so contracted to be, and the farthest the court could go would be to enforce the terms of the contract. Hence the ruling of the district court on this question was right. — Affirmed on both appeals.
EVANS, C.J., and De GRAFF and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430665/ | Joshua G. Williamson died testate, June 16, 1907. His will, dated October 10, 1904, was duly admitted to probate. The wife of William G. Williamson died November 15, 1896. William G. Williamson, one of the devisees, around whose devise this cause gravitates, died June 24, 1924, leaving no child born to him.
The claimant, Ethel Holdcroft, neé Augusta Johnson, born May 16, 1881, was adopted by formal articles of adoption, duly acknowledged and recorded January 5, 1885. Ethel was married to one E.W. Holdcroft June 26, 1898, and thereafter had a home of her own.
We first turn to the challenge of the heirs at law of Joshua G. Williamson, decedent, that the claimant, Ethel Holdcroft, has no rights by virtue of her alleged articles of adoption. We are not here concerned with the right of property that may be acquired under contractual provisions of a writing that falls short of a statutory instrument of adoption. Morris v. Trotter, 202 Iowa 232; Kisor v. Litzenberg, 203 Iowa 1183. The adoption of a child can be legally accomplished only by the observance of statutory requirements. In the case at bar, the claim asserted is not based on the right of inheritance of an adopted child, but on her status, as such, under the will of a person to whom the claimant is a stranger to the blood of the testator.
The record discloses that, in the year 1885, the devisee, William G. Williamson, by articles of adoption signed by himself and the mayor of the incorporated town of Sloan, Woodbury County, Iowa, adopted Augusta Johnson, and by said articles gave unto said child the name of Ethel Augusta Williamson.
Section 2308, Code of 1873, in force and effect at the time of the adoption, provided:
"* * * if both parents be dead, * * * then the consent of the mayor of the city where the child is living, or, if not in a city, then the clerk of the circuit court of the county where the child is living, shall be given to such adoption by an instrument in writing signed by the parties or party consenting, and stating the names of the parents, if known, the name of the child, if *Page 774
known, the name of the person adopting such child, and the residence of all if known, and declaring the name of which such child is thereafter to be called and known, and stating also that such child is given to the person adopting, for the purpose of adoption as his own child."
It is provided by Section 2309, Code of 1873, that such instrument shall be in writing, signed by the person adopting, and acknowledged by all the parties thereto in the same manner as deeds affecting real estate, and shall be recorded in the recorder's office in the county where the person adopting resides.
It is sufficient to state that the statutory provisions for adoption of the child in question were respected, unless the impeachment of said articles is well based for the assigned reason that the articles were signed by the mayor of an incorporated town, and not by the then clerk of the circuit court, as required by the statute, Section 2308, Code of 1873. The decision in Webb v. McIntosh, 178 Iowa 156, is stare decisis
on this appeal. It is therein held that the articles of adoption signed by the mayor of an incorporated town for the purpose of consenting to the adoption of a child are invalid, under the statute in question.
Whatever may be the rule otherwise, in the absence of an expressed intention on the part of the testator to devise the property to appellee, she can, under the holding in the Webb
case, supra, claim nothing under or by virtue of the alleged adoption.
All the justices concur that the judgment entered should be reversed, and it is — Reversed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430550/ | Plaintiff, appellant herein, Martha Shirkey, brought suit against Keokuk County, and against Ned Wood, J. Forest Embree and Fred X. Kendall, members of the Board of Supervisors of said County, and William Kelly. Suit was commenced on the 24th day of November, 1936, and later a substituted petition was filed in said action.
The petition set forth that on December 4, 1935, at more than thirty minutes after sunset on said day, the plaintiff was riding in a Ford V-8 automobile owned and driven by her husband and traveling north on the county road about one and a half miles northwest of Richland, in Keokuk County, Iowa; that William Kelly, defendant, was an employee of Keokuk County, under the direction of the supervisors, consisting of Wood, Embree and Kendall, and he was driving or operating a tractor on the left or east side of the road traveling in a southerly direction; that Kelly negligently, recklessly, carelessly, and unlawfully, and in an incompetent manner, drove or operated the tractor pulling a maintainer, at a high rate of speed for such a vehicle, without lights as required by law, or without lights being carried or displayed upon said tractor, or upon the maintainer; and in driving on the left side of the road, when the evening was quite dark, and thereby causing the tractor to crash into the automobile in which the plaintiff was riding; and by reason of such careless, reckless, negligent, unlawful and incompetent operation of said tractor and maintainer by Kelly a collision was caused, whereby plaintiff was crushed, broken, rendered sick, ill and disabled.
The petition alleged the tractor and maintainer were the property of Keokuk County, and that Kelly was hired by said county and the Supervisors thereof, to operate said machinery, when he was incompetent and incapable of handling same at the time of the collision; and that it was dangerous to the public for him to be allowed to operate such machinery on the highway, all *Page 1161
of which facts were well known to the defendants Wood, Embree and Kelly, and to Keokuk County and the Board of Supervisors prior to the time Kelly was hired, and prior to the time of the collision.
The petition further set out that the county road referred to was open to traffic by the public; that at the time of the collision the said tractor did not carry and was not equipped with two red danger signals, lanterns or lights, each capable of remaining continuously lighted for at least sixteen hours; and that at the time of the collision the maintainer was without two red danger signals so displayed, and did not carry, nor was equipped with, any red danger signals, lanterns or lights. It alleged that the supervisors knew the tractor and maintainer were not equipped with two red lights, each capable of remaining continuously lighted for at least sixteen hours, and knew that said tractor was being frequently operated after sunset and before the next following sunrise upon a public highway open to traffic by the public.
The plaintiff charged the supervisors with knowledge of these things, and alleged that by reason of the careless and incompetent operation of this tractor and the maintainer by Kelly, and under the direction of the board of supervisors, Wood, Embree and Kendall, plaintiff suffered great injuries. The petition set out items of damage, expenses incurred, and prayed for judgment in the sum of $26,446.60, with interest.
Three demurrers were filed: one demurrer of William Kelly, another demurrer by Keokuk County, and a third demurrer by the Board of Supervisors.
The grounds of the demurrer of Keokuk County were: (1) that it was an attempt to impose civil liability on the defendant, Keokuk County, for the alleged negligence of a governmental duty, and that the defendant Keokuk County could not be held responsible for the negligence of its officers or employees; (2) that plaintiff was attempting to hold Keokuk County liable for the alleged negligence of its employees and agents in the operation of a tractor and maintainer belonging to and operated on the roads of said county, and was an attempt to hold the defendant county responsible for the performance of a governmental duty imposed by law; (3) that the defendant is a governmental agency and as such is not responsible for the torts of its officers, employees, agents or servants; (4) that there is no *Page 1162
liability fixed by statute on the defendant county for damages in a civil suit as a result of negligence on the part of its officers, employees, agents or servants; (5) that the defendant Keokuk County is a quasi municipal corporation, and a creature of statute, suable only when statutory provision is given, and that the facts set out in plaintiff's petition do not bring the case within any statute which allows suit against a county, and that there is no statute in this state under which plaintiff may recover from the defendant Keokuk County, for the negligence of its officers or employees while engaged in the maintenance of the public highways; (6) that the facts stated in plaintiff's substituted petition do not entitle her to the relief demanded, or to any relief; (7) that the plaintiff in her substituted petition seeks to impose upon the defendant county a liability which is unknown to the law; (8) that there are no facts set forth in plaintiff's substituted petition that shows Keokuk County was guilty of any negligence for which it could be required to respond in damages to the plaintiff; (9) that there are no facts set forth in plaintiff's substituted petition that show that Keokuk County, or any of its officers or employees did any act or omitted doing any act which caused damages to plaintiff for which Keokuk County is liable in a civil suit for damages; (10) that the defendant Keokuk County is an involuntary subdivision of the state created by statute for governmental purposes and is immune from civil liability for negligence in the performance of its governmental duties.
The members of the board of supervisors filed a demurrer on ten grounds, to wit: (1) that it was an attempt on the part of plaintiff to impose liability on the three supervisors for alleged negligence in the performance of a governmental duty; (2) that there is no liability fixed by statute upon said supervisors for damages in a civil case as the result of alleged negligent operation of a county tractor and road maintainer upon the highways of the county; (3) that the supervisors were officers of Keokuk County, said county being an involuntary territorial and political division of the sovereign state and created by statute for governmental purposes, and that since Keokuk County is not liable for damages for performing its governmental acts in a negligent manner, it follows as a matter of law that the defendants Wood, Embree and Kendall, being its officers as members of its board of supervisors, cannot be held liable for such *Page 1163
alleged negligence; (4) that there is no statute which allows or permits suit against the county or against the individual members of its board of supervisors to recover damages against the defendants Wood, Embree and Kendall, for their negligence in the performance of a governmental duty of causing a tractor and road maintainer to be operated upon the roads of the county; (5) that the alleged negligence of the defendants Wood, Embree and Kendall was in the actual performance of a governmental function imposed by statute and no legal liability attaches therefor; (6) that the facts stated in plaintiff's substituted petition do not entitle the plaintiff to the relief demanded, or to any relief; (7) that plaintiff's substituted petition seeks to impose upon said defendants a liability which is unknown to the law; (8) that there are no facts set forth in plaintiff's substituted petition that show the defendants Wood, Embree and Kendall are or were in any way guilty of negligence for which they could be required to respond in damages to the plaintiff; (9) that there are no facts in plaintiff's substituted petition that show said defendants did any act or omitted doing any act which caused damage to plaintiff for which said defendants are liable in a civil suit for damages; (10) that Keokuk County is an involuntary subdivision of the state created by statute for governmental purposes and is immune from civil liability for negligence in the performance of its governmental duties and this immunity extends to its officers, agents or employees.
The demurrer of William Kelly set forth practically the same grounds as set forth in the demurrer of the supervisors of Keokuk County.
The demurrers came on for hearing, and after argument were submitted to the court, and each and all of said demurrers were sustained, to which plaintiff excepted.
The plaintiff elected to stand upon her substituted petition, and on the same day judgment against plaintiff in favor of defendants was entered for costs. Plaintiff excepted. Appeal was served in proper time, and this case is here for hearing on this record.
We will first discuss the question of the liability of the county, in cases of this character, and decide the questions arising under the demurrer of the county.
This court has had these propositions before it in various forms from an early date. In Wilson Gustin v. Jefferson *Page 1164
County, 13 Iowa 181, this court held that where the question was up on demurrer by the county, claiming nonliability of the county, that the county was liable for injuries caused by the unsafe condition of a bridge, and this decision stood and was recognized in a way binding until in the case of Post v. Davis County, 196 Iowa 183, 191 N.W. 129, 194 N.W. 245, where there was a judgment for damages against the defendant county for personal injuries arising out of a defective county bridge. The county appealed from the ruling of the lower court, and this court reversed the district court, and the rule was thereby changed.
However, in Kincaid v. Hardin County, 53 Iowa 430, 433,5 N.W. 589, 591, 36 Am. Rep. 236, where Hardin County was sued for injuries in a courthouse due to the unskillful and negligent manner in which a stairway was constructed, and because of the gross negligence of the defendant county in not lighting and properly guarding said stairway, whereby the plaintiff, without fault, fell from the top of the stairway to the floor below and was severely injured, the court held that the action could not be maintained. In this Hardin County case the opinion had this to say of the case of Wilson Gustin v. Jefferson County, supra, to wit:
"That case has been followed in a number of other cases down to the present time, although exhaustive arguments have been made insisting that it should be overruled, as against not only the weight but the whole current of authority. As often as the question has been made, the rule has been adhered to without deviation."
Calling attention to what was said in Huston v. Iowa County,43 Iowa 456, 459, the court quoted:
"We have no inclination now to review, either for the purpose of fortifying or overturning a case which has for so long a time, in so many instances, and in so deliberate a manner, been sanctioned and followed."
The plaintiff in the Hardin County case insisted that the principles laid down in the Jefferson County case should control. In the Hardin County case the court said:
"It must be admitted that a distinction in principle between *Page 1165
an injury resulting from a defective county bridge, and one caused by a defective and improperly constructed courthouse, is not very plain nor easily demonstrated. But as the line of decisions in this state as to the liability for defective bridges stand almost if not quite alone, as we have seen, we have no disposition to carry the doctrine further than is necessary to sustain the decisions of the court, which have stood so long that it may truthfully be said they have the implied sanction of the lawmaking power and the people of the State."
Again, in Krause v. Davis County, 44 Iowa 141, the court said, when the rule in the Jefferson County case was attacked:
"The first decision on this subject was made in Wilson Gustin v. Jefferson County, 13 Iowa 181, and the last in Huston v. Iowa County, [43 Iowa 456], not yet reported. Between these there have been some ten other cases involving the same question determined. During this time the members of the court have frequently changed, notwithstanding which the first decision made has been steadily adhered to, and at no time has there been a dissenting opinion filed. Besides this, the decisions have been made at intervals through a period of fifteen years, and the General Assembly has not seen proper to in any manner, as it was entirely competent to do by legislative enactment, relieve counties of this burden. We must, therefore, presume that the principle announced in these decisions has met the approbation of the people of the State."
Since that time Post v. Davis County, 196 Iowa 183, 186,191 N.W. 129, 131, 194 N.W. 245, has been decided. This was an action for damages against the defendant county for personal injuries to plaintiff resulting from a defective county bridge. There was a verdict for plaintiff and judgment thereon, and same was reversed by the supreme court. The opinion by Judge Evans pointed out:
"The general purpose of the new highway legislation is to unify the development and improvement of the highways of the state into one general and consistent scheme. This scheme contemplates a division of the burden, as between county and township and state and Federal government. The supreme administrative authority is retained by the state, and is exercised through its duly appointed officials, the state highway commission. *Page 1166
The local administrative authority is vested largely in the board of supervisors, and to some extent in the township trustees. All acts of the board of supervisors are submitted to the advance approval of the highway commission. While power is conferred upon the boards to build bridges in their respective counties, yet this power is subordinated to the supervision of the highway commission, and must be exercised pursuant to plans and specifications furnished by such commission. The roads of a county are classified as primary and secondary, and as county and township. But the supreme authority in the classification is the highway commission of the state, and not the board of supervisors. This classification is adopted for the purpose of * * * acquiring uniformity and connection of highways as between adjoining counties."
The opinion then points out how the board is to construct all bridges upon township or county roads, and says, "also there areno county bridges, within the meaning of the law as it was prior to 1913. In other words, it may be said with equal plausibility that all bridges are county bridges under the new law, and that none are county bridges within the meaning of the law as it was."
It was held in this opinion that the county was no longer liable for a defective county bridge on any ground whatever. All other forms of liability against the county had been excluded by the decisions.
This court had occasion to pass upon some of these questions in the case of Larsen v. Independent School District of Kane Township, 223 Iowa 691, 272 N.W. 632, in an opinion filed April 6, 1937. In this case it was attempted to hold a school district liable for the loss of life of plaintiff's decedent in an Armistice Day celebration, by reason of the negligence of the school district officers, and by the claimed maintenance of a nuisance. Many of the authorities were not cited in this case, but the result of the case was that there was no liability on the district, by reason of the failure of the officers, or the negligence of the officers, on account of the fact that the school district was a quasi corporation and could not be held for the negligence of its officers. There really was no evidence in that case, however, of any nuisance having been maintained.
In the case of Kincaid v. Hardin County, 53 Iowa 430, 431, *Page 1167
supra, this court quoted approvingly from Addison on Torts, Vol. 2, page 1298, as follows:
"A plainly marked distinction is made, and should be observed, between municipal corporations proper, as incorporated villages, towns and cities, and those other organizations, such as townships, counties, school districts and the like, which are established without any express charter or act of incorporation, and clothed with but limited powers. These latter political divisions are called quasi corporations, and the general rule of law is now well settled that no action can be maintained against corporations of this class by a private person, for their neglect of public duty, unless such right of action is expressly given by statute."
The case then says, "That municipal corporations proper are liable to an action for damages in such cases is settled beyond all question", and further says, "We are aware that this distinction has not been taken in any of the cases determined by this court, but it seems to us to be sound, and unwilling as we are to extend the liability of these quasi corporations further than already obtains, which, if done, must inevitably lead to inextricable complications arising in actions for all possible negligent acts, we conclude that the ruling of the District Court should be affirmed." Thus the court absolves the county from liability.
Section 65 of Vol. 1 of Fletcher's Cyc. of Corporations, is as follows:
"Counties are involuntary organizations, as political subdivisions of the state, for governmental purposes. While, to a certain extent, they are invested with corporate powers, such as holding property and making contracts for county purposes, because of their imperfect powers in many states they are not corporations in the proper sense, but are properly designated as quasi-corporations, or their governing and controlling boards, variously named, are the quasi-corporations and act as such. In other states, however, they are public or municipal corporations. Whether or not a county is a public corporation or a political subdivision, it is not within some of the statutory classifications of corporations.
"For the same reason which applies to counties, towns or townships are generally considered quasi-corporations. Limited *Page 1168
powers are conferred upon them, such as the power to make certain contracts, and to sue and be sued. Town supervisors, and overseers or trustees of the poor, have also a quasi-corporate status. There are instances of towns incorporated and with special franchises. The word `town' is not here used in the sense of an incorporated city or village.
"It has been said in a preceding section that school districts are not to be regarded as private corporations, but so far partake of the character of public corporations that they are deemed to belong to the class of quasi-corporations, or the school trustees or boards are so regarded, unless the legislature has made them a corporation. As to the extent to which they are to be considered as endowed with corporate capacity, they have been held to be quasi-corporations created by statute for the purpose of executing the general laws and policy of the state, which require the education of all its youth. In some states, however, they are public corporations."
What does the Hardin County decision mean? It would seem that it means that political corporations, such as counties and school districts, are not liable as municipal corporations are, or as individuals are. That it was meant in these decisions to exclude such actions as are here presented, actions in tort, from holding these quasi corporations liable. It does not go to the peculiar form of the negligence, or the wrong that was claimed to have been committed, but it goes to the question of liability of suchquasi corporations of this character, in that class of cases arising from injuries such as are claimed here, and out of the claimed negligence or wrongful acts, whether by nonfeasance, misfeasance, or malfeasance, and excludes the right of recovery upon any such grounds as against any such corporations. Such is the logic of the rule. This conclusion is fully supported, we think, by Kincaid v. Hardin County, 53 Iowa 430, 5 N.W. 589, 36 Am. Rep. 236; Larsen v. Ind. School Dist. of Kane Twp., 223 Iowa 691,272 N.W. 632; Post v. Davis County, 196 Iowa 183,191 N.W. 129, 194 N.W. 245; Lane v. Dist. Twp. of Woodbury, 58 Iowa 462,12 N.W. 478; Green v. Harrison County, 61 Iowa 311, 16 N.W. 136; Nutt v. Mills County, 61 Iowa 754, 16 N.W. 536; Lindley v. Polk County, 84 Iowa 308, 50 N.W. 975; Dashner v. Mills County,88 Iowa 401, 55 N.W. 468; Wenck v. Carroll County, 140 Iowa 558,118 N.W. 900; Snethen v. Harrison *Page 1169
County, 172 Iowa 81, 152 N.W. 12; Hilgers v. Woodbury County,200 Iowa 1318, 206 N.W. 660.
In Hilgers v. Woodbury County, supra, the court said:
"It is a well established rule in this state that counties are not liable for torts growing out of the negligent acts of their agents or employees. The rule has been applied in a variety of cases and under different circumstances, and it is not necessary that we review the authorities so holding. No statute has been enacted extending the liability of counties to meet such circumstances as are disclosed in the instant case. The trial court was correct in holding that the county could not be held liable for the torts of its officers, agents, or employees." Citing Soper v. Henry County, 26 Iowa 264; Kincaid v. Hardin County, 53 Iowa 430, 5 N.W. 589, 36 Am. St. Rep. 236; Green v. Harrison County, 61 Iowa 311, 16 N.W. 136; Lindley v. Polk County, 84 Iowa 308, 50 N.W. 975; Packard v. Voltz, 94 Iowa 277,62 N.W. 757, 58 Am. St. Rep. 396; Wilson v. Wapello County,129 Iowa 77, 105 N.W. 363, 6 Ann. Cas. 958; Wenck v. Carroll County,140 Iowa 558, 178 N.W. 900; Wood v. Boone County, 153 Iowa 92,133 N.W. 377; 39 L.R.A. (N.S.) 168, Ann. Cas. 1913d 1070; Snethen v. Harrison County, 172 Iowa 81, 152 N.W. 12; Cunningham v. Adair County, 190 Iowa 913, 181 N.W. 20; Post v. Davis County,196 Iowa 183, 191 N.W. 129, 194 N.W. 245; Brown v. Davis County,196 Iowa 1341, 195 N.W. 363; Van de Walle v. Tama County,198 Iowa 1330, 201 N.W. 44; Board of Com. of Hamilton County v. Mighels, 7 O. St. 109.
Snethen v. Harrison County, 172 Iowa 81, 152 N.W. 12, 13, lays down the rule that if counties are to be made liable for negligence in the construction and maintenance of public highways, as distinguished from bridges and the approaches thereto, it must be by legislative enactment. For more than a half century this court has persistently and consistently refused to declare a county liable for negligence in the performance of its governmental functions, with the single exception of negligence in the construction and maintenance of bridges and approaches thereto.
The opinion says, "`Counties are involuntary political or civil divisions of the state, created by general statutes, to aid in the administration of the government. They are essentially public in their character and purposes. They are simply governmental *Page 1170
auxiliaries, created bodies corporate "for civil and political purposes only." Rev. § 221. To the statute they owe their creation, and the statute confers upon them all the powers which they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject.'" And then says, "`It is for this reason that they are ranked among what have been styled quasi corporations. This designation is employed to distinguish them from private corporations aggregate, and from municipal corporations proper, such as cities, acting under general or special charters, more amply endowed with corporate life and functions, conferred in general at the request of the inhabitants of the municipality for their peculiar and special advantage and convenience. The decisions of the courts in every state of the Union, recognizing this distinction, hold incorporated cities and towns to a much more extended liability than they do counties, school and road districts, even where the latter are declared to be invested with corporate capacity.'"
[1] We do not see how, in view of these holdings of our court, that counties and school districts, which are only quasi corporations, can be held liable in actions resulting from the negligence or misdoing of any kind, of any of their officers, agents or employees.
There is a distinction between counties and incorporated towns and cities; the latter having full corporate capacity; they are held liable for their acts. For instance, cities and towns must keep safe streets, and it is negligence for them not to do so, and in that event, one injured by the negligence of the city to keep its streets in a safe condition, may have his action against the city or town.
In this case many decisions have been cited to us from other states, and from this state, laying down the rule as against cities and towns. But in our view of the case these decisions are not applicable here on account of the differences between the character of the corporations, cities and towns and counties and school districts, the latter two being merely quasi corporations, against which actions of this character cannot be maintained.
[2] The question as to whether or not the corporation is exercising governmental functions does not have, in our view, the same bearing in this case that it would have in a similar case against a city or town. The city or town may, in the exercise *Page 1171
of its governmental function, be absolved from liability. The absolution from liability of a county or school district, does not rest upon this ground; it rests upon the ground that the county or school district is simply a quasi corporation and not clothed with full corporate powers, and it cannot be sued in cases of this character without regard to the question whether or not they are in the exercise of a governmental power or duty.
[3] Another question involved here is as to the effect of the statutes cited and relied upon by the plaintiff in this action. These sections are 5055-b1, 5055-b2 and 5044 of the Code of 1935. The first two sections are as follows:
"5055-b1. Road machinery — lights required. No tractor, motor truck, road grader, road drag, or other piece of road machinery operated by gasoline, kerosene, or coal shall be used upon any public highway in this state which is open to traffic by the public, unless there is carried at least two red danger signal lanterns or lights, each capable of remaining continuously lighted for at least sixteen hours.
"5055-b2. Number of lights — duty to maintain. It shall be the duty of each person charged with the operation of any tractor, motor truck, road grader, road drag, or other piece of road machinery which is required by section 5055-b1 to carry red danger signal lights, to place and maintain in a lighted condition at least one signal light upon the front and one upon the rear of any such tractor, truck, grader, drag, or other piece of road machinery from the time the sun sets until the time the sun rises the following day, whenever the same is being operated or stationed upon any public highway open to traffic by the public."
We might also add thereto Section 5055-b3 which makes it the duty of the highway commission and board of supervisors of each county, and each road patrolman to enforce the provisions of above sections as to any tractor, truck, grader, or drag or other piece of road machinery under their direction and control. And section 5055-b4 provides punishment for violation of said duties.
Such being the statutes, we do not see how it can be held possible that these statutes in any way alter the propositions arising on account of the character of such corporations as counties and school districts.
In Bateson v. Marshall County, 213 Iowa 718, 723, *Page 1172 239 N.W. 803, 805, two patrolmen were operating a grader in Marshall County, and the individual members of the board of supervisors were made parties, as well as Marshall County. There was a motion to strike the alleged causes of action against Marshall County and the individual members of its board on the ground of misjoinder; likewise a demurrer by the same defendants to the petition as a whole. The injured claimed in the petition damages to an automobile in a collision on the highway with a caterpillar road-grader after sunset, alleging that the statutory provisions requiring lights to be displayed after sunset had not been observed. The lower court sustained both the motion and the demurrer, and plaintiff appealed, and this court affirmed the lower court in an opinion by Judge Evans, who said:
"It will be noted from the foregoing that the duty `to carry' and `to place' the lights and signals is imposed upon the person operating the grader. In Section 5055-b3 a duty is imposed upon the Highway Commission and upon the Board of Supervisors to `enforce' this requirement. The argument for plaintiff at this point is that the failure of the patrolmen to `carry' and `place' the signals at this particular time became a breach of duty on the part of the Board of supervisors and a failure to enforce. We think such an interpretation cannot be put upon the statute without rendering it absurd. Manifestly the duty thus imposed upon the Highway Commission and upon the Supervisors, is governmental. It contemplates and requires good faith on the part of such officials to give effect to these requirements. It cannot mean that every, or any, Member of the Highway Commission, or that any member of the Board of Supervisors, must be personally present at every sunset at the place of every road-grader to see personally that the patrolmen `carry' and `place' the signals upon their graders respectively. * * * Both the Highway Commission and the Supervisors, in the exercise of their governmental duties, had a right to assume that each patrolman in operation of his grader was performing his full duty under the statute, until the contrary fact was in some manner brought to their attention. The mere failure of these patrolmen to carry lights and signals at this particular time, did not of itself constitute a breach of duty on the part of the Supervisors."
As further supporting the conclusions arrived at in reference to the county's liability, we have examined 8 Iowa Law *Page 1173
Bulletin, page 267, wherein, commenting on the overruling of the case of Wilson Gustin v. Jefferson County, 13 Iowa 181, it speaks of having so often been distinguished by criticism, and finally says as to this, "Only three other states seem to have adopted the rule now overthrown in Iowa. Maryland, — Baltimore City v. Baker, 44 Md. 1; Anne Arundel City v. Duckett,20 Md. 468, 83 Am. Dec. 557; Gehringer v. Lehigh City, 231 Pa. 497,80 A. 987, [35 L.R.A. (N.S.) 1127]." The discussion also says, in speaking of House v. Indiana Board of Commrs. of Montgomery City,60 Ind. 580 [28 Am. Rep. 657], holding to the opposite rule, "This and several later cases were, however, overruled." Board of Commrs. of Jasper City v. Allman, 142 Ind. 573, 42 N.E. 206, 39 L.R.A. 58.
Another article, written by Buell McCash, in 10 Iowa Law Bulletin, at page 16, treating of the ex delicto liability of counties in Iowa, goes thoroughly over the decisions in the Jefferson County case, and among other things shows that the decision was arrived at by a misconstruction of an old English case entitled Russell v. Inhabitants of the County of Devon, 2 T.R. 667, the misconstruction being in Grant on Corporations, and was taken by the judge as the doctrine of the original decision which was to the contrary.
This article takes up the history of these cases, including Cunningham v. Adair County, 190 Iowa 913, 181 N.W. 20, and Post v. Davis County, 196 Iowa 183, 191 N.W. 129, 194 N.W. 245, and points out: "After some sixty years' continuance the rule in Wilson Gustin v. Jefferson County [13 Iowa 181] was wholly abrogated."
So in view of these matters hereinbefore set forth, we are of the opinion that the demurrer on the part of Keokuk County, was rightfully sustained.
[4] Attempt is made to hold the supervisors liable by reason of the fact that they employed a man who was not competent to run the tractor. The action of the board of supervisors was in the performance of a governmental duty, and hence cannot be made the basis of an action. Whatever injury was inflicted upon plaintiff, was caused by reason of a collision between the tractor being operated by one Kelly, and the automobile in which plaintiff was riding. There certainly can be no requirement for the board of supervisors of the county, or any other supervising officer, who hires an employee, to follow him up and see that *Page 1174
he does things he is required to do in the performance of his duties. It requires a man of only ordinary intelligence to obey these rules. So that the injury here only happened by reason of the claimed negligence of Kelly in operating the tractor.
In Packard v. Voltz, 94 Iowa 277, 281, 62 N.W. 757, 759, 58 Am. St. Rep. 396, it is held that the county is not liable for negligence in constructing a drain across a highway. As it must act through agents, the agents cannot be liable where the principal is not, though the agent felt malice in doing such work.
The work in this case was the construction of a ditch or drain across a highway. In the opinion in that case the court held the county was not liable, and therein said:
"Legally, the county justifies, in that it has done no act for which it is liable, and hence its agent, through whom it did the act, is for the same reason justified. The same public policy that would give justification to the corporation would extend it to the legitimate means for doing the act. Extended citations might be made as to the liability of servants where both the servant and the employee are negligent, and where such liability is joint, but they do not to any great extent control this case. The case is peculiar because of the exceptional rule which operates to excuse the county from the general rule as to negligence. Importance is attached to the fact that the petition shows that the acts were done maliciously. The averments of malice are as to the defendants Ray and Voltz, and they only show the personal feelings under which they acted. From the petition it is clearly manifest that without the malice the results would have been the same, for it does not appear that the board of supervisors, in its purpose to make the change in the highway, acted otherwise than in good faith, and, independent of the malicious intent."
In Gibson v. Sioux County, 183 Iowa 1006, 1008, 168 N.W. 80, the action was for personal injuries sustained upon a highway, by reason of obstructions negligently placed and permitted and left unguarded by the defendants, as alleged. There was a demurrer to the petition, which was sustained, from which plaintiff appealed.
The highway was located between, or upon the county line of Sioux and O'Brien Counties, and these two counties were joined as defendants, along with a representative of the board of *Page 1175
supervisors, and their employee Gardner. The obstructions were sand and gravel which had been hauled upon the highway for the purpose of building a cement bridge or culvert. The court held the county not liable, and said as to the officers:
"It is argued by appellant that, even though the counties be not liable, yet the members of the respective boards of supervisors and their employee, Gardner, are liable, in that their duties were ministerial, and were negligently performed. We have held to the contrary."
The opinion quoted from Snethen v. Harrison County, 172 Iowa 81,87, 152 N.W. 12, is as follows:
"Agents who perform the governmental functions are no more responsible than an artificial body, — the corporation for which they acted. We see no reason for departing from any of these established rules. The trial court was right in sustaining the demurrers."
The Gibson opinion also quoted from Wood v. Boone County,153 Iowa 92, 99, 133 N.W. 377, 39 L.R.A. (N.S.) 168, Ann. Cas. 1913d 1070, as follows:
"It must certainly be an anomalous doctrine that would exempt a corporation itself from liability for the doing of a lawful act in a negligent manner upon the ground of its compulsory agency in behalf of the public welfare, and at the same time affix liability upon its agent for precisely the same acts done under express authority. We think an instance of such liability is not to be found."
The Snethen case also held that, "unless our new road law imposes liability upon the county either expressly or by fair implication, there can be no recovery. Counties, unlike cities and incorporated towns, are not, as a rule, held liable for torts committed by them, so long as they are acting within the scope of their governmental powers. They are quasi municipal corporations engaged in the performance of governmental functions, and are not responsible for the neglect of duties enjoined upon them, in the absence of statute giving a right of action."
The opinion further stated, "The opinion of the court is that the court below rightly held that the county was not liable to the plaintiff in respect to the injury for which his action was *Page 1176
brought. If the county ought to be held liable in such a case,the remedy must be sought from the legislature."
As the rule in this state is, the agents of the county and the officers are not liable because the county isn't liable, and hence, if it is desired to make the agents liable, the appeal should be to the legislature and not to the courts.
In a case as late as 1934, Hibbs v. Ind. School Dist., 218 Iowa 841,843, 251 N.W. 606, 607, this court held, that the principle that when the officers, servants, or agents of a municipality are engaged in performing a governmental act for and on behalf of the municipality they are not liable in damages consequent on their negligence in doing the act, applies to a person who, with the knowledge and acquiescence of a school board, was operating for the school district a bus in the transportation of children to and from school, even tho the person so operating the bus was acting at the time in lieu of the person with whom the district had actually contracted for the transportation. In this case the court said:
"No case against an employee of a school corporation directly involving personal liability on his part for negligence causing injury to a pupil has been called to the attention of the court. No reason would, however, seem to exist for granting exemption from liability to the employees of other municipal corporations whose negligence has resulted in injuries or damages for which relief is sought, where the same arose while the municipality was engaged in the performance of a governmental function and to deny the same to an employee of a school corporation when similarly engaged."
There are numerous cases cited in this opinion, and in the other opinions referred to as to the exemption of the officers and employees of county or school districts, on account of negligence in the performance of their duties.
Boiled down, the allegations of the petition show that the only thing that contributed to the injury here was the collision between the automobile and the tractor. That was possibly through the personal negligence of Kelly. He, however, did not have his lights lighted, that is true, but the statutes no more hold the county liable, and no more hold him liable when engaged in that capacity, than it would for any other negligent act.
Hence, on the whole case, we conclude that not only was *Page 1177
the court right in sustaining the demurrer of the county, but it was right in sustaining the demurrer of the supervisors, and in sustaining the demurrer of Kelly, and for the reasons pointed out, the decision below should be and is hereby affirmed. — Affirmed.
ANDERSON, KINTZINGER, STIGER, and DONEGAN, JJ., concur.
HAMILTON, C.J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430554/ | This appeal involves the sufficiency of count 2 of plaintiffs' amended petition, filed July 8, 1944, and an amendment thereto. Said count states in substance that the two plaintiffs are daughters of defendant, Claus Schwitzer, who is past eighty-eight years old, of unsound mind, and incompetent to manage his property and business affairs; on November 18, 1941, defendant's daughters, Alvena and Rosie Telsrow, procured defendant and his wife to sign a petition under section 12617, Code, 1939, for the appointment of said Alvena and Rosie as guardians of the person and property of their father and mother, had said petition presented to the district court and an order entered appointing the said Alvena and Rosie guardians of the person and property of their father; since then, Alvena and Rosie have been acting as guardians under that appointment; at all times since some years prior to such appointment, defendant has been entirely under the domination and control of his daughters Alvena and Rosie; when guardians for defendant were appointed on November 18, 1941, defendant was, because of mental incapacity, not a person entitled to petition for a guardian under Code section 12617; defendant, because of his existing mental incapacity, should be adjudicated incompetent and a guardianship based upon such adjudication established.
In the prayer plaintiffs ask that the order of November 18, 1941, be set aside, defendant be adjudged of unsound mind, permanent guardian of defendant's person and property be appointed, and such other orders be made as shall be proper.
Defendant and his guardians, Alvena and Rosie Telsrow, *Page 767
filed a motion to dismiss the above pleading and in support thereof stated in part: Plaintiffs' pleading is an attempt to attack collaterally the prior appointment of guardians and alleges no sufficient cause of action or cause for the appointment of any other guardian for defendant; the pleading shows on its face that a guardian has been appointed for defendant; the method or manner of such appointment is not material in view of the fact that guardians are now acting in the matter; whether defendant is of unsound mind or was when guardians were appointed for him is of no consequence. The court sustained the motion to dismiss on each ground and granted plaintiffs time in which to plead over.
Within the time allowed, plaintiffs filed an amendment to count 2 of their petition, in which they alleged in substance that the order of November 18, 1941, was void because: Defendant was a lunatic at the time and therefore could not petition for the appointment of a guardian; the application purported to be made by defendant and his wife was not in fact their application but was the application of Alvena and Rosie Telsrow, by whose counsel it was presented, and the order was obtained in furtherance of their purpose and design to obtain complete control and dominion over defendant's person and property.
Defendant and his guardians filed a motion to strike the foregoing amendment because it does not add matters sufficient to avoid the insufficiency of count 2 and is an improper collateral attack on the order of November 18, 1941. The court sustained this motion upon each ground. Plaintiffs did not plead further but filed a written election to stand on the record theretofore made and appealed to this court.
[1] I. A vital question presented by this appeal is whether the powers and duties of a guardian appointed under Code section 12617 upon the ward's own application are as broad as the powers and duties of a guardian appointed under section 12614. As stated, count 2 of the petition alleges that since November 1941 defendant has been under guardianship pursuant to a petition signed by him. Concededly, defendant is a fit and proper subject for guardianship. Plaintiffs so allege and seek to have a guardian appointed. Defendant and the acting guardians contend that in view of the existing guardianship *Page 768
it is unnecessary and improper to have another guardian appointed under section 12614.
Plaintiffs seek to avoid defendant's contention by the argument that under the statutes there are two distinct classes of guardianship: a limited one, under section 12617, and a general guardianship based on an adjudication of unsoundness of mind, under section 12614. We are told in effect that the appointment of a guardian under 12617 is insufficient protection for an incompetent because the ward is free to act for himself in certain respects and the guardian is a mere agent.
In our opinion there is no distinction between the powers and duties of a guardian appointed under section 12617 and one appointed under 12614. The statutes make no such distinction and we are powerless to do so. In fact, as we shall point out, the statutes in effect affirmatively provide there is no such distinction. We are compelled, therefore, to reject plaintiffs' contention that there are the two distinct classes of guardianship.
Section 12614, under which plaintiffs seek to have a guardian appointed for defendant, is as follows:
"When a petition, verified by affidavit, is presented to the district court that any inhabitant of the county is: 1. An idiot, lunatic, or person of unsound mind; or 2. An habitual drunkard, incapable of managing his affairs; or 3. A spendthrift who is squandering his property; and the allegations of the petition are satisfactorily proved upon the trial, the court may appoint a guardian of the property of such person."
Section 12617, under which the acting guardians were appointed, reads:
"Any person, other than an idiot or lunatic, may, upon his own application, by verified petition, have a guardian appointed for his person or property, or both, if, in the opinion of the district court or judge to whom the petition is presented, said appointment would inure to the best interest of said applicant."
What is now section 12614, so far as material here, was formerly section 3219, Code of 1897, and section 6670 of the *Page 769
Compiled Code, 1919. What is now section 12617 was originally enacted in 1923 by the Fortieth General Assembly (chapter 199) as an amendment to section 3219, Code of 1897 (the present section 12614), "by adding thereto as paragraph four the following: 4" (here follows substantially what is now section 12617). A year later this section as it stood following this amendment was, by the Fortieth Extra General Assembly (chapter 162, Unpublished Acts), divided into four sections corresponding to the present sections 12614 to 12617, inclusive. The only statutory provision which deals with a guardian appointed on the ward's own application is the present 12617. The identical statutes that prescribe the powers and duties of a guardian appointed under 12614 (on the application of another) also prescribe the powers and duties of a guardian appointed under 12617 (on the ward's own application). This is made clear by section 12613, which reads:
"The provisions of chapters 539 and 540, and all other laws relating to guardians for minors, and regulating or prescribing the powers, duties, or liabilities of each, and of the court or judge thereof, so far as the same are applicable, shall apply to guardians and their wards appointed under sections 12614 to 12618, inclusive."
The important, broad provision of statute prescribing the powers and duties of guardians is section 12581 (formerly section 2250, Code of 1873, with some changes not material here). Bates v. Dunham, 58 Iowa 308, 310, 12 N.W. 309, 310. Section 12581 reads:
"Guardians * * * must prosecute and defend for their wards, may employ counsel therefor, lease lands, loan money, and in all other respects manage their affairs, under proper orders of the court or a judge thereof."
Section 12581, in chapter 539, is made directly applicable by section 12613, heretofore quoted, to guardians appointed under section 12617 as well as those appointed under section 12614.
It must be admitted there is language which gives some *Page 770
support to plaintiffs' contention in three of our cases: Dean v. Estate of Atwood, 221 Iowa 1388, 212 N.W. 371; In re Guardianship of Meinders, 222 Iowa 236, 268 N.W. 537; In re Guardianship of Ridpath, 231 Iowa 977, 2 N.W.2d 651. The actual decisions in these cases are right. The language upon which plaintiffs rely is in the nature of dictum or, in any event, entirely unnecessary to the decisions.
In Dean v. Estate of Atwood, supra, a guardian had been appointed on the application of a mentally competent ward prior to the enactment of what is now section 12617 and before there was any statutory authority therefor. The ward and her guardian, without court approval, contracted with plaintiff to furnish the ward board, room, and other necessaries. We held plaintiff could recover for such necessaries. Before the case was decided on appeal, section 12617 had been enacted and the opinion unnecessarily and by way of dictum states that a guardian appointed under this section (which was in no way involved in the case) is but a trustee or agent of the ward.
This language in the Dean case is quoted in In re Guardianship of Meinders, supra. In the Meinders case the ward and his mother objected to an investment of $2,150, by a guardian appointed under 12617, for a home which the ward had occupied rent free for nearly seven years. Part of that time the mother also occupied the property without paying rent. The ward and his mother investigated the property before it was purchased. Basis of the decision is that the ward, who was competent, and the mother were estopped to object to the investment on the sole ground that it was not made with court approval. For a discussion of the theory of estoppel in such cases, see annotation 128 A.L.R. 4.
In re Guardianship of Ridpath, supra, quotes the same language from the Dean case, as well as from the Meinders case, and observes that a ward for whom a guardian has been appointed under 12617 "is not limited in the same manner in the control of his affairs as in general guardianships." [231 Iowa 983,2 N.W.2d 654.] In the Ridpath case objections were made, after the lapse of some five years, to a transfer *Page 771
of property in California by a guardian appointed under 12617 to a daughter of the ward in return for her agreement to furnish care and nursing to the ward and his wife during their lifetimes. The contract providing for the transfer was duly approved by the court and the only lack of formality was failure of court approval of the deeds to the California property. We held the belated objections to the guardian's report of his doings in the matter were properly overruled.
It is doubtless true that a guardian, whether appointed under 12614 or 12617, is in some respects a trustee or agent. See 25 Am. Jur. 8, section 4; 2 Am. Jur. 15, section 5; 39 C.J.S. 8, 9, section 1; 2 C.J.S. 1027, section 2c. But it is not accurate to say that a guardian appointed under 12617 is "a mere" trustee or agent. We now hold that a guardian so appointed is in fact a guardian with all the powers and duties of a guardian appointed under 12614. The ward is as fully protected by a guardianship established under 12617 as by one under 12614. In support of our holding see Foss v. Twenty-five Associates of Roxbury,239 Mass. 295, 131 N.E. 798; State v. Madison Circuit Court, 193 Ind. 20,138 N.E. 762.
[2] II. Count 2 of the petition as amended alleges that the 1941 order is void because defendant was a lunatic and therefore could not petition for a guardian. The allegation that the order is void is, of course, but a legal conclusion, not admitted by the motions, unless the pleaded fact that defendant was a lunatic warrants the conclusion. 41 Am. Jur. 302, 303, section 19; 41 Am.Jur. 461, section 243; Bogaard v. Independent Dist., 93 Iowa 269,271, 272, 61 N.W. 859.
Since the petition alleges that defendant was a lunatic and he was therefore a proper subject of guardianship at the time the guardians were appointed, and that is still his condition, it would seem to be of no consequence that defendant was a lunatic in 1941, in view of our conclusion in Division I that the existing guardianship has the same legal effect as if the appointment had been made under section 12614. The substance of plaintiffs' contention is that a guardian should have been appointed under 12614. At least, plaintiffs now seek such appointment. Under the pleaded facts, it seems to *Page 772
us not material at this time that the appointment was under 12617 rather than 12614.
[3] Further, we think the allegation that defendant was a lunatic at the time the guardians were appointed is an unallowable attempt to attack collaterally the 1941 order. In Brown v. Tank, 230 Iowa 370, 374, 297 N.W. 801, 803, 804, we quote with approval the following from 34 C.J. 520, section 827:
"`A direct attack on a judgment is an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same court; and the fact that other incidental relief is also asked is immaterial. * * * A collateral attack is an attempt to impeach the judgment by matters dehors the record, in an action other than that in which it was rendered; an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it * * * In other words, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral.'"
And at page 375 of 230 Iowa, page 804 of 297 N.W., this is quoted with approval from 31 Am. Jur. 205, section 611:
"` * * * a collateral attack upon a judgment is an attack made by or in an action or proceeding that has an independent purpose other than the impeaching or overturning of the judgment, although impeaching or overturning the judgment may be necessary to the success of the action.'"
Applying the foregoing tests here, the attempt is to impeach the 1941 order by matters outside the record, in an action other than that in which the order was made, brought some two and one-half years later, having for its purpose an adjudication of mental incapacity and the appointment of a new guardian for defendant. It is not claimed there is any statutory authority for the bringing of the action. Our conclusion that this is a collateral attack finds support not only *Page 773
in Brown v. Tank, supra, but also in In re Estate of Riese,230 Iowa 397, 297 N.W. 796; Ferguson v. Connell, 210 Iowa 419,230 N.W. 859; Newcomer v. Newcomer, 199 Iowa 290, 292, 293,201 N.W. 579; In re Estate of Kladivo, 188 Iowa 471, 176 N.W. 262, and cases cited in those opinions; 1 Freeman on Judgments, Fifth Ed., 604-610, section 306.
Plaintiffs argue that even if their attack on the previous order is collateral, it may be maintained because the order is void for want of jurisdiction. In our opinion, however, the 1941 order is not void. It is true that a lunatic is not entitled under 12617 to petition for a guardian. However, it must be presumed unless the contrary appears from the record that when the petition was presented to the probate court, it found that defendant was a person entitled to file the petition. It is not claimed the record indicates that defendant was a lunatic at the time.
In making the order the court necessarily found that defendant was not a lunatic and that it had jurisdiction to appoint the guardians. That defendant was entitled to petition for a guardian was one of those jurisdictional facts which the court was required to determine and such determination is final unless set aside upon appeal or other direct attack. See authorities last above; also, Dean v. Estate of Atwood, supra, 221 Iowa 1388,1390, 212 N.W. 371, 372, where one not authorized by statute petitioned for a guardian for himself, and we said:
"Although the order of appointment * * * may be viewed as improvident and inadvertently entered, it must be considered at this time as a verity."
See, also, Soules v. Robinson, 158 Ind. 97, 62 N.E. 999, 92 Am. St. Rep. 301; Wolf v. Gills, 96 Okla. 6, 219 P. 350.
In this connection we may observe that the district court when sitting in probate is a court of general jurisdiction and the same prohibition against collateral attack applies to judgments in probate as to those in law and equity. Erwin v. Fillenwarth,160 Iowa 210, 215, 137 N.W. 502, and cases cited; Marsh v. Hanna,219 Iowa 682, 684, 259 N.W. 225; 34 C.J. 518, section 824; 34 C.J. 545, section 846. *Page 774
[4] III. The amendment to count 2 also alleges that the 1941 order is void because the application which purported to be made by defendant and his wife was not in fact their application but was the application of Alvena and Rosie Telsrow, and the order was obtained in furtherance of their purpose to obtain control over defendant's person and property. This allegation must be considered in connection with the allegation of count 2 that Alvena and Rosie "procured" defendant and his wife to sign the application, and adds little if anything to this part of the former pleading.
Just what plaintiffs claim for these allegations of count 2 and the amendment is not clear. There are authorities to the effect that where the court is induced by fraud and deception to assume jurisdiction, the judgment so obtained is void and may be collaterally attacked. It is sometimes said that an attack on a judgment is direct where the attack is based on fraud practiced in inducing the court to assume jurisdiction. See Reidy v. Chicago, B. Q.R. Co., 216 Iowa 415, 418, 249 N.W. 347; Beeman v. Kitzman, 124 Iowa 86, 88, 99 N.W. 171; 1 Freeman on Judgments, Fifth Ed., 613, 615, section 308; 31 Am. Jur. 191, 192, section 595. Plaintiffs do not invoke this theory in argument and we are not inclined to hold that it is applicable here. We think these allegations also constitute an unwarranted collateral attack on the 1941 order. As having some bearing, see Reidy v. Chicago, B. Q.R. Co., supra; Montagne v. Cherokee County, 200 Iowa 534,537, 538, 205 N.W. 228.
In our opinion, count 2 of plaintiffs' petition was properly dismissed and the amendment thereto properly stricken. — Affirmed.
MILLER, C.J., and OLIVER, BLISS, WENNERSTRUM, SMITH, MANTZ, and MULRONEY, JJ., concur.
HALE, J., not sitting. *Page 775 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430563/ | This cause was submitted upon a stipulation of facts, from which it appears that, on or about the 1st day of May, 1921, the appellee borrowed $500 from the appellant, and executed and delivered to the appellant his promissory note 1. CONVERSION: for said amount, and, to secure the payment acts thereof, delivered to the appellant, as constitu- collateral security, five bonds of the Farm ting: Publishing Company, of the par value of $100 treating each. The said bonds were part of a series of a collateral total of $51,000, executed by the Farm security as Publishing Company, all of which were secured by one's own. a trust deed of the property of the said Farm Publishing Company. Subsequently, the trustee brought an action to foreclose the said trust deed for the benefit of all of the bondholders, and in due time a decree was entered, directing the sale of the property of the said Farm Publishing Company that was security for said bonds under the said trust deed. A receiver was appointed to sell said property. The mortgaged property was appraised, and sold at receiver's sale. The appellant, acting for himself and certain other bondholders, bid for said property $2,500 more than the outstanding bonds, and delivered all of said bonds to the receiver, and paid said additional amount of $2,500 in cash. Prior to said sale, the appellant executed and delivered to the receiver a written instrument, authorizing the receiver to select a person to represent him and other bondholders in bidding for said property at said receiver's sale. In said written instrument the appellant described himself as being "the owner" of said bonds in question. After said sale, the receiver executed and delivered to the appellant, "as a representative of said bondholders," all of the property sold under said foreclosure. The sale was subsequently approved by the court. Subsequently, the appellant and the other bondholders, but not including the appellee, took possession of said property, and have continued *Page 279
to operate the business through one Talbot, as their agent; and at the time of the trial of this cause, it appeared that unpaid debts amounting to approximately $1,000 had been incurred in the operation of said business. The appellant did not consult the appellee in any manner with reference to the disposal of said bonds, nor did appellee have any notice of said sale, nor did he in any way give his consent thereto.
I. The first question involved here is whether or not, upon this state of facts, the court erred in finding that the appellant had been guilty of a conversion of the appellee's said bonds which were pledged as collateral security with the appellant. The appellant made no attempt to foreclose the pledge by proceeding in any manner as authorized by Chapter 524, Code of 1924. Without any notice whatever to appellee, he assumed to take control of the said bonds which had been pledged with him as collateral security for appellee's debt, and to exercise all the rights of an owner of said bonds. He surrendered them to the receiver appointed under the foreclosure of the trust deed, and placed the same wholly beyond the control of himself or the appellee. In the recent case of Mulenix v. Fairfield Nat. Bank,203 Iowa 897, we said:
"Conversion is any distinct act of dominion or control wrongfully exerted over the chattels of another, in denial of his right thereto. Brown v. Dubuque Altar Mfg. Co., 163 Iowa 343; Leev. Coon Rapids Nat. Bank, 166 Iowa 242; Peninsular Bank v.Citizens Nat. Bank, 186 Iowa 418."
Under the stipulated facts of this case, it must be held, as a matter of law, that the appellant converted the bonds which had been pledged with him as security by appellee. He placed the same wholly beyond the dominion and control of either himself or the appellee.
It is contended in argument that the appellant did no more than change the form of security, and that appellee has a right to an undivided interest in the property which was purchased under the foreclosure sale. It is apparent that there is such a change in the character of the property pledged as to constitute a conversion. The appellee pledged with the appellant certain bonds which were transferable readily by delivery. These bonds have been disposed of by the appellant, and placed beyond the *Page 280
possibility of being restored to the appellee. It is scarcely a sufficient answer to the claim of conversion to say that the appellee might, under proper proceedings, ratify the action of the appellant, and obtain an undivided one-seventh interest, in the nature of a partnership with other parties in a property and business against which there have already accumulated debts of about $1,000. The appellee's claim of a conversion of the pledged security was clearly established, under the stipulated facts. As bearing on the question, see, also, Brown v. Dubuque Altar Mfg.Co., 163 Iowa 343; Iowa Farm Credits Co. v. Peoples Sav. Bank,
196 Iowa, 967; Whigham v. Fountain, 132 Ga. 277 (63 S.E. 1115);Meyer Bros. Drug Co. v. Matthews, 69 Ark. 483 (64 S.W. 264);German Sav. Bank v. Renshaw, 78 Md. 475 (28 A. 281); Allen v.Dubois, 117 Mich. 115 (75 N.W. 443); Upham v. Barbour, 65 Minn. 364
(68 N.W. 42); Woodworth v. Hascall, 59 Neb. 124
(80 N.W. 483); Glidden v. Mechanics' Nat. Bank, 53 Ohio St. 588
(42 N.E. 995).
II. It is not necessary that the pledgor tender payment of the debt before pleading a conversion of the 2. SET-OFF AND collateral by way of a counterclaim. The COUNTER- appellee was not seeking, in this action, to CLAIM: recover the specific property, but pleaded its subject- conversion by the appellant, and sought to matter: recover its value as damages. This he had a conversion right to do, without tendering the amount of the of debt for which the security was pledged. First.
collaterals. Nat. Bank v. O'Connell, 84 Iowa 377.
III. Appellant raises the question that the court erred in finding that the value of the bonds converted by the appellant was $500. This was the face value of the bonds. It is unquestionably true that, as a general rule, the 3. BILLS AND value of the property at the date of the NOTES: conversion is the true criterion of damages. value: Robinson v. Hurley, 11 Iowa 410. In Mulenix v.
presumption. Fairfield Nat. Bank, supra, we said:
"The rule established in this state is that, in the absence of other evidence, the face value of negotiable instruments and other similar choses in action is prima-facie evidence of the value thereof. Callanan v. Brown Co., 31 Iowa 333; Sickles v.Dallas Center Bank, 81 Iowa 408; Dean v. Nichols Shepard Co.,95 Iowa 89; Pelley v. Walker, 79 Iowa 142; Freeman v. *Page 281 Strobehn, 122 Iowa 157; Hubbard v. State Life Ins. Co., 129 Iowa 13. "
Whether or not the bonds in question were strictly negotiable in character, they were such choses in action that at least they were presumed to be of face value. Furthermore, it appears from the record that the appellant disposed of the bonds at their face value, and received property therefor which equaled or exceeded the face value of the bonds. Upon the entire record, we do not think that the court erred in finding that the value of the property converted by the appellant was the face value of the bonds. See Haas v. Bank of Commerce, 41 Neb. 754 (60 N.W. 85);Clark v. Cullen (Tenn. Ch. App.), 44 S.W. 204; Walley v. DeseretNat. Bank, 14 Utah 305 (47 P. 147).
We find no error in the record requiring interference with the judgment of the district court, and it is, therefore, —Affirmed.
STEVENS, C.J., and ALBERT, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430564/ | Reginald S. Tracy and Mabel B. Tracy were married in 1902 and lived together as man and wife until October 3, 1934, when she was murdered by her husband, Reginald S. Tracy, acting through an accomplice. Reginald S. Tracy was indicted for murder in the first degree, to which he pleaded guilty and, under the judgment of the trial court, he was sentenced to be hanged. An appeal was taken from this judgment, and on the 27th day of February, 1935, pending such appeal, this action was instituted. In the petition, the plaintiff, Roy L. Aldrich, as administrator of the estate of Mabel B. Tracy, deceased, asked for damages against the defendant, Reginald S. Tracy, in the sum of $15,000, because of burial and funeral expenses, loss of time and earning power and mental pain and suffering that he alleged resulted from the wrongful attack upon and murder of the decedent. To this petition the defendant demurred on the following ground: "The facts stated in the petition do not entitle the plaintiff to the relief demanded in this cause. The petition shows the intestate and the defendant to have been husband and wife, and the tort to have been committed against the intestate by the defendant, her husband. Under the Iowa law recovery is not allowed under these circumstances." Hearing was had upon this demurrer and, on the 15th day of August, 1935, the demurrer was sustained. On the 21st day of August, 1935, the plaintiff elected to stand on the ruling, refused to plead further, and judgment was entered against him for costs. From this judgment the plaintiff, on September 6, 1935, perfected an appeal to this court. *Page 86
In the meantime, the appeal taken by the defendant in the criminal action, in which he was sentenced to be hanged for the murder of his wife, had been submitted to this court and decision rendered on June 21, 1935, and, following the appeal in the case at bar, the defendant was executed on November 29, 1935. The abstract of record was filed by the appellant on September 19, 1935, and, on the 9th day of January, 1936, appellant filed in this court his brief and argument. Thereafter, on January 28, 1936, the attorneys who had appeared for the defendant and appellee, Reginald S. Tracy, prior to his execution, filed in this court an instrument denominated, "Special pleading and motion to dismiss", in which they designated themselves as amici curiae. In this motion they set out a certified copy of the record in the case of State of Iowa v. Reginald S. Tracy, in which it is shown that said Reginald S. Tracy was executed and died on the 29th day of November, 1935, and that, for that reason, the appeal could not be prosecuted in the name of Reginald S. Tracy, appellee. They also set out the fact that the abstract was not filed within forty days before the time fixed by this court for hearing of this appeal, and asked that the appeal be dismissed. To this motion to dismiss, the appellant filed a resistance and application for a continuance. On February 12, 1936, the appellee's motion to dismiss was overruled and appellant's motion for a continuance was sustained. Thereafter, in March 1936, a will of the deceased, Reginald S. Tracy, was probated in the district court of Delaware county, Iowa, Bennie Worm was appointed as executor thereof, and by proper procedure was substituted as appellee in this case. On April 25, 1936, the appellee filed a new motion to dismiss, and a brief and argument on behalf of Bennie Worm, executor, substituted appellee. On May 2, 1936, the appellant filed a motion to strike the appellee's motion to dismiss, a resistance to said motion to dismiss, and a reply argument. The appellee's motion to dismiss, and the appellant's motion to strike and resistance to appellee's motion to dismiss were not ruled on prior to the submission of the case. We have examined these motions and resistance, and have considered the arguments and authorities cited in support thereof, and it is our ruling that the resistance to the motion to dismiss be sustained, and that the motion to dismiss be and the same is overruled.
On the merits of the case itself, one proposition only is *Page 87
presented for our consideration: Did the plaintiff, as administrator of the estate of Mabel B. Tracy, deceased, have the right to maintain an action against her surviving husband, Reginald S. Tracy, because of the wrongful injuries and death inflicted upon Mabel B. Tracy by the defendant, Reginald S. Tracy? The demurrer is based upon the single ground that no such right existed, for the reason that the petition shows that Reginald S. Tracy and Mabel B. Tracy were husband and wife at the time the tort sued upon was committed, and that, under the laws of this state, a wife cannot maintain a suit or obtain judgment against her husband for damages growing out of a tort committed upon her by him.
It is conceded that no such action could be maintained by the wife against her husband at common law. It is contended by the appellant, however, that the common law restriction has been removed by statutory enactment in this state. The particular statute upon which the appellant relies in this case is chapter 214 of the Acts of the Forty-fourth General Assembly, which appears in the Codes of 1931 and 1935 as section 10991-d1. Appellee, on the other hand, contends that, neither under the language of this section, nor under the decisions of this court, construing previous legislative enactments changing the common law status of women, can the statute relied upon by the appellant be construed so as to entitle a married woman or her estate to maintain an action for damages for personal injuries or death against her husband. In the case of Peters v. Peters, 42 Iowa 182, a wife sought to maintain an action against her husband for tort consisting of various assaults and batteries made upon her by him. At that time there was a statute in this state (section 2204, Code of 1873) which provided that, "Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried." There was a further statute (section 2211, Code of 1873) which provided that, "A wife may receive the wages of her personal labor and maintain an action therefor in her own name, and hold the same in her own right; and she may prosecute and defend all actions at law or in equity for the preservation and protection of her rights and property, as if unmarried." This court held that these statutes did not *Page 88
so change the common law as to authorize the wife to maintain an action for tort against her husband.
Section 2562, Code of 1873, provided that, "A married woman may in all cases sue and be sued without joining her husband with her, and an attachment or judgment in such action shall be enforced by or against her as if she were single." This provision was carried into the Code of 1897 as section 3477. By chapter 163 of the Acts of the Thirty-fourth General Assembly, section 3477 of the Code of 1897 was repealed and section 3477-a of the 1913 supplement to the Code was enacted in lieu thereof. This latter provision was carried into the Code of 1924, but in the recodification it was divided into sections 10462, 10463, and 10464. In 1928 this court had under consideration the case of In re Estate of Dolmage, 203 Iowa 231, 212 N.W. 553. This case involved a claim for damages by the administrator of the estate of Florence Dolmage, deceased, against the estate of her deceased husband, growing out of her wrongful death which was caused by him. The particular provision of the statute which was relied upon in that case, and which it was claimed authorized the maintenance by a wife of a suit against her husband for wrongful injury or death, was section 10462 of the Code of 1924, which provided that, "When any woman receives an injury caused by the negligence or wrongful act of any person, firm, or corporation, including a municipal corporation, she may recover for loss of time, medical attendance, and other expenses incurred as a result thereof in addition to any elements of damages recoverable by common law." In an opinion which considered the provisions of prior statutes concerning the legal status of women, and previous decisions of this court construing such statutes, Mr. Justice Stevens said:
"The right of the wife to maintain an action against the husband for a tort committed during coverture was denied in Peters v. Peters, 42 Iowa 182, decided in 1875. Heacock v. Heacock, 108 Iowa 540, 79 N.W. 353, 75 Am. St. Rep. 273, was an action brought by the wife against the husband, to recover upon a written contract. It was held that the action could not be maintained. The decision in Latcham v. Latcham, 195 Iowa 221, 191 N.W. 977, which was an action upon a promissory note, was decided upon the ground that the instrument was without consideration. There is in this opinion a parenthetical reference to *Page 89
the Heacock case, in which it is indicated that the court was not therein reaffirming or approving the earlier case on the point involved. It is obvious from the holding of the cases cited that none of the statutes enacted prior to section 10462 have been considered by this court as intended to confer a right upon the wife to maintain an action against the husband for a tort committed against her. * * *
"It is urged by counsel that section 10462 is in derogation of the common law, and should, under the statutory rule of this state, be given a liberal construction. Even under a liberal rule of construction, the statute must be construed so as to give effect to the legislative intent. Members of the legislature must be presumed to know the statutes and the decisions of the courts of this state. It would have been an easy matter for the legislature, if it had intended to restore the status of married women, as to their rights to maintain actions against their husbands for damages, to that of unmarried women, to have so stated in clear language, and not have left the matter to doubt or judicial construction. With the wisdom or unwisdom of statutes courts are not concerned. Their meaning and the legislative intent in their enactment are matters for the court's consideration. If the legislature should desire to establish the rule contended for by appellant in this state, it has the power to do so, but the language of the enactment so providing should be sufficiently definite and certain to clearly reveal such to be the legislative purpose and intent. In our opinion, it was not the intention of the legislature, by the enactment of any existing statute in this state, to change the rule of the common law in the particulars in question. The relations of husband and wife to each other are essentially different from those of all other persons, and statutes dealing therewith should be clear and explicit in meaning, particularly when abrogation of a rule of the common law is involved."
By chapter 214, Acts of the Forty-fourth General Assembly, the legislature, in 1931, repealed sections 10462, 10463, and 10464 of the Code of 1927 (which were the same as in the Code of 1924), and substituted in lieu thereof the following:
"Sec. 2. In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the *Page 90
wrongful or negligent injury or death of a man. It is the purpose of this section to remove any common law disabilities or restrictions upon women, or the rights of women, whether single or married, and to give women the same rights and the same status as are possessed by men."
It is the contention of the appellant that, regardless of the decisions of this court in reference to previous statutory enactments, the law as contained in section 2 of chapter 214 of the Acts of the Forty-fourth General Assembly, now section 10991-d1, Code of 1935, clearly shows an intention on the part of the legislature to remove all common law disabilities of women, and that, under this section, the plaintiff has the right to maintain this action for the damages that resulted from the injuries and death of Mabel B. Tracy, which were caused by her husband, Reginald S. Tracy. With this contention, we are unable to agree.
If only the language of certain portions of the statute be considered, it might be possible to agree with the appellant's contention. The statute does say that, "In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions." And it further says that, "It is the purpose of this section to remove any common law disabilities or restrictions upon women, or the rights of women, whether single or married." As said by Mr. Justice Stevens, however, in In re Estate of Dolmage, supra, "members of the legislature must be presumed to know the statutes and the decisions of the courts of this state. It would have been an easy matter for the legislature, if it had intended to restore the status of married women, as to their rights to maintain actions against their husbands for damages, to that of unmarried women, to have so stated in clear language, and not have left the matter to doubt or judicial construction." In view of the previous history of legislation of this kind, and in view of the decisions of this court construing prior statutes in connection with the very question here involved, with all of which the legislature must be presumed to have been familiar, we think it but natural and reasonable to expect that, if the legislature thereafter attempted to change the legal status of women, and, if it intended to obviate the effect of the decisions of this court in previous cases and give a married woman the right to maintain an action for tort against her husband, it would have been able to find *Page 91
language which would express its meaning, and it would have expressed its meaning so clearly as to leave no doubt in the mind of anyone. Not only did the legislature not use language which would convey to one familiar with the previous legislation and decisions of this court the meaning for which appellant now contends, but, by the language which it used, it would appear that the legislature positively intended that the rights which it sought to bestow upon women should be the same as, and no greater than, the rights possessed by men. The statute contains two sentences. The first sentence provides that, "In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as incases of damage because of the wrongful or negligent injury ordeath of a man." (Italics are ours.) The second sentence provides that, "It is the purpose of this section to remove any common law disabilities or restrictions upon women, or the rights of women, whether single or married, and to give women the same rights andthe same status as are possessed by men." (Italics are ours.)
It is well settled, and is not disputed by appellant, that, under the common law, and under the statutes of this state, a married man does not have the right to maintain an action against his wife for injuries inflicted upon him by her. 30 C.J. 714; Peters v. Peters, 42 Iowa 182; Heacock v. Heacock, 108 Iowa 540, 79 N.W. 353, 75 Am. St. Rep. 273; Maine v. Maine Sons Co.,198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161; In re Estate of Dolmage,203 Iowa 231, 212 N.W. 553. We think the language of the statute is so plain that there can be no question but that the legislature meant to place both men and women in the same status as regards their rights to maintain suits for wrongful injuries suffered by them. If either a man or a woman be single, he or she may maintain such action against any other person; but if either a man or woman be married, he or she cannot maintain such an action against his or her wife or husband. We are satisfied that the trial court committed no error in sustaining the demurrer to the plaintiff's petition, and the judgment appealed from is, therefore, affirmed. — Affirmed.
PARSONS, C.J., and ALBERT, MITCHELL, KINTZINGER, RICHARDS, and HAMILTON, JJ., concur. *Page 92 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430566/ | The plaintiff commenced this case in the municipal court of the city of Des Moines, Iowa, in the petition setting forth it was the owner of a note on which there was $168 due, the note being secured by a chattel mortgage upon certain household goods and personal property, and that the chattel mortgage was duly filed for record, and claiming $168 at 3 1/2 per cent interest per month from January 12, 1932, that the defendant Karlen had caused a landlord's writ of attachment to be issued out of the court, and Keeling, sheriff of Polk county, levied on the goods covered by plaintiff's mortgage, and that the plaintiff herein caused a notice to be served on Keeling of the claim for the attached personal property, and that Karlen filed with Keeling an indemnifying bond as the statute provided. The plaintiff further sets out that its lien on the chattel mortgage was superior to any claim of Karlen, and that, by the failure to release the attachment under written notice given, the defendants were guilty of conversion of the property, and that Karlen had taken possession of the property, which was of the value of about $250, and asked judgment for that sum, with interest at 6 per cent.
An amended and substituted answer was filed in which the defendants admitted that the action and attachment were brought by defendant; that direction was given to levy the attachment on the property of defendants therein; admitted the levy by Sheriff Keeling; admitted the giving of bond by Karlen; and set up that Karlen had a mortgage lien on the property. Also set up that the note and mortgage claimed by the plaintiff were void for want of consideration, and void in violation of section 9422 of the Code. The case was tried to the court. It was stipulated that Karlen had begun the action in the municipal court, attachment was issued and placed in the hands of the sheriff, and the levy made on the personal property in possession of defendants in said action, Harry Saylor and Beulah Saylor, and that notice was served on the sheriff demanding a release of the goods levied on. Harry Saylor, who signed the note, testified that the reasonable value of the property was $250 to $275, and on cross-examination testified to signing the note to the Capital Loan Company for $168, and detailed the various items of the property. The plaintiff offered in evidence the note and Exhibit B. On the trial there was a stipulation further entered into between the parties that the Saylors had executed the $168 note bearing 3 1/2 per cent interest per month to the plaintiff, and that to secure the *Page 971
payment of the note executed to the plaintiff a chattel mortgage on certain items of personal property and household goods belonging to them and located at 1417 Forest avenue, Des Moines, Iowa, and that said mortgage was filed for record in Polk county records January 13, 1932.
The abstract of record is quite incomplete. It does not show the chattel mortgage, it does not show a lease under which Karlen claimed, but we gather from the abstract that Karlen claimed his lien under a lease which had in it a clause making the rent on the premises involved a lien on the household goods of Harry Saylor and Beulah Saylor, makers of the note and chattel mortgage, and that these household goods covered by the note and chattel mortgage were levied on under a claim for back rent; that the property was exempt from execution and that the lease under which the claim was made, while signed by husband and wife, was never acknowledged or filed for record, and antedated the note of the plaintiff sued on.
The case was tried by the court. There was practically no dispute of the facts, with the exception of the question of the value of the goods levied on. At the close of the evidence the defendants made a motion to dismiss the case, which was overruled. But the court on submission of the case rendered judgment for plaintiff for $135, with interest at 6 per cent. If there was any jury question in this case, it was submitted to the court, and the finding of the court is therefore conclusive.
[1] The notice of ownership served on the sheriff is questioned, but we find it to be sufficient, and further that the defendants accepted and acted upon the notice. The record shown by the abstract is such that it is hard to tell what was done; hard to tell whether there was any possible error committed in the case. One of the matters set up by the defendants was that the note of the plaintiff was void. We think that the defendants cannot raise this defense. Neither of the defendants was a party to the note. It is the rule in this state, as well as in most states, that such a defense as this cannot be made by one not a party to a note. This is particularly true as to usury. We have checked over the authorities cited, examined the same, and find it to be the universal holding of the courts of this state that one not a party to the instrument which is charged with usury cannot raise that question. This is elementary, and we content ourselves with citing the cases set out in the appellee's *Page 972
reply brief and argument, Sternburg v. Callanan, 14 Iowa 251; Drake v. Lowry, 14 Iowa 125; Carmichael v. Bodfish, 32 Iowa 418; Martin v. Harper, 193 Iowa 259, 186 N.W. 897; Miller v. Clarke,37 Iowa 325.
[2] The sufficiency of the notice served upon the sheriff is questioned. The trouble with that is that our courts have decided that:
"The purpose of the statute [requiring notice] is to enable the officer to obtain a sufficient indemnifying bond, and the notice fulfills the requirements of the law if it accomplishes that purpose." Waterhouse v. Black, 87 Iowa 317, at page 321, 54 N.W. 342.
This is obvious, for the reason that, prior to the enactment of any statute on this subject, if the plaintiff in an attachment proceeding pointed out to the sheriff the property upon which to levy, and the sheriff made a levy thereon, and a third party claimed the property, he could promptly sue the sheriff. These statutes were originally enacted in order that the sheriff might protect himself; that he might call upon the attachment plaintiff for an indemnifying bond, and, not having received such a bond, release the property. He was still subject to the suit, but the plaintiff in the attachment suit then became liable upon the bond furnished. In other words, the sheriff had to take his chances before this legislation was enacted, the chances of being sued; chances of having no one to go back on from whom he could collect.
[3] The question is made of the right of the plaintiff, being a lienholder under a chattel mortgage, to maintain this action, not being the absolute owner. This court decided in Blake v. Chas. Counselman Co., 95 Iowa 219, 63 N.W. 679, that a landlord may recover the value of corn raised on leased premises from one who buys it in ignorance of the fact that the seller is a tenant and that it was raised on the leased premises. In other words, that the lienholder deprived of his rights could maintain such an action and for conversion. Again, in Nickelson v. Negley, 71 Iowa 546, 32 N.W. 487, the same proposition was laid down.
[4] Following the oral submission of this case, the appellant's attorney asked leave, which was granted by the Chief Justice, to file further argument. This was on February 6, 1935, and leave was given to file it within ten days. It was not filed until the 18th day of February, 1935. *Page 973
In that argument the appellant stated in what purported to be a restatement of the facts: "This case is simply a Jew frame-up and should be considered as such". The appellee filed a motion to strike this reply brief and argument for the two reasons stated above. The writer of this opinion had written the opinion before the filing of the reply brief was brought to his attention, but it has been examined and we are of the opinion that the motion to strike should be sustained, not only because not filed in time, but because of the slur contained therein. This slur as to it being "a Jew frame-up" has no foundation in the record at all. Attorneys have no right to go outside of the record and make such remarks and try to inject racial prejudice into a case, and the appellate court should see that this is not done. This court sits to administer justice without regard to race or creed. The Jew, the Gentile, the Christian, the Mohammedan, and all races and religions are supposed to get justice here, and the decisions are not influenced and should not be by any consideration either of race or religion, and for that reason the reply brief filed by appellant will be stricken, and also because it contains nothing which otherwise would be of any value in the case. This court held in Sax v. Drake, 69 Iowa 760, 28 N.W. 423:
"Before proceeding to determine it, it seems proper to advert to an objectionable remark made by the appellant's counsel in the opening part of their argument. The counsel say: `In the first place, it is proper to state that J.B. Sax and Charles Sax are the sharpest clothing dealers among the Jewish merchants of Ottumwa, Iowa.' We take issue with the counsel. It was not only not proper to so state, but it was highly improper. The counsel do not, of course, claim that in this court one rule of law is to be applied in determining the rights of Jews, and a different one in determining other persons' rights. But the remark justifies the inference that the counsel supposed that the members of this court were not Jews, and possibly had a prejudice against them; and possibly, if they had, were not above being influenced by such prejudice. We would probably be justified in striking the whole argument from the files as containing a remark disrespectful to the court; but we think best merely to say that the remark meets with our disapprobation."
By reason of the fact that this case was submitted to the court without the intervention of a jury, and there was sufficient evidence to show in the record by concession and otherwise that the plaintiffs *Page 974
held a mortgage on the property in question, that the writ of attachment sued out by Karlen deprived the plaintiff of the right to proceed under his chattel mortgage, and that, after the sheriff had been notified by the plaintiff, Karlen put up the bond, it seems to us that the court had the right to enter the judgment it did enter on the record as it stands, and that there was no error in so doing. The case is therefore affirmed.
ANDERSON, C.J., and ALBERT, DONEGAN, RICHARDS, HAMILTON, POWERS, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430740/ | I. It is said that the evidence is insufficient to sustain the verdict. The evidence for the State tended to establish the following facts: Appellant was cashier of the Chester Savings Bank. Henry Bloss had, at some time prior to February 21, 1923, executed a note to the bank for $400. This note appellant had sold and transferred to H.S. Gue. In the fall of 1922, Gue returned the note to appellant for collection. After that, and prior to July 2, 1923, appellant, when asked by Gue if he had collected the note, said he would get a renewal, and on the latter date delivered to Gue the note in question for $400, dated February 21, 1923, and purporting to be signed by Bloss.
Bloss testified that he did not sign the second note so held by Gue, and that he paid the original note for $400 to the receiver *Page 9
of the Chester Savings Bank. Bloss further testified that appellant, after his arrest, said to him that the note in question was not meant for Bloss to pay; that it was meant for a record; that he never meant it to be collected. There was testimony that the note the appellant was charged with uttering and the indorsement thereon were in appellant's handwriting.
The appellant testified that the note was signed by Bloss at the bank on the date it bore, and denied having the conversation testified to by Bloss. There was testimony from Bloss and others that Bloss was not at the bank on the date in question. It is clear that the question of appellant's guilt was for the jury, and that the verdict finds ample support in the evidence.
II. The court admitted evidence tending to show that three other forged notes were sold by appellant, about the time of the delivery of the note in question to Gue. Counsel concede in argument that two of these transactions, one of which was the sale of a note to Gue, were sufficiently close in point of time to the transaction in question to be admissible. It is urged that evidence of the other transaction was inadmissible because the note was dated in June, 1922. The testimony, however, showed that it was negotiated by the appellant some months later, and a short time before the uttering of the note in question.
The crime of uttering a forged instrument is one of the exceptions to the general rule that the commission of other crimes may not be shown against the accused. It belongs in the class where other like offenses committed by the defendant and connected in point of time or circumstances with the crime charged may be shown, to establish guilty knowledge or intent on his part. State v. Saunders, 68 Iowa 370; State v. Jamison,74 Iowa 613; State v. Prins, 113 Iowa 72.
III. Complaint of the argument of the county attorney is without merit. The court, on objection of counsel for appellant, directed the jury to disregard any remarks relative to the financial standing of Bloss. The statements objected to were not of such a character that prejudice could have resulted after this admonition by the court.
We find no error in the record, and the judgment is —Affirmed.
FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur. *Page 10 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430743/ | This action, as said in the preliminary statement, was brought by the plaintiff-appellee, the Federal Land Bank of Omaha, a corporation, to obtain, first, judgment on a promissory note; and, second, the foreclosure of a real estate mortgage. The note for $20,000 was signed on March 7, 1924, by the defendants-appellants Myron E. Wilmarth and Effie P. Wilmarth, husband and wife. Myron E. Wilmarth is an attorney at law, practicing his profession at Corning, Iowa. Said note, together with interest at the rate of 5 1/2 per cent per annum, payable semi-annually, was payable to the appellee at its office in Omaha, Nebraska, according to an amortization plan. All payments of principal and interest on the note, according to the amortization plan, not made when due, were to bear interest from such due date to the date of payment at the rate of 8 per cent per annum. To secure the note, the appellants Myron E. and Effie P. Wilmarth executed to the appellee, at the time the note was made, a mortgage on certain real estate in Adams county.
Harry Wilmarth, a defendant-appellant, is the son of the appellants Myron E. and Effie P. Wilmarth. He was made a party to the present proceedings because of a certain assignment of rents accruing on the mortgaged premises. It is claimed by the appellant Harry Wilmarth that he is entitled to those rents.
Several installments of principal and interest, according to the amortization plan, were paid by the makers of the note and mortgage. According to the record, however, the appellants failed to pay the following installments on the note: First, the one due October *Page 342
1, 1931, for $650; and, second, the one due April 1, 1932, for $650. Also the appellants failed to pay the 1930 taxes on the land, amounting to $126.65, which became delinquent and were paid by the appellee. Likewise, the appellants neglected to pay an insurance premium for $78 covering certain buildings on the mortgaged real estate. This insurance premium also was paid by the appellee. By authority of the provisions in the note and mortgage, the appellee declared the entire mortgage indebtedness due and unpaid because of the appellants' delinquency in paying the obligations above named. The declaration of forfeiture was made by the appellee through the commencement of foreclosure proceedings on October 28, 1932, In that foreclosure suit, the appellee asked judgment against the appellants Myron E. and Effie P. Wilmarth for the sum of $20,204.55, together with interest at the rate of 8 per cent per annum from August 1, 1932.
A defense to that foreclosure suit was made by the appellant Effie P. Wilmarth on the theory that she, in fact, was not a maker of the note. Her defense was sustained by the district court, and the appellee has not appealed. So far as the claims to the rent made by the appellant Harry Wilmarth are concerned, there is no controversy on this appeal. Consequently Effie P. Wilmarth and Harry Wilmarth appear to have little, if any, interest in the appeal. Myron E. Wilmarth, the appellant, on the other hand, seems to be the one principally involved on the appeal so far as the appellants are concerned. Hereafter, therefore, when we refer to the appellant, our reference will be to Myron E. Wilmarth. His defense is manifold.
At the outset, this appellant, in answering the appellee's petition, objected to the payment of 8 per cent interest on the indebtedness. According to his theory, the amount of interest above 5 1/2 per cent amounts to a mere penalty under the circumstances, and therefore will not be enforced in equity. Next, the appellant answered that he was not liable to the appellee for attorney fees on that portion of the debt, the due date of which was accelerated by the commencement of the suit, because the appellant had no knowledge or information of the appellee's intention to thus accelerate the debt, and therefore he had no opportunity to pay the same. Again in his answer, the appellant alleged that equity will not foreclose the mortgage at this time because of the abnormal deflation of farm values, and the monetary stringencies now existing. An emergency exists, the appellant declares, and, because of its severity, equity *Page 343
will not enforce the note and mortgage and compel him to pay more than the present adjusted value of the moneys loaned on a previous date. Furthermore, the appellant in his answer stated that there was appropriated to the appellee by congress funds with which to refinance the appellant and others, and therefore the appellee is estopped from foreclosing the mortgage at this time. And, finally, the appellant asked that the foreclosure cause be continued until the 1st day of March, 1935, under the Iowa moratorium statute.
These defenses thus set forth in the answer were overruled by the district court, a judgment was entered on the note against the appellant, and the mortgage on the real estate was foreclosed as prayed. From that judgment, the appellant appeals.
[1] I. As before explained, the note in question under the amortization plan bears interest at the rate of 5 1/2 per cent per annum, payable semi-annually. In addition to the foregoing provision in the note, and supplemental thereto, is the following: "All payments not made when due shall bear interest from the due date to the date of payment at eight per cent per annum." Throughout the note and mortgage, the 8 per cent interest after the maturity of a payment due, is mentioned by way of repetition and perhaps for clarity, but in each instance it is plain that the parties to the note and mortgage intended the above-quoted provision relating to the 8 per cent interest to stand without modification. This provision for the 8 per cent interest upon the contingencies mentioned amounts to a penalty, the appellant argues, and therefore cannot be enforced in equity. Such penalty arises, the appellant says, both with and without the acceleration of the due date provided for in the note and mortgage, as before explained. So far as the acceleration clause is concerned, there is no penalty. For many years, borrowers and lenders in Iowa have provided in their notes and mortgages for the option of acceleration on the failure to pay taxes, insurance, interest, or principal when due.
As said in Swearingen v. Lahner and Platt, 93 Iowa 147, reading on pages 150 and 151, 61 N.W. 431, 433, 26 L.R.A. 765, 57 Am. St. Rep. 261:
"Stipulations such as are found in these notes and in the mortgage under consideration are not regarded, in the nature of a penalty or forfeiture, and, for that reason, viewed with disfavor by the courts, but as agreements for bringing the notes to an earlier *Page 344
maturity than expressed upon their face, and are to be construed and the intention of the parties ascertained by the same rules as other contracts. * * * So it has been held that, after the happening of the contingency which matures the note, the mortgagee cannot be compelled to accept the interest due and yield his claim for the whole amount. * * * Courts of equity haveno power to relieve against the default and its consequences." (Italics supplied.)
To the same effect, see Moore v. Crandall, 146 Iowa 25, 124 N.W. 812, 140 Am. St. Rep. 276; Stern v. Rainier et al., 193 Iowa 665, 187 N.W. 442; Coffin v. Younker et al., 196 Iowa 1021, 195 N.W. 591; Collins v. Nagel, 200 Iowa 562, 203 N.W. 702; Jewell v. Logsdon et al., 200 Iowa 1327, 206 N.W. 136; Whitney v. Krasne,209 Iowa 236, 225 N.W. 245; McKee, Executrix, v. Stewart,211 Iowa 1185, 235 N.W. 286.
While such acceleration of the due date may be accomplished by proper action, yet a mere default in the payment in and of itself will not cause said acceleration. Such default merely confers upon the payee the option to declare the acceleration of the due date by the commencement of an action or otherwise. Whitney v. Krasne, supra; Collins v. Nagel, supra. But before accomplishing such acceleration, a demand on the debtor for payment is not essential. Moore v. Crandall, supra; Collins v. Nagel, supra; Coffin v. Younker et al., supra.
Therefore, in the case at bar the appellee, by commencing a suit, had a right under the provisions of the note, without previous demand on the appellant for payment, to accelerate the due date on all amounts named in the note because certain interest and principal were not paid when due. This right to accelerate the due date the appellee exercised by the commencement of his action on October 28, 1932, and at that time the entire amount of the indebtedness, through the acceleration, became due and payable. By so doing, the appellee did not impose a penalty upon the appellant. See cases above cited.
II. It is argued by the appellant, however, that a penalty was imposed by the appellee when the interest was increased from 5 1/2 per cent per annum, payable semi-annually, to 8 per cent per annum. That penalty, the appellant argues, is inflicted because of a default. Consequently it is declared by the appellant that a court of equity will not enforce the penalty.
To sustain his argument at this point, the appellant cites *Page 345
Conrad v. Gibbon, 29 Iowa 120. A consideration of that case reveals that the appellant is in error on this point. The note in the Conrad case specifically provided for 20 per cent interest as a penalty. According to the note in that case, the increased interest was to be a penalty. Manifestly the increased rate of interest in the case at bar, due to the acceleration accomplished by the appellee, is not a penalty. Our courts have been enforcing similar provisions in notes, under the circumstances, as valid. See Swearingen v. Lahner and Platt (93 Iowa 147, 61 N.W. 431, 26 L.R.A. 765, 57 Am. St. Rep. 261), supra. This is the rule in many other states. 33 Corpus Juris 225; 41 Corpus Juris, p. 473, "e" under section 386. When a loan is made which is evidenced by a promissory note and secured by a mortgage, the parties have a right to contract in reference to the rate of interest. Everywhere it is realized that a note not in default is more desirable than a note in default. It is well known that a note not in default can be financed at a lower rate of interest than the rate at which a note can be financed when the same is in default. So the lender and the borrower, in contemplation of this fact, when the note is made, provide for the contingency. By so doing the borrower and lender simply agree, consistent with business principles, that, when the note is not in default, it shall bear the interest rate applicable to that situation, and they agree that, when the same is in default, it shall bear the added interest rate consistent with business principles relating to that event. Section 9404 of the 1931 Code provides:
"The rate of interest shall be six cents on the hundred by the year in the following cases, unless the parties shall agree in writing for the payment of interest not exceeding eight cents on the hundred by the year: 1. Money due by express contract. 2. Money after the same becomes due. 3. Money loaned. * * *"
In the case at bar, therefore, the appellant and the appellee, when making their contract, kept within the lawful rate of interest provided by that section of the Code. A limited phase of the question here involved was before this court in Whitney v. Krasne (209 Iowa 236), supra, local citation 249. There we said:
"Therefore, under the acceleration clause, appellants had a right to commence foreclosure, and, at their option, declare the entire amount due and thereby automatically set into operation the 8 per cent provision of the mortgage." *Page 346
Under the circumstances, therefore, the appellee was entitled to 8 per cent interest on all sums due by the terms of the note and mortgage. Likewise, it is entitled to 8 per cent after acceleration for that portion of the obligation coming due because of the appellee's election to accelerate and its acceleration of the due date on such indebtedness.
[2] This acceleration was accomplished by the commencement of the suit, which, according to the record and the findings of the district court, was October 28, 1932. But the district court allowed interest on the entire sum from August 1, 1932. That, the district court should not have done. As before indicated, the district court should have allowed the appellee 8 per cent interest from the due date of all sums past due, by the terms of the note and mortgage. Nevertheless, the larger portion of the amount due under the note and mortgage did not become past due except through the acceleration. Consequently, applying the provisions of the note above quoted to the accelerated portion of the debt, it is apparent that the 8 per cent interest should be allowed from the time of the acceleration, which becomes the due date thereon. According to the note, the 8 per cent interest is to be from "the due date to date of payment." Hence the due date of the accelerated part of the debt becomes the acceleration date. The 8 per cent interest, then, should be allowed from that date, which was October 28, 1932, rather than from August 1st preceding. To the extent of the wrongful allowance of interest, the judgment of the district court should be modified.
[3] III. It is claimed by the appellant that the district court wrongfully allowed attorney fees on the accelerated portion of the debt. The note and mortgage provided for attorney fees in the case of suit brought to collect the obligation. Section 11644 of the 1931 Code provides:
"When judgment is recovered upon a written contract containing an agreement to pay an attorney's fee, the court shall allow and tax as a part of the costs:
"1. On the first two hundred dollars or fraction thereof recovered, ten per cent.
"2. On the excess of two hundred to five hundred dollars, five per cent.
"3. On the excess of five hundred to one thousand dollars, three per cent, and *Page 347
"4. On all sums in excess of one thousand dollars, one per cent."
Supplemental to that section of the Code, and in explanation and aid thereof, is section 11647 of the same Code, which reads:
"No such attorney fee shall be taxed if the defendant is a resident of the county and the action is not aided by an attachment, unless it shall be made to appear that such defendant had information of and a reasonable opportunity to pay the debt before action was brought. This provision, however, shall not apply to contracts made payable by their terms at a particular place, the maker of which has not tendered the sum due at the place named in the contract."
Myron E. Wilmarth, the appellant, is a resident and practicing attorney in Adams county, where the suit was brought. So it is argued by the appellant that he did not know that the appellee was going to accelerate the due date on a large portion of the mortgage indebtedness, and therefore the attorney fees cannot be collected on the accelerated debt. Nevertheless, it is contended by the appellee that because the note was payable at its office in Omaha, Neb., it is entitled to the attorney fees. These fees were allowed by the district court.
This issue relating to the attorney fees was raised by the pleadings. Consequently, it is an issue in the case. Under division IV of his answer, the appellant specifically pleaded his defense to the appellee's claim for the attorney fees. Manifestly it is not enough for the appellee to merely show that the note is payable at Omaha, Nebraska, in order to collect the attorney fees. In addition to that, the appellee must show that the appellant "had information and a reasonable opportunity to pay the debt before the action was brought." Moore v. Crandall (146 Iowa 25), supra; Fellers v. Sanders, 202 Iowa 503, 210 N.W. 530. Concerning the allowance of attorney fees under the statute above quoted, we said in Moore v. Crandall, supra, reading on pages 31 and 32:
"The manifest design of this statute (section 11647, 1931 Code) is that as a condition precedent to the taxation of attorney's fees a debtor must be afforded a reasonable opportunity to discharge his debt. But for the last sentence (the one providing for the contingency of payment at a definite place), it could not well be claimed *Page 348
that attorney's fees should be taxed. That, however, forms no exception to the rule of the first sentence, for, when the instrument names the place of payment, the maker ordinarily is afforded a reasonable opportunity to pay before maturity. In neither situation, however, is there such opportunity where the indebtedness becomes due on the election of the obligee by bringing suit. In such event, tender when due would be practically impossible. The evident purpose of the last sentence is to obviate the necessity of a demand at maturity when the place of payment is specified, but has no application to a situation where the debt only becomes due on election unless the maker is advised thereof long enough before suit brought to afford a reasonable opportunity to pay."
Wherefore, in the case at bar, it was necessary for the appellee to notify the appellant of its intention to accelerate the due date as a basis for the collection of the attorney fees only. As before said, in another division of this opinion, notice of such intention to accelerate the due date was not necessary so far as the acceleration itself is concerned; but, in view of section 11647 of the 1931 Code, relating to attorney fees, such reasonable notice of intention to accelerate was essential before attorney fees can be collected on the accelerated debt. The suggestion is made in Kelso v. Fitzgerald, 67 Iowa 266, 25 N.W. 157, and Fellers v. Sanders, supra, that the proper procedure is to try out the main issues of the case first, and then, if there is liability on the note or contract, the contest relating to the attorney fees can be tried and decided. That, however, was not the procedure adopted in the case at bar. Here the issues relating to the attorney fees were raised in the pleadings, as before indicated, and, in order to recover such fees, it is necessary for the appellee to show its right thereto. This is not a case where the evidence upon the subject is omitted from the abstract and where we may therefore indulge in the presumption that the evidence was sufficient to allow attorney fees. Fellers v. Sanders, supra; Kelso v. Fitzgerald, supra.
We have before us a case where the issue relating to the attorney fees was raised in the pleadings, as previously said. Evidence was introduced concerning the same, and now appears in the abstract. Under the pleadings and the record, it is manifest that the appellee has not shown itself entitled to recover attorney fees from the appellant on the accelerated portion of the debt, because it does not appear that the appellant "had information and a reasonable *Page 349
opportunity to pay the debt before such action was brought". Of course, the appellee is entitled to attorney fees on that portion of the debt which matured without the acceleration. Hence, to the extent that the district court allowed attorney fees on the accelerated portion of the debt, the judgment must be modified.
[4] IV. Our attention now will be directed to that phase of the appellant's argument wherein he suggests that, because of the panic overspreading the country, equity will not foreclose the mortgage and allow the appellee judgment for the full amount of the money loaned. Equity will intervene under the circumstances, it is said by the appellant, because the land has depreciated in value from $40,000, at the time the loan was made, to $10,000 at the time the suit was commenced. Moreover, it is said by the appellant that equity will intervene in his behalf because money now is more valuable than when the loan was made. $20,000, the amount of the loan, would buy on the markets of the country, the appellant insists, at the time the loan was made only as much as $10,000 now will purchase. These radical changes in values were not contemplated, the appellant declares, when the note and mortgage were executed. At this juncture, it is further maintained by the appellant that the appellee has come into equity in this foreclosure proceeding, and therefore must do equity. If equity is done, the appellant concludes, the mortgage either will not be foreclosed, or the judgment will be scaled down to at least $10,000.
Many cases are cited by the appellant. None of them, however, is in point. Great reliance is made by him upon specific performance cases. Manifestly a different situation exists in a specific performance case than that which is present in a foreclosure proceeding. When, in a specific performance case, the equities do not entitle the plaintiff to a specific performance of the contract, "the practice in such a case, in the absence of statutory provisions to the contrary, is to dismiss the cause and relegate the parties to an action at law." Reiger v. Turley,151 Iowa 491, 131 N.W. 866; Dunlop v. Wever et al., 209 Iowa 590, local citation, 601-2, 228 N.W. 562, 567. Even in the specific performance cases mentioned, equity did not relieve the party obligated, but rather relegated him to law. The appellant also cites King v. Raab et al., 123 Iowa 632, 99 N.W. 306, as authority for his proposition. A careful reading of that case, however, clearly indicates that it does not support the *Page 350
appellant's proposition. For instance, on page 634 of the opinion it is said:
"The adequacy of the price when the lease was executed is not questioned. And the authorities cited by both parties are to the effect that any change in the value of the property or the price occurring subsequently without fault of either party will excuse neither from compliance with the contract." (Italics supplied.)
Applying that philosophy to the case at bar, it is manifest that the appellant will be hindered rather than assisted in his argument. There is no question but that the transaction involving the note and mortgage was fair and lawful at the time the note and mortgage were executed. Neither the appellant nor the appellee is responsible for the panic which has overtaken the country, and the resulting fall in prices. Under this situation, therefore, the rule announced in King v. Raab, supra, would not relieve the appellant in the case at bar from the payment of the note and the satisfaction of the mortgage. Assuming, for the purposes of discussion, that the appellant's philosophy is correct, then, were the situation reversed, would the appellant, in what he would term prosperous times, be in court asking that he not be permitted to pay $20,000 in satisfaction of the obligation, but that he be required to pay $40,000 in satisfaction of the debt? Of course, that philosophy cannot be applied to the practical events of life.
According to the note, the appellant was to pay the appellee $20,000 on an amortized plan. Therefore the $20,000 is to be paid according to the terms of the contract. Such payment may be made by the appellant in any legal tender authorized by the Congress of the United States. So far as shown by the record, this is a private debt and can be paid only in legal tender of the United States. In section 8, article I, of the Constitution of the United States, it is provided, among other things, that the Congress of the United States shall have power: "* * * To coin Money, regulate the Value thereof, and of foreign Coin. * * *" Congress, and not the state, has the power, under our constitutional system, to determine with what money private debts shall be paid. Knox v. Lee and Parker v. Davis (Legal Tender Cases), 79 U.S. (12 Wall.) 457, 20 L. Ed. 287, local citation 310, 311, and 312; Juilliard v. Greenman, 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204; Warnibold v. Schlicting, 16 Iowa 243; Richmond v. Dubuque Sioux City Railway Co., 33 Iowa 422. *Page 351
Likewise Congress may restrain the circulation of any money not authorized under its own authority. Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533, 19 L. Ed. 482.
When contracting in the case at bar, the appellant and the appellee did not provide that the debt created could be satisfied by adjusted dollars, trade dollars, or any other dollar, except the legal tender authorized by the Congress of the United States. For instance, we said in Warnibold v. Schlicting, supra, reading on page 247:
"But he (the debtor, who borrows money) can only repay it (the money) by offering that which the law says is a legal tender. * * * Complainant's obligation was to pay so many dollars ($700) and not a commodity, or so much gold. * * * The parties dealt with it (gold money) as having an artificial value, as so many dollars, and not as a commodity having a specified and agreed intrinsic worth or value. Legally, each dollar passed for one hundred cents; and legally, it had no other value. * * *" Continuing on page 248, we further said: "The market fluctuations in the values of these several mediums cannot affect the duty of the creditor to receive, and the right of the debtor to pay, whichever of such mediums the latter may choose to offer."
The appellant, when receiving the money named in the note, in effect agreed to repay it at maturity with legal tender authorized by the Congress of the United States. Under all the cases presented for our consideration, it uniformly has been said that fluctuations in values will not relieve the debtor. Equity cannot arbitrarily grant relief in the face of the Constitution of the United States and the laws thereof, to which the state is subject. See cases above cited. Consideration at this place also should be given to the contract clause as well as to the other clauses of the United States Constitution. See section 10, article I, Constitution of the United States. Iowa has enacted no laws to assist the appellant in avoiding the obligations of his contract. Moreover, in view of the contract provision of the Federal Constitution, the state could not in any event adopt a policy which would repudiate debts, destroy contracts, or deny the means to enforce such obligations. Home Building Loan Association v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231, 78 L. Ed. 255.
While we sympathize with the appellant in his dilemma, yet *Page 352
he has cited us no law, and we are unable to find any, through which we may grant him the relief which he asks.
[5] V. But it is claimed by the appellant that Congress has granted to the appellee, and other like institutions, millions of dollars to relieve debtors in situations of this kind. Assuming this contention of the appellant to be true, nevertheless the appellee's governing board has discretion to determine when and how this money shall be used. This court has no power to compel the appellee to loan the appellant money to help him fund his indebtedness. The appellant must make his appeal for such relief to the appellee's governing board. In no event do the state courts have power to compel the appellee to come to the appellant's assistance.
[6] VI. It is finally argued that the district court wrongfully refused to grant the appellant a continuance of the cause to March 1, 1935, in accordance with chapter 182 of the Acts of the Regular Session of the Forty-fifth General Assembly of Iowa. Section 2 of said chapter 182, among other things, provides:
"In all actions for the foreclosure of real estate mortgages or deeds of trust now pending in which decree has not been entered, and in all actions hereafter commenced for the foreclosure of real estate mortgages or deeds of trust, or on notes secured thereby, in any court of record in the state of Iowa, while this act is in effect, the court, upon application of the owner or owners of such real estate or persons liable on said mortgages or deeds of trust, or notes secured thereby, who are defendants in said cause and not in default for want of pleading or appearance shall, unless upon hearing on said application good cause isshown to the contrary, order such cause continued until March 1, 1935, or so long as this act is in effect. * * *"
Continuing with further provisions, the section then provides for the payment of taxes, interest, etc., out of the rentals on the farm during the period of the contemplated continuance. No question is raised in this case concerning the constitutionality of the above-quoted statute now under consideration. Consequently, it is necessary to determine whether, under the record of this case, the district court erred in refusing to grant the continuance asked by the appellant.
According to section 2 of the statute previously quoted, a continuance is not to be granted in all cases. Such continuance shall *Page 353
be granted unless "good cause is shown" why the continuance should not be granted. The granting of the continuance is to be the rule under the statute, and, if the general rule is not to apply, the mortgagee must show good cause as to why it should not govern. In other words, the question as to whether the mortgagor is to have a continuance is not dependent upon the judgment or discretion of the district court without reference to the purpose of the statute. Under the statute, the mortgagor is to have the continuance unless the mortgagee has shown good cause why he should not have the same. When the question is presented, it, of course, is for the district court guided by the statute to determine whether or not good cause has been shown why the continuance should not be granted. That is the plain provision of the statute. But, when determining what is or is not good cause, the district court must keep in mind the purpose of the statute, together with the fact that under the statute the granting of the continuance is to be the rule. Necessarily, then, the district court has a limited discretion in determining what shall or shall not be good cause for refusing the continuance. As to what may be a good cause in such event is not provided in the statute. So the statute, in effect, contemplates that the district court, in harmony with the purposes and provisions of the act, shall determine what shall be such good cause, and, if that court does not abuse its limited discretion in that event, this court will not interfere.
While the appellant himself occupied the mortgaged farm originally, yet during the year 1932, when he was defaulting under the mortgage, he left the premises. Apparently the appellant permitted his son to lease the farm in small fractions to various tenants. These tenants appear not to have been good farmers. The buildings are leased by themselves to a single tenant who does not farm but a small portion of the land, if any. It seems that the appellant does not know the name of this tenant. During the time in which the appellant has been in default under this mortgage, he has not applied the rents and profits to the taxes, interest, and principal. In fact, he is attempting to assist his son, the said Harry Wilmarth, in obtaining the rents for the year 1932 in order that the appellee may not receive them.
A concession was made that the appellant is insolvent. Although this is not controlling, yet it has a bearing on the problem. There is approximately $25,000 now due on the indebtedness. Under no circumstances is it possible that the appellant will be able to pay *Page 354
the debt, with the rapidly accruing interest, on or before March 1, 1935. This mortgaged farm is estimated by the witnesses to be worth approximately $10,000 at this time. Although the appellant is a practicing attorney, there is nothing to show that his legal practice is such that he can liquidate the balance of this indebtedness within the period for which the continuance is asked. It was found by the district court that the appellant has lost hope and apparently, in effect, has abandoned the farm.
The purpose of the statute is to afford the owner of the land an opportunity to refinance or pay up the indebtedness and save his farm within the moratorium period. But the appellant, as already indicated, will not be in a position to pay the obligation and redeem the farm within the period of the moratorium. He is hopelessly involved financially. Not only is the appellant insolvent, but he has no property with which to make any payment on the judgment aside from the mortgaged land. While the insolvency is not the deciding point, it is a material consideration. Clearly the appellant has no prospect of refinancing or funding the indebtedness within the moratorium period.
Then, under all the circumstances, it is apparent that the district court did not abuse its limited discretion under the statute, in refusing to grant the continuance.
Wherefore, the judgment and decree of the district court should be modified in the manner and way hereinbefore provided, and, as thus modified, the same should be affirmed. Accordingly, the judgment and decree of the district court is modified and affirmed. — Modified and affirmed.
CLAUSSEN, C.J., and EVANS, STEVENS, ALBERT, ANDERSON, and DONEGAN, JJ., concur.
MITCHELL and KINTZINGER, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430745/ | In the first instance, the plaintiff charged a conspiracy, entered into by the defendant Farquhar and the 1. INSURANCE: First National Bank of College Springs, of which insurable Farquhar was president, and one Wells, one of interest: the policyholders of the plaintiff, to defraud negativing the plaintiff by collecting from it a false and presumptive invalid claim. Wells was not made a effect of party-defendant; the verdict conveyance. *Page 1208
was for the defendant the First National Bank; and no evidence of conspiracy was offered on the trial. We may treat the case here, therefore, as a case against Farquhar alone, for damages for a fraudulent breach of duty, as agent for the plaintiff. The facts of the case are comparatively simple. The evidence is without substantial conflict, unless it can be said that a certain legal presumption contended for by the plaintiff is of such a character as to make a conflict with evidence otherwise undisputed, and, as such, sufficient to carry the case to the jury. The plaintiff is a mutual insurance company, organized and doing business in Page and Fremont Counties, Iowa. One Wells was one of its members and policyholders. The defendant Farquhar was likewise one of its members and policyholders, and had been such for many years. He had also acted temporarily as adjuster of occasional losses. On March 19, 1920, the plaintiff-company issued its certificate of insurance to one Wells, for $4,250, $2,000 of which was upon his residence, and $1,200 upon his barn, and the remainder upon personal property. On December 4, 1921, this residence, while so occupied by Wells, was wholly destroyed by fire. This loss was reported to the plaintiff through Farquhar, who recommended the payment of the loss to the full amount of $2,000. The plaintiff thereupon paid the loss, by issuing its check on December 10th, payable to Wells. The complaint against Farquhar is that he himself, for his bank, and not Wells, was the real beneficiary of this adjustment, and that he fraudulently concealed that fact from the plaintiff's secretary, who issued the check in payment thereof. The pertinent facts at this point are that, on March 1, 1920, Wells had executed a mortgage to the First National Bank upon his residence property, including the house in question, to secure a note for $4,500. This mortgage in no manner violated the condition of the insurance, and no complaint is made of it. Indeed, the certificate of insurance imposes no restraint upon any policyholder in the matter of incumbering the insured property. This mortgage became due March 1, 1921. On March 21, 1921, Wells paid the interest on the mortgage up to March 1st, and executed a new note for the principal for $4,500, and executed a warranty deed for a stated consideration of $1.00. It was shown for the defendant that the consideration for this deed *Page 1209
was the existing mortgage debt and an agreement that Wells should have the right of possession and the right of redemption for the period of one year. Wells continued in possession, and was in the exercise of such right at the time the loss occurred. Under this agreement, Wells was to carry the insurance. He was regularly assessed by plaintiff for his insurance premium in November, 1921, and he paid the same. The deed was at that time on record, though its existence was not actually known to the officials of the plaintiff, except one director. Wells received plaintiff's check for his loss to the amount of $2,200. This sum represented an adjustment of $200 for household goods and $2,000 for the dwelling house. Upon receiving the same, Wells paid the $2,000 to the defendant bank, and such sum was indorsed upon his $4,500 note. Wells never did redeem the property. After the expiration of the year, and in the fall of 1922, the defendant-bank sold the property to a purchaser, and conveyed the same by special warranty deed, thereby asserting its title thereto. The foregoing comprises substantially the material facts in the case. It goes quite without saying, that, if Farquhar, while acting as adjuster for the plaintiff-company, knowingly concealed from the directing officers material facts affecting the liability of the company for the alleged loss, he would be liable for the resulting damage. Such is the final legal proposition upon which the plaintiff's case is predicated; nor does the defendant contend otherwise. Three main propositions are contended for by plaintiff:
(1) That Wells, at the time of the loss, had no insurable interest in the property destroyed.
(2) That Farquhar knew he had no insurable interest therein.
(3) That Farquhar, so knowing, fraudulently concealed the fact from his superiors.
The negative contention by the defendant is: That Wells did have an insurable interest, and that Farquhar knew it, and that, so knowing, he was under no duty to report the contrary. The burden was upon the plaintiff to prove the propositions above stated. It is not sufficient for the plaintiff to prove that its secretary would not have paid the loss if it had known of the conveyance. It must prove that it was not liable for the *Page 1210
loss under all the facts which could be adduced at a trial of the issue. This is only another way of saying that the plaintiff must prove affirmatively that Wells had no insurable interest. The sole evidence relied on by plaintiff as proof of want of insurable interest in Wells, was the deed executed by him to the bank in March, 1921. The evidence of the agreement pursuant to which the deed was executed, was put in by the defendant. The argument is that the deed so opposes itself to the testimony of the defendant as to create a conflict of evidence, and thereby to make a question for the jury. It is argued for plaintiff that, though the defendant may be permitted to show that the deed was intended as a mortgage, yet he may not show any prior parol agreement for the purpose of qualifying the effect of the deed, because the deed itself would be the best evidence. It is further argued that the execution of the deed raises a presumption which is available to the plaintiff as substantive evidence, which must be affirmatively overcome by the defendant to the satisfaction of the jury.
This was the theory accepted substantially by the trial court in the submission of the case. The theory is not sound. As already indicated, the burden resting upon the plaintiff was to show that Wells had no insurable interest left 2. EVIDENCE: in the property. This burden was not necessarily parol as met by a showing that he had executed a deed of affecting the property, while yet retaining the possession writings: and control thereof. The insurance certificate deed as imposed upon Wells no prohibition against mortgage. incumbrance of the property. That a deed does not necessarily extinguish the insurable interest of the insured in the property, is well illustrated by the evidence in this case. The contention that the defendant may not show any different agreement from that implied in the deed itself is not well taken, if for no other reason than that the plaintiff was not a party to the deed. As a matter of law, deeds do function as mere securities. As a matter of law, also, deeds do not necessarily, or even usually, disclose the transaction pursuant to which they were executed. Whether a deed shall operate as an absolute transfer of title and possession, or shall operate as a continuing security for a debt, is a question always dependent upon the antecedent transaction pursuant to which it was *Page 1211
executed. The plaintiff is not here as an innocent purchaser who has acted in reliance upon the form of the deed. On this question, the plaintiff is in the same position as it would have been if Wells had sued it for his insurance. The presumption for which plaintiff contends is one which operates as between the parties to the instrument and those in privity with them, and perhaps in favor of third parties who have acted in reliance upon the face of the instrument. The plaintiff is not a party to this deed; neither is the defendant Farquhar. The plaintiff was never misled in its action in reliance upon it. Indeed, the burden upon the plaintiff was, not only to show an absence of insurable interest in Wells, but was also to show that Farquhar knew that he had no such insurable interest. In predicating the charge of fraud against the defendant at this point, the plaintiff challenged the title of Wells, both legal and equitable, and thereby challenged the legal effect, not only of the deed, but of the transaction out of which it grew. If it be granted that, if there were no evidence in the record concerning the transaction pursuant to which the deed was made, then the deed should be given effect according to its terms, it does not follow that the oral evidence of the antecedent transaction is to be deemed contradictory to the deed. If the evidence were contradictory as to what the antecedent transaction was, that would present a different question.
So far as the question of presumption, however, is concerned, there is another fact in the record which is quite decisive. The record is without dispute that, at the time this deed was given, the grantee therein was then the holder of a mortgage for $4,500 upon the same property, and that it was due. We have, then, a case where the mortgagor of real estate executes to his mortgagee a deed of the real estate for a nominal consideration only. On the face of it, this would be a surrender of the right of possession and the right of redemption during the period of redemption. It is well settled that in such a case the deed will be presumed to be a continuation of the security, and the right of redemption thereon is presumed to continue. This presumption is greatly strengthened when the grantor continues in possession of the property described in the instrument. Fort v. Colby,165 Iowa 95, 127-129. Under this rule of presumption, *Page 1212
we could ignore wholly the evidence of the specific agreement for the right of possession and the right of redemption. To say the least, this presumption wholly overrides the presumption for which the plaintiff contends, viz., that the deed must be given effect according to its terms. As already indicated, such alleged presumption in favor of the language of the deed is the sole reliance of the plaintiff in contradiction of the oral evidence of the agreement of the parties, pursuant to which the deed was executed. The undisputed evidence, therefore, as it is in this record, discloses that Wells had a perfect cause of action against the plaintiff for his insurance. The payment of it operated solely to the benefit of Wells. The proceeds were applied by him voluntarily upon the debt he was owing, and were credited upon his note. What his subsequent rights may have been, as between him and the bank, is a question not involved in this litigation.
It is argued that the credibility of Farquhar, as a witness, was a question for the jury, he alone having testified to the antecedent transaction. We fail to find any evidence of any circumstance in the case which is inconsistent with his testimony, unless the language of the deed and the alleged presumption arising therefrom shall be deemed such inconsistency. It must be presumed that there was some transaction between the parties, pursuant to which the deed was made. It is a grave question whether the burden was not on the plaintiff to show that transaction. In any event, Farquhar purported to testify to it. It was open to the plaintiff to meet that testimony with other testimony showing the transaction to have been otherwise. The plaintiff called Wells as a witness, but did not interrogate him on that subject.
We think it must be said that there was no material conflict in the evidence. The defendant's motion for a directed verdict ought to have been sustained.
The judgment below is, accordingly, reversed. — Reversed.
FAVILLE, C.J., and ALBERT and MORLING, JJ., concur. *Page 1213 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430746/ | The land involved in this controversy is situated to the east and north of the Missouri river, within the lines of Pottawattamie county, and is described as the northeast quarter of the southwest quarter, the northwest quarter of the southwest quarter, and the southwest quarter of the southwest quarter of section 24, township 74, range 44, and the northwest quarter of the northwest quarter of section 25, same township and range. Eliminating the first 40-acre tract (the northeast quarter of the southwest quarter of section 24), to which defendants expressly *Page 45
disavow any claim, the remainder of the land is also described throughout most of the pleadings as being in Sarpy county, Nebraska, but will hereafter for convenience be described as in Iowa. The principal controversy is as to the southwest 40-acre tract of section 24, and the northwest 40-acre tract (apparently fractional) of section 25. The southwest quarter of the southwest quarter of section 24 lies north of the land in section 25, and both lie immediately west of lands claimed to be owned by defendants. Defendants' title to their land is derived from a deed from one Batchelor, dated October 18, 1932, conveying land east of creek except the east 40 feet of the southeast quarter of the southwest quarter of section 24, together with all accretions thereto. The tract conveyed, exclusive of accretions, contained about 8 acres. Plaintiffs' title is claimed through a series of conveyances and transfers of title to the west half of southeast quarter of section 24 and northwest quarter of northwest quarter of section 25, the conveyance to plaintiffs being from Marks in 1920. Included in the record of title is a quitclaim deed from Batchelor to the Lake Manawa and Manhattan Beach Railroad Company, of "all that part of the southwest quarter of section 24-74-44 lying west and north of Mosquito Creek and lying north of the Missouri River; also that part of the southeast quarter of section 24-74-44, said tracts containing 200 acres more or less, the intention being to convey to said company said land and accretions, whether situated in Pottawattamie County, Iowa, or Sarpy County, Nebraska." This deed was dated January 18, 1900.
The basis of the controversy is the right to accretions formed by the recession of the river, which for a long time has flowed west and south of the lands of plaintiffs and defendants and the accretions in dispute. The petition in this case was filed March 6, 1935, plaintiffs alleging ownership of the lands and trespass and injury by the defendants, and asking writ of injunction. Temporary injunction was granted, and afterwards temporary injunction granted to defendants on their cross-petition, which latter injunction was later dissolved. Among other proceedings, the plaintiffs, in April 1935, filed petition in Sarpy county, Nebraska (which lies across the river to the west of Pottawattamie county, Iowa), asking injunction and decree quieting title. Whether this was done to forestall any *Page 46
jurisdictional claim in the Iowa case, or from uncertainty as to the state in which the land is situated, we do not know. At any rate, defendants later appeared in the Nebraska action, denied generally, pleaded lack of jurisdiction, and averred that the lands were in Iowa. Trial was had, and a decree rendered quieting title in plaintiffs and enjoining defendants from claiming any interest in, or going upon, or interfering with plaintiffs in their possession of, the land.
Petition and answer and cross-petition in the present action were amended at various times, but in substance the issues consist of the claims to the land. McGarry was substituted as party plaintiff for Arnd, and by another amendment Theodore Batchelor, Fred Schiferli, John Lewis, and Roy Lewis were made parties defendant, on the ground that they were trespassing and interfering with plaintiffs' use and occupancy. Defendants, in addition to their claim of ownership, deny jurisdiction of the Iowa court.
Defendants concede that they are occupying and using the southwest quarter of the southwest quarter of section 24, but claim right and title thereto as accretions to their land in the southeast quarter of the southwest quarter.
[1] The pleadings are extensive, and the evidence introduced much too voluminous to undertake to set it out to any great extent in an opinion. Much of it relates to matters we do not think are essential to the disposition of the case. Some of the exhibits are not found with the record or are misplaced. But the greatest difficulty experienced in examining the evidence was that in some cases questions referred to maps and plats, but the witnesses merely indicated by pointing to the locations inquired about. It also appears from the transcript that the court was to examine the premises in question. Whether it did so or not the record does not disclose. We may assume that if it did, it was merely for the purpose of applying the testimony. But, under the circumstances, caution must be exercised in reaching a different conclusion on some of the facts than the conclusion reached by the trial court, and the presumption must be indulged that the trial court performed its duty and reached a proper conclusion. Harrington v. Foster, 220 Iowa 1066, 264 N.W. 51, and cases cited.
[2] The land in controversy and land in its vicinity have *Page 47
been the subject of considerable litigation in times past, but the decrees offered in evidence involved either other lands or other parties or both. The Harrington case, against one Foster, related to land in the adjoining 40 acres, and the defendant in that case was not connected in interest with the plaintiffs herein nor their predecessor in title. A case involving taxation of this tract was also offered in evidence, but could have no bearing on the rights of the parties hereto, who were not parties to such proceeding. They could not be affected by the result of that suit. Nor is it necessary to consider the effect of this other litigation. Coulthard v. McFerrin, 194 Iowa 1133,190 N.W. 940.
[3] Defendants' claim to ownership rests upon their title to the land deeded by Batchelor in the southeast quarter of southwest quarter. With reference to the description in the deed there was considerable evidence offered as to the location of Mosquito creek, but the weight of evidence shows that the creek, as shown on the plat offered in evidence, flows and has flowed as plaintiffs claim. In the 8 acres of the Batchelor tract there are possibly 5 acres of ground called "land in place" — not accretions, but the original soil, and not the result of deposit by the river. On the basis of the ownership of the land in place, and their deed from Batchelor, defendants make claim to all land south and west to the river. The plaintiffs, however, claim ownership by adverse possession and contend that the land is a part of Nebraska, caused by the shifting of the stream and by deposits upon Nebraska land which cut off such shifting and change of bed so as to lie on the east side of the channel, instead of the west side as it formerly did. Much of the controversy and a great deal of the evidence in the case related to the history of the river, and its various changes of channel and course. At the time of the original government survey the east, or Iowa, bank of the river was about the west line of section 24. It thereafter moved north and east over the lands in dispute, until in 1881 it changed its course and for some time flowed to the west of and along the south line of these lands. The land is now, and has been for many years, east of and north of the river.
The rules as to state boundary rivers have been quite definitely established. Boundaries (established in the middle of *Page 48
the main channel) vary as channels change by accretion. Bigelow v. Herrink, 200 Iowa 830, 205 N.W. 531; State of Nebraska v. State of Iowa, 143 U.S. 359, 12 S. Ct. 396, 36 L. Ed. 186; State of Arkansas v. State of Tennessee, 246 U.S. 158, 38 S. Ct. 301,62 L. Ed. 638, L.R.A. 1918D, 258; Kitteridge v. Ritter, 172 Iowa 56,151 N.W. 1097; O'Connor v. Petty, 95 Neb. 727, 146 N.W. 947. But a sudden change, by cutting off land by avulsion, leaves the boundary still the thread of the main channel as it was preceding such change. State of Nebraska v. State of Iowa, supra; State of Arkansas v. State of Tennessee, supra; O'Connor v. Petty, supra; Kitteridge v. Ritter, supra. As to the rule as to the process of accretion, and the necessity that it be gradual, see 9 C.J., p. 195; Noyes v. Collins, 92 Iowa 566, 61 N.W. 250, 26 L.R.A. 609, 54 Am. St. Rep. 571; McCoy v. Paxton, 156 Iowa 194,135 N.W. 1091. And there are certain presumptions that are recognized: first, that land being on the east side of the Missouri river is presumed to be in Iowa; and second, it is presumed to be the result of accretion. Kitteridge v. Ritter, supra, and cases cited 172 Iowa on p. 59, 151 N.W. 1097, thereof.
But we do not think a consideration of the history of the river, or its wanderings or the results thereof, is necessary to a determination of the rights of the parties, and we therefore need not and do not make any finding as to these questions. An examination of the evidence in regard to the title and claims of plaintiffs as to ownership, we believe fully determines the rights of the parties. Nor, in view of our holding in this case, is it necessary to consider or pass upon the force and effect of the Nebraska decree. Such decrees have been approved as to injunctions. Restatement Conflict of Laws, sec. 96; 21 C.J., sec. 132, p. 152; and, see Coulthard v. McFerrin, supra.
[4] It appears by the evidence that for more than fifteen years the plaintiffs have been in possession of the land under color of title, and claim of right, open, notorious, hostile and adverse as against all others. Before plaintiffs acquired title it was so held by their predecessors in title. Since acquiring ownership, which was by color of title, they have leased the land to tenants and such leases were offered in evidence, covering the entire period. It was fenced along the east side. They or their tenants have been in possession, using the land to the *Page 49
extent it was capable of use, have grown crops and exercised all the attributes of ownership. This use, occupancy, and control, dates back beyond the period of their purchase, but it is sufficient for the purpose to refer only to the date of acquisition. The evidence clearly shows that the title is in the plaintiffs. As to acquisition of title in this way it is not necessary to cite authorities. Even assuming that the land was accretion to defendants' "land in place", we hold that, under the evidence, the plaintiffs hold title to the tracts described as the west half southwest quarter and the northeast quarter of the southwest quarter of section 24, and the northwest quarter of the northwest quarter of section 25, all in township 74 north, range 44, west of the 5th P.M.
[5] Defendants urge that the decree was not in conformity with the pleadings on account of part of the land being described as Nebraska land. There was no question, and there could be no question, as to just what land was in dispute. Throughout the litigation, in the evidence and many of the exhibits, the land has been fully described and the decree covers the land in controversy. Kitteridge v. Ritter, supra; Coulthard v. McFerrin, supra.
[6] The district court held that it had jurisdiction and we think it was correct in so holding. This is a suit for injunction. All parties appeared, and, subject to their right to appeal, are bound by the decree.
[7] Plaintiffs appeal from the decree of the court refusing to award damages. For the reasons heretofore given we are not disposed to question the judgment of the court in this respect. From examination of the record we find it very difficult to determine the extent of the use of the land by defendants, and aside from the varying opinions of some of the witnesses, the value of the use. We are persuaded that the decree of the court who tried the case should be sustained. The case should therefore be affirmed. — Affirmed on both appeals.
OLIVER, C.J., and HAMILTON, STIGER, SAGER, BLISS, and MILLER, JJ., concur. *Page 50 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430747/ | [1] On March 1, 1920, defendants, Anna B. Zapf (and husband, now deceased), J.P. Foley and wife, executed to plaintiffs, John and Henry Warnecke, their promissory note for $20,000 secured by a mortgage on two hundred acres of land in Clayton county. On April 1, 1942, the guardian of the Warneckes filed in the district court of Clayton county, in the guardianship matter, an "Application for Citation and Order," stating that Anna B. Zapf then owed $1,150 on the mortgage note but claimed a credit of $825 to which she was not entitled. The application asked that Mrs. Zapf be required to appear and that the amount due on the note be found to be $1,150. Mrs. Zapf filed answer to the application asserting she was entitled to the credit of $825 and asking that it be allowed.
Hearing was had on the above application and answer after it was stipulated that the matter be transferred to the "equity side" and tried as in equity. The court found that Mrs. Zapf was not entitled to the disputed credit of $825 and on May 25, 1942, entered judgment for $1,150 in favor of the guardian and against Anna B. Zapf "on account of the note as aforesaid." Mrs. Zapf appealed from that judgment to this court, where it was affirmed on November 24, 1942. Warnecke v. Zapf, No. 46171, Iowa, 6 N.W.2d 313.
The suit now before us was brought on July 28, 1942, by the Warneckes (whom we call plaintiffs), through their guardian, against defendants, Mrs. Zapf and Mr. and Mrs. Foley, to recover $167.32 because of redemption by plaintiffs on January 30, 1937, of the mortgaged premises from tax sale held on January 4, 1937, and to foreclose the mortgage to make the amount. Defendants contend that plaintiffs are precluded because of cause No. 46171 from maintaining the present suit, that to permit recovery would violate the rule against splitting causes of action, and that there *Page 350
was a settlement. Upon the trial it was shown that defendants failed to pay the taxes for the year in question, redemption was made as claimed and plaintiffs have never been reimbursed therefor. The trial court dismissed the petition and plaintiffs have appealed.
On September 16, 1943, defendants filed in this court a certificate of the clerk of the trial court that the judgment in No. 46171 was paid on January 25, 1943, which was after the trial and dismissal of the present suit and the appeal to this court.
I. Each side relies upon a well-established rule of law. Plaintiffs advance the rule that a mortgagee may sue on the note, recover judgment, and thereafter maintain a separate action to foreclose the mortgage. Beckett v. Clark, 225 Iowa 1012, 282 N.W. 724, 121 A.L.R. 912, and annotation 917, 918; Equitable L. Ins. Co. v. Rood, 205 Iowa 1273, 1279, 218 N.W. 42, and cases cited; 1 C.J.S. 1324, 1325, section 103c (6); 37 Am. Jur. 27, 28, section 523. Defendants advance the principle, equally well settled, that taxes paid by a mortgagee before the foreclosure of his mortgage cannot thereafter be recovered. To allow recovery under such circumstances would permit the mortgagee to split his cause of action and try his case piecemeal. Monroe v. Busick,225 Iowa 791, 281 N.W. 486, and cases cited; Dickinson v. White,64 Iowa 708, 21 N.W. 153; 1 Am. Jur. 486, section 103; annotation 84 A.L.R. 1366, 1387, 123 A.L.R. 1248, 1256.
Defendants argue that cause 46171 was, in effect, a foreclosure of the mortgage. We think, however, the most that can be claimed is that the former case was an action on the note or the debt evidenced thereby and not a foreclosure of the mortgage. Nor can we agree with defendants that the present claim for taxes was in fact litigated in the former suit. Even so, to allow recovery here as against Mrs. Zapf would violate the rule against splitting a cause of action.
An adjudication in a former suit between the same parties on the same cause of action is final as to all matters which could have been presented to the court for determination. A party must litigate all matters growing out of his cause of action at one time and not in separate actions. A party is not permitted to split his demand. Schnuettgen v. Mathewson, 207 Iowa 294, 301, *Page 351
222 N.W. 893, and cases cited; Bagley v. Bates, 223 Iowa 836, 841, 842, 273 N.W. 924, and cases cited; 1 C.J.S. 1306, section 102b; 1 Am. Jur. 480, 481, section 96.
Plaintiffs concede their only claim to recovery rests on the provision of the mortgage permitting sums paid for taxes to be added to the mortgage debt. The amount paid for taxes, together with other amounts due on the mortgage debt, constituted but a single and indivisible demand, which existed only by virtue of the mortgage. Dickinson v. White, 64 Iowa 708, 21 N.W. 153; Monroe v. Busick, 225 Iowa 791, 794, 281 N.W. 486; Criswell v. McKnight, 120 Neb. 317, 232 N.W. 586, 84 A.L.R. 1361, 1364, and annotation 1366, 1387; annotation 123 A.L.R. 1248, 1256. As to defendant Mrs. Zapf, there is no reason why plaintiffs could not have established their claim for taxes in the former suit to determine the amount of the indebtedness.
[2] II. As to defendants Foleys, who are jointly and severally liable on the note and mortgage and own an undivided interest in the mortgaged land, the situation is different. They were not parties to cause 46171 and no relief was there asked against them. They were and are nonresidents of Iowa. No notice in 46171 was served upon the Foleys nor was their appearance entered. It is true Mrs. Zapf testified in that case that she represented the Foleys. (Mr. Foley is Mrs. Zapf's brother.) The judgment in 46171 was against Mrs. Zapf only, although it contained a finding that she represented Mr. and Mrs. Foley as agent.
The prayer of plaintiffs' petition in the present suit is sufficient to permit the entry of judgment in rem for the amount plaintiffs paid for taxes, with interest and costs, against the Foleys' interest in the mortgaged land and its enforcement against that interest. Plaintiffs do not ask personal judgment against the Foleys. We hold that plaintiffs are entitled to that much relief and that, as to the Foleys, plaintiffs have not split their cause of action. The rule against splitting a cause of action applies only when the several actions are between the same parties. 1 C.J.S. 1310, 1312, section 102f (3); Nelson v. First Nat. Bk., 199 Iowa 804, 805, 202 N.W. 847.
Furthermore, plaintiffs were not required to make the Foleys parties defendant in 46171, even if they had been residents *Page 352
of this state and jurisdiction over them could have been obtained. And the judgment against Mrs. Zapf is not a bar to the present suit as against the Foleys. Sections 10975, 10976, Code, 1939, provide:
"Where two or more persons are bound by contract * * * whether jointly only, or jointly and severally, or severally only, including the parties to negotiable paper * * * or by any liability growing out of the same, the action thereon may, at the plaintiff's option, be brought against any or all of them. * * *
"An action or judgment against any one or more of several persons jointly bound shall not be a bar to proceedings against the others."
Aside from the above statutes, even under the common law, plaintiffs were not required to join the Foleys with Mrs. Zapf as defendants in the former suit, since their liability was joint and several and not joint only. 39 Am. Jur. 908, section 39. Indeed, at common law even joint obligors living beyond the jurisdiction of the court, who could not be subjected to personal service, were not necessary parties. 39 Am. Jur. 907, section 38. And the rule against splitting a cause of action has no application where the separate actions are against debtors jointly and severally liable. 1 C.J.S. 1340, section 106b; Marine Trust Co. v. Roden, 218 Mich. 693, 188 N.W. 397.
One of the underlying reasons for the rule against splitting a cause of action is that no person should be unnecessarily harassed with a multiplicity of suits or subjected to costs and expenses incident to two or more suits on the same cause of action. "And of course when the reason of the rule ceases, the rule has no application." Wilkes v. Hood, 237 Ala. 72, 76,185 So. 748, 752, and cases cited; 1 Am. Jur. 480, 481, section 96. So far as shown, this is the first suit against the Foleys to recover any part of the mortgage debt or to foreclose the mortgage.
[3] III. Defendants rely upon Code section 12375, which provides:
"If separate actions are brought in the same county on the bond or note, and on the mortgage given to secure it, the plaintiff *Page 353
must elect which to prosecute. The other will be discontinued at his cost."
We need not determine whether this statute may be invoked by defendant Mrs. Zapf, since we have held plaintiffs are not entitled to recover against her. It may be observed, however, that the present suit was not commenced until after cause 46171 had proceeded to judgment. We have indicated that section 12375 applies only where the actions on the note and mortgage are pending at the same time. Then an election may be required as to which action will proceed. Des Moines Sav. Bk. v. Arthur,163 Iowa 205, 213, 143 N.W. 556, Ann. Cas. 1916C 498; Iowa Title L. Co. v. Clark Bros., 213 Iowa 875, 881, 237 N.W. 336, 240 N.W. 266. As heretofore stated, it is well settled that a mortgage may be foreclosed after judgment has been entered on the note. Beckett v. Clark, 225 Iowa 1012, 1014, 282 N.W. 724, 121 A.L.R. 912, and cases cited.
In any event, section 12375 affords no defense to the Foleys. As stated, this is the only action ever brought against them on either the note or mortgage. Obviously, during the pendency of this suit there has been no other action pending against them which plaintiffs might elect to prosecute. Having some application here is Parsons v. Kitt, 228 Iowa 654, 656, 292 N.W. 831, 832, where we said the seeming purpose of section 12375 "is to afford a mortgagor-defendant a method by following which he may be able to relieve himself of the burden of superfluous litigation and procedure, in cases where a mortgagee has separated into two actions what could have been equally well prosecuted and adjudicated in one action brought on both note and mortgage."
[4] IV. It is also contended that the claim now asserted was included in a compromise settlement made on August 24, 1937, between plaintiffs and Mrs. Zapf. Defendants pleaded that this settlement "was partly in writing and partly oral." The written parts consist of Exhibit 4 in cause 46171 and the notations on the mortgage note, both set out in our opinion in 6 N.W.2d 313. It is doubtful if this defense is available to Mr. and Mrs. Foley, who were not parties to the compromise and not bound thereby. 15 C.J.S. 741, section 24b; idem, 747, 748, *Page 354
section 28; idem, 716, section 5. However that may be, we are satisfied there was no intention on the part of either plaintiffs' agent, Reimer, or Mrs. Zapf to settle this tax item on August 24, 1937. Mrs. Zapf testified: "There never was a word mentioned about taxes on the 24th day of August 1937." It is true she also gave her conclusion that "everything was supposed to be settled."
Plaintiffs' agent, Reimer, testified that on August 24th, the question of this tax item arose; that Mrs. Zapf said she had always paid her taxes and could prove it by her checks; he then called the county treasurer and was told the property had been sold for taxes; that Mrs. Zapf was going to look up her checks and "have that out" with the treasurer; she said if there were any taxes to be paid she would pay them later; that subsequently he approached Mrs. Zapf for payment of these taxes but she said to forget it, she had paid for the farm often enough. There is testimony from Mrs. Zapf tending to corroborate part of Reimer's version.
Whether we accept the testimony of Reimer or of Mrs. Zapf that nothing was said about the taxes when this "settlement" was made, it is clear that no one intended to include this tax item in the compromise made on August 24th. There is no reason why we should give to the agreement a purpose or effect which was never intended. Our primary object should be to effectuate the intention of the parties. Jordan v. Brady T. S. Co., 226 Iowa 137, 155, 284 N.W. 73; 15 C.J.S. 735, section 21; idem, 745, section 27; 11 Am. Jur. 271, section 24.
Other matters argued have been considered but need not be mentioned.
As to defendant Mrs. Zapf the decree is affirmed. Plaintiffs are entitled, however, to judgment in rem for the amount paid by them to redeem the property from tax sale, with interest and costs, against the undivided interest of defendants J.P. Foley and wife, and, if not paid, to have said interest sold to satisfy the judgment. — Affirmed in part; reversed in part.
All JUSTICES concur. *Page 355 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031279/ | NUMBER 13-16-00359-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
ALLYSON R. OLIVER AND WILLIAM C. OLIVER, Appellants,
v.
WELLS FARGO BANK, N.A., Appellee.
____________________________________________________________
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam
Appellants, Allyson R. Oliver and William C. Oliver, perfected an appeal from a
judgment rendered against them in favor of appellee, Wells Fargo Bank, N.A. On August
8, 2016, the Clerk of the Court notified appellants that they were delinquent in remitting a
$205.00 filing fee. The Clerk of this Court notified appellants that the appeal was subject
to dismissal if the filing fee was not paid within ten days from the date of receipt of this
letter. See TEX. R. APP. P. 42.3(c).
On August 10, 2016, the Clerk of this Court notified appellant that the clerk's record
in the above cause was originally due on June 16, 2016, and that the deputy district clerk,
Maria Flores, had notified this Court that appellants failed to make arrangements for
payment of the clerk's record. The Clerk of this Court notified appellants of this defect
so that steps could be taken to correct the defect, if it could be done. See TEX. R. APP.
P. 37.3, 42.3(b),(c). Appellants were advised that, if the defect was not corrected within
ten days from the date of receipt of the notice, the appeal would be dismissed for want of
prosecution. The notice was sent to appellants’ address by certified mail return receipt
requested; however, the certified mail was returned as “not deliverable as addressed
unable to forward.”
Texas Rule of Appellate Procedure 9.1(b) requires unrepresented parties to sign
any document filed and "give the party's mailing address, telephone number, fax number,
if any, and email address." See TEX. R. APP. P. 9.1(b). Appellants have not provided
this Court with a forwarding address nor taken any other action to prosecute this appeal.
Appellants have failed to respond to this Court’s notices and have failed to pay the
filing fee. Accordingly, the appeal is DISMISSED FOR WANT OF PROSECUTION.
See TEX. R. APP. P. 42.3(b), (c).
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/4141875/ | OFFICEOFTHEACTORNEY GENERALOFTEXAS
AUSTIN
Eoncr&bleB. T. valten
county Auditor
8mith county
Tyler, Texar
Dear Sir:
Tour rrrqueat ro aen reaelvoa ana
osrcfully 6oniuiider.d
by t we quota tma your
xequQmt 88 f0llow6:
on, our CcuAty bar
to help bup work
mtiue0r, ana can-
JLot that is set up,
ro plot on which all
The WPA will rur
k the garden, as well ~IYtc
8, but each sahool m-t fu~?nirh
of the expanee and buy the itans
, fertilizer,*to., es set out above.
%inca the mahools are not in good finan-
cial oonditioa gcsnemlly, they bare (?skedthe
County for asai8~Ace.”
Honorable8. T. Waltere, Page 8
ArtlclO 2351, R. C. s., provideA:
"ICaohooamleeionera*oourt ~hallr
0. . .
"11. ?rOriflefor the Aupport of paupem
aAa such idiot8 ana itmddcr AA 0-0t be Ad-
mitted iAt0 the hmatic a8ylua, reAlde~8r of
thelr county, who are unable to nupport them-
AOlVO8. By the term re8iAent aa UBOQ herein,
la meant a pereon who haa boon a bolu tldr
inhabitantof the oountp not leAA tbAA rix
IDOAthSand Of the State AOt 1088 t&A AA@
Y-.
nlhsA tha ~05i8miOAeX'A CoUrtA WOI’O Ax-
preeely given the powor and duty to *prorIde
Sor the Aup ort of p~upelm * by noaewary ir-
plieatloo.ttopwAre alothe$ ribh the authority
to a0 all the iAOideAtX%ithing8 nwaraary to
provide for their ~tipporC. Stat a8 the power
to snot P oourthowe and jallsarrlaa with
lt authority to aoquiro a buildlag site.
Yoore f. Alred, 277 8. W. 787. AA~ juAt a8
the power of gnensl oontrol ofor sil roaQ6,
blgbmays, rerrlm em% briagecl,naouwrily
lmpliea authority to oo~~truot a dniruga
dltoh to protect Auoh r-8, brld@eA, an4 hi&i-
wayr fro23flood watera.:~
::lXl Pare County 1.
&lam, eupm. See al.so,Texrell v. apark8, 158
a. WY.619.
*Authorityto provldo food arnd olothlng
for ouch putrposerneoeesar%ly i~oluder tha
power to p08aeu, atore and greaarve the same
to that end. FUCthermore, it may be mire
~o~noalc~land doelrable to dlatrlbuts Auoh Aom-
modlties, rather than hate the rsaiplentaoone
or send for the same. Powor to provide ruah
food and oloth&a$ would lnalrda the powW TV
deliver it, aad authority to aaquiro the nm-
essary mean of dellvery muld foll,m.
HoWrable B. T. Vialterm,
Page 3
Wbec Commiesloners*Courtiswere burdsn-
ea with the duty or woviaing support for suoh
persocs, they #ore given the sound dlssretlon
of deternlnlagthose whom they were required to
provide for under the terms OS the statute.
By neoessary implloetloAthey aoqulred the power
to es@oy such help as might be neoessary to
properly alit out thoss entltlsd to mush rsller
aAd to investigateand asaertaln the extent ana
IUCOUAtOr thS AOOa.
"The mot that the Federal ~oternmeatpro-
vldea the somodltles does cot, in our O~IA~OA,
roAdor the authority of the Cfamml.sslon~rs~
Court of Hunt County any leas in the dlstribu-
tion thereof that would be true If the Gounty
iteelf wore fUrnishlAgsuah provisions,so far
as the state laws wre aswmer~ed.,
Wi goes without ~aylry that the dl6omtloA
resldiag la the Comlsslonern’ Courts in suah
atters must be soundly exorolsod. If the m-
alplents 0r suoh roll& am not so indigimt as
to fall wlthln ths terms or the statute, the
Cmmlssloners* Court n0ula bs uithoub sutborlty
t0 do any of the thing8 you faqUlm about. . . .a
Ws enolose herewith a copy OS said opinion tar your
1cforisatlon.
It 18 oAr opinion that ths Ooa!AisdoJlerA' court
wsultlhare authsrlty to expend sotmtp fuado ts assist la a
consunity garden as set out la your latter for the aouuty
hst lunoh profeot for ind&eAt ohlldmn ootmlngui8hin
the provisions or 6UbditiSiOA11 or Arti95 S 351 8. C. S.,
rwm. In other swrds, the county has no authority to make
oontrlbutloasfor the purporee stated in your inquiry for
th4:?
bcAsfiC of school ohildren genetally, but only those or
whose parents fall within ths o~es~fioatlon llaaaed in the
above quotitl.rja taken iron our opbilon enslosed herewith.
Very truly yours | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3211915/ | IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JAMES LOPEZ,
Appellant,
v. Case No. 5D15-2119
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed June 3, 2016
Appeal from the Circuit Court
for Volusia County,
Terence R. Perkins, Judge.
James S. Purdy, Public Defender, and Noel
A. Pelella, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Allison Leigh Morris,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
James Lopez appeals the trial court’s denial of his motion to withdraw his plea.
Finding Lopez was improperly denied conflict-free counsel for the hearing of that motion,
we reverse.
Lopez was charged with a variety of serious offenses in four separate cases. He
entered an open plea to those charges and the trial court ordered a pre-sentence
investigation because the State sought sentencing under the Prison Releasee Re-
offender statute.
Prior to sentencing, Lopez filed a pro-se motion to withdraw his plea, alleging that
his public defender had coerced him into entering the plea. Lopez was entitled to
appointment of conflict-free counsel for the hearing on that motion. See Harvey v. State,
4 So. 3d 1266, 1267 (Fla. 5th DCA 2009).
REVERSED and REMANDED for a new hearing on the motion to withdraw plea.
COHEN, WALLIS and LAMBERT, JJ., concur.
2 | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211012/ | 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
A15-0829
State of Minnesota,
Respondent,
vs.
Scott Jeffrey Hanson,
Appellant.
Filed May 23, 2016
Affirmed
Johnson, Judge
Cottonwood County District Court
File No. 17-CR-14-256
Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and
Nick Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
A Cottonwood County jury found Scott Jeffrey Hanson guilty of assault and
possession of an explosive device by a prohibited person. The jury’s verdict is based on
evidence that Hanson stabbed a neighbor and threatened a law-enforcement officer with a
homemade bomb. On appeal, Hanson argues that the district court erred by denying his
motion to suppress evidence and by misstating the law of self-defense in its jury
instructions. We affirm.
FACTS
In July 2014, Hanson and T.J.P. were neighbors in the city of Jeffers. One evening
they had a physical altercation. Three witnesses gave conflicting accounts of the
altercation at trial.
T.J.P. testified for the state that he shared a driveway with Hanson and stored a
vehicle there for a few days while planning to take it to his auto-body shop. One day T.J.P.
noticed that the vehicle’s battery had been replaced, that the battery cables had been
disconnected, and that the gas lines had been cut. Upon making this discovery, T.J.P. made
a loud accusatory statement that was directed at Hanson. T.J.P. took the vehicle to his
shop, where he worked on it for the remainder of the day. When he returned home at
approximately 9:00 p.m., Hanson ran toward him swinging a rake. T.J.P. was able to take
the rake away from Hanson and told Hanson to leave. When T.J.P. turned away, Hanson
stabbed him in the back. T.J.P. threw Hanson to the ground, and Hanson stabbed T.J.P. in
the ankle. Hanson’s girlfriend, J.C., kicked T.J.P. while he was on the ground. Hanson
and J.C. then ran back into Hanson’s house. T.J.P. did not see the knife well enough to
describe it.
J.C. testified for the defense that she was inside Hanson’s house when she heard
T.J.P. and Hanson outside, yelling at each other. When she went outside, she saw T.J.P.
2
hit Hanson with the rake and saw Hanson try to block the rake. After a lull in the fighting,
J.C. testified that she saw T.J.P. punch Hanson in the head five to eight times. The fight
ceased, and T.J.P. walked home. C.S., a friend of Hanson, testified for the defense that she
also was at Hanson’s house that evening, on his porch. C.S. saw T.J.P. hit Hanson with a
rake and saw Hanson hit T.J.P. with a stick. C.S. testified that the fight ended when J.C.
came outside and told the men to stop.
A person at T.J.P.’s home called 911. Cottonwood County Deputy Sheriff Justin
Derickson was the first law-enforcement officer to arrive. While waiting for back-up
officers to arrive, Deputy Derickson observed C.S. exit Hanson’s house through a back
door. Deputy Derickson and two other officers approached Hanson’s back door and
knocked. Hanson ran up the basement stairs and kicked the door shut. Shortly thereafter,
J.C. exited the house, leaving the back door open enough for Deputy Derickson to see
inside the house and down the basement stairs. Deputy Derickson called out to Hanson.
Hanson appeared at the bottom of the stairs holding what Deputy Derickson described as
a “homemade bomb” in one hand and a lit propane torch in the other hand. Deputy
Derickson described the homemade bomb as a spray can with a large firecracker taped to
the side of it. Hanson climbed the steps toward Deputy Derickson, bringing the torch closer
to the firecracker fuse with each step. Deputy Derickson asked Hanson what he was going
to do with the torch; Hanson responded by saying, “I’m going to f--k you up.” Deputy
Derickson closed the door, and the officers moved away from the house.
Several hours later, Hanson exited the house and was arrested. Meanwhile, T.J.P.
was transported to a nearby hospital, where his heart stopped beating and he lost
3
consciousness due to significant blood loss. He later was airlifted to a hospital in Sioux
Falls, South Dakota. He sustained long-term nerve damage to his foot.
After Hanson was arrested, Deputy Derickson applied for a warrant to search
Hanson’s house for, among other things, a “[k]nife or sharp object that could cause death
or bodily harm or any sharp weapons or instruments that also could cause death or bodily
injury.” The district court issued a warrant that authorized officers to search for simply
“[a] knife.” Officers executed the search warrant and found, among other things, a rake,
eight knives, a propane torch, and the homemade bomb that Deputy Derickson had seen.
One of the knives appeared to have blood on its blade. That knife was sent to the BCA for
DNA analysis along with DNA samples from T.J.P. and Hanson. The blood on the blade
matched T.J.P.’s blood. DNA found on the handle of the knife matched genetic material
of both T.J.P. and Hanson.
The state charged Hanson with five offenses: (1) first-degree assault of T.J.P., in
violation of Minn. Stat. § 609.221, subd. 1 (2012); (2) second-degree assault of T.J.P. with
a dangerous weapon and inflicting substantial bodily harm, in violation of Minn. Stat.
§ 609.222, subd. 2 (2012); (3) second-degree assault with a dangerous weapon of Deputy
Derickson, in violation of Minn. Stat. § 609.222, subd. 1; (4) second-degree assault with a
dangerous weapon of another officer, in violation of Minn. Stat. § 609.222, subd. 1; and
(5) possession of an explosive device by a prohibited person, in violation of Minn. Stat.
§ 609.668, subd. 2(b) (2012).
Hanson moved to suppress some of the evidence that was seized during the search
of his home. The district court granted the motion in part and denied it in part. The district
4
court concluded that the rake, propane torch, homemade bomb, and several other items
were lawfully seized because officers saw them in plain view during the search. But the
district court also concluded that several other items were not lawfully seized because there
was no nexus between the suspicions of criminal activity and the place searched.
The case was tried to a jury in January 2015. Before trial, the state dismissed count
4. In his opening statement, Hanson’s attorney conceded that Hanson stabbed T.J.P. but
asserted that Hanson was acting in self-defense. In his closing argument, Hanson’s
attorney relied on a theory of self-defense. The jury found Hanson guilty on all counts.
The district court imposed prison sentences of 159 months on count 1; 21 months on count
3, to be served consecutively with the sentence on count 1; and 60 months on count 5, to
be served concurrently with the sentences on counts 1 and 3. Hanson appeals.
DECISION
I. Specificity of Search Warrant
Hanson first argues that the district court erred by denying his motion to suppress
the evidence that was obtained in the execution of the search warrant on the ground that
the search warrant was not sufficiently specific.
The Fourth Amendment to the United States Constitution guarantees the “right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures” and states that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” U.S. Const. amend. IV (emphasis added); see also
Minn. Const. art. I, § 10. Hanson’s first argument is based on the language that is
5
highlighted above. The particularity requirement prevents a “general, exploratory
rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91
S. Ct. 2022, 2038 (1971). The particularity requirement also “prevents the seizure of one
thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48
S. Ct. 74, 76 (1927). “A particular warrant also assures the individual whose property is
searched or seized of the lawful authority of the executing officer, his need to search, and
the limits of his power to search.” Groh v. Ramirez, 540 U.S. 551, 561, 124 S. Ct. 1284,
1292 (2004) (quotation omitted). “[A] search conducted pursuant to a warrant that fails to
conform to the particularity requirement of the Fourth Amendment is unconstitutional.”
Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5, 104 S. Ct. 3424, 3427 n.5 (1984).
Hanson’s primary challenge to the particularity of the search warrant is that the
warrant said simply “a knife,” without describing a particular type or size of knife. The
argument made by Hanson’s appellate attorney is different from the argument previously
made by his trial attorney. In the district court, Hanson’s attorney argued that the search
warrant was invalid on the ground that it did not describe anything other than a knife and,
thus, did not justify the seizure of any evidence that was “not a knife.” At the omnibus
hearing, Hanson’s attorney reiterated that the issue was “whether the search warrant or the
seizure of items from the house that were not specifically knives exceeded the scope of the
search warrant.” Hanson’s attorney also stated that he was asking the district court to
suppress “any item that is not a knife.” When the court asked for clarification, Hanson’s
attorney confirmed that he was asking the district court to suppress only the evidence
“[t]hat is not a knife.”
6
“Defenses, objections, issues, or requests that can be determined without trial on the
merits must be made before trial by a motion to dismiss or to grant appropriate relief.”
Minn. R. Crim. P. 10.01, subd. 2. Any such motion “must include all defenses, objections,
issues, and requests then available,” and a defendant’s “[f]ailure to include any of them in
the motion constitutes waiver,” absent good cause. Id.; see also Minn. R. Crim. P. 11 cmt.
(stating that “failure to raise known issues at the Omnibus Hearing” pursuant to rule 11.02
“waives that issue”). Hanson’s argument that the knife should have been suppressed is
waived because he expressly limited his suppression motion and did not ask the district
court to suppress the knife.1 See State v. Bauer, 512 N.W.2d 112, 115-16 (Minn. App.
1994) (concluding that appellant waived challenge to “general scientific credibility of”
DNA evidence by limiting suppression motion to challenge to DNA probability evidence),
aff’d, 516 N.W.2d 174 (Minn. 1994).
1
Even if we were to consider the argument, we would reject it on the merits. “Where
the precise identity of goods cannot be ascertained at the time the warrant is issued, naming
only the generic class of items will suffice . . . .” State v. Miller, 666 N.W.2d 703, 713
(Minn. 2003) (quotation omitted). “[W]hen determining whether a clause in a search
warrant is sufficiently particular, the circumstances of the case must be considered, as well
as the nature of the crime under investigation and whether a more precise description is
possible under the circumstances.” Id. In this case, at the time of the warrant application,
the investigating law-enforcement officers did not have any details about the knife. Deputy
Derickson knew only that T.J.P. had been stabbed with a knife. T.J.P. was under medical
care in a hospital in another state. T.J.P.’s trial testimony indicates that, even if he had
been able to communicate with Deputy Derickson at that time, he would have been unable
to provide any details about the knife. The search warrant was sufficiently particular
because “a knife” was as specific as possible given what law enforcement knew at the time
they applied for the warrant. See State v. Hannuksela, 452 N.W.2d 668, 673-74 (Minn.
1990) (concluding that warrant was sufficiently particular because officers did not
“definitely know all of the circumstances surrounding” the offense).
7
Hanson’s secondary challenge to the particularity of the search warrant is that the
warrant made no reference to the incriminating items that were found, namely, the
homemade bomb. This is the argument that his trial attorney presented to the district court.
The district court did not deny the motion to suppress on the ground that the warrant
satisfied the particularity requirement with respect to the homemade bomb. Rather, the
district court reasoned that the homemade bomb was properly seized on the basis of the
plain-view doctrine. See State v. DeWald, 463 N.W.2d 741, 747 (Minn. 1990). In his
appellate brief, Hanson does not challenge the district court’s reasoning because he does
not include any argument that the district court erred in its application of the plain-view
doctrine.
Thus, the district court did not err by denying Hanson’s motion to suppress
evidence.
II. Jury Instruction
Hanson also argues that the district court erred in its jury instruction on the issue of
self-defense. Specifically, Hanson contends that the district court’s instruction on self-
defense includes elements of proof that are not included in the self-defense statute. See
Minn. Stat. § 609.06, subd. 1(3) (2012).
The law applicable to Hanson’s argument is as follows:
A district court must instruct the jury in a way that
“fairly and adequately explain[s] the law of the case” and does
not “materially misstate[] the applicable law.” State v. Koppi,
798 N.W.2d 358, 362 (Minn. 2011). An appellate court
reviews jury instructions “as a whole to determine whether
[they] accurately state the law in a manner that can be
understood by the jury.” State v. Kelley, 855 N.W.2d 269, 274
8
(Minn. 2014). A district court has “considerable latitude” in
selecting the language of jury instructions. State v. Gatson,
801 N.W.2d 134, 147 (Minn. 2011). Accordingly, this court
applies an abuse-of-discretion standard of review to a district
court’s jury instructions. Koppi, 798 N.W.2d at 361.
State v. Moore, 863 N.W.2d 111, 118 (Minn. App. 2015) (alterations in original), review
denied (Minn. July 21, 2015).
Before trial, Hanson submitted proposed jury instructions. On the issue of self-
defense, Hanson proposed a pattern jury instruction commonly known as CRIMJIG 7.06.
See 10 Minnesota Dist. Judges’ Ass’n, Minnesota Practice – Jury Instruction Guides,
§ 7.06, at 29 (5th ed. Supp. 2010).2 The district court essentially adopted CRIMJIG 7.06
by instructing the jury on count 1 as follows:
Self-defense. The defendant is not guilty of assault in
the first degree if the defendant used reasonable force against
[T.J.P.] to resist an offense against the person, and such an
offense was being committed, or the defendant reasonably
believed that it was. It is lawful for a person who is being
assau--- who is being assaulted, and who has reasonable
grounds to believe that bodily injury is about to be inflicted on
a person to defend from an attack. In doing so, the person may
use all force and means that the person reasonably believes to
be necessary, and that would appear to reasonable person, in
similar circumstances, to be necessary to prevent an injury that
appears to be imminent. An assault is the intentional infliction
of bodily harm on another. The kind and degree of force a
person may lawfully use in self-defense is limited by what a
reasonable person in the same situation would believe to be
necessary. Any use of force beyond that is regarded by the law
as excessive. The State has the burden of proving beyond a
reasonable doubt that the defendant did not act in self-defense.
2
This pattern jury instruction recently was edited and renumbered as CRIMJIG
7.05. See 10 Minnesota Dist. Judges’ Ass’n, Minnesota Practice – Jury Instruction Guides,
§ 7.05, at 133-34 (6th ed. 2015).
9
Because Hanson did not object to the jury instruction he challenges on appeal (and,
in fact, actually proposed it), this court will review only for plain error. See Minn. R. Crim.
P. 31.02; Gatson, 801 N.W.2d at 146-47; see also State v. Goelz, 743 N.W.2d 249, 258
(Minn. 2007) (analyzing invited error under plain-error test). Under the plain-error test, an
appellant is entitled to relief on an issue to which no objection was made at trial only if
(1) there is an error, (2) the error is plain, and (3) the error affects the appellant’s substantial
rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If these three requirements
are satisfied, an appellant also must satisfy a fourth requirement, that the error “seriously
affects the fairness and integrity of the judicial proceedings.” State v. Little, 851 N.W.2d
878, 884 (Minn. 2014). If an appellate court concludes that any requirement of the plain-
error test is not satisfied, the appellate court need not consider the other requirements. State
v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
Hanson contends that the district court’s instruction is inconsistent with the plain
language of the self-defense statute, which provides that “reasonable force may be used
upon or toward the person of another without the other’s consent when the following
circumstances exist or the actor reasonably believes them to exist: . . . when used by any
person in resisting or aiding another to resist an offense against the person.” See Minn.
Stat. § 609.06, subd. 1(3). The supreme court has interpreted section 609.06, subdivision
1(3), by stating that the defense of self-defense applies if four conditions exist:
(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that he
or she was in imminent danger of . . . bodily harm; (3) the
existence of reasonable grounds for that belief; and (4) the
10
absence of a reasonable possibility of retreat to avoid the
danger.
State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014) (quoting State v. Basting, 572 N.W.2d
281, 285-86 (Minn. 1997)).
The district court’s instruction on self-defense incorporated the second and third of
the four requirements of self-defense. The supreme court has approved of pattern jury
instructions concerning self-defense that are substantially similar to the pattern instruction
on which the district court relied. See, e.g., State v. Radke, 821 N.W.2d 316, 327 (Minn.
2012); State v. Hare, 575 N.W.2d 828, 832-33 (Minn. 1998); State v. Edwards, 343
N.W.2d 269, 277 (Minn. 1984). The district court in this case hewed closely to the
language of the pattern instruction. Most importantly, Hanson does not argue that the
district court’s instruction is inconsistent with the caselaw on self-defense. Accordingly,
Hanson cannot show that the challenged jury instruction does not “fairly and adequately
explain the law of the case” or that it “materially misstate[d] the applicable law.” See
Koppi, 798 N.W.2d at 362.
Thus, the district court did not err in its instruction on self-defense.
Affirmed.
11 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4323149/ | Order entered October 18, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00770-CV
DOW JONES & COMPANY, INC., Appellant
V.
HIGHLAND CAPITAL MANAGEMENT, L.P., AND PATRICK DAUGHERTY,
Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-04005
ORDER
Before the Court is appellee Highland Capital Management, L.P.’s October 16, 2018
Unopposed Motion for Leave to File Response to Notice of Supplemental Authority. We GRANT
the Motion and ORDER that the response we received on October 16, 2018 is filed as of the date
of this order.
/s/ DAVID J. SCHENCK
JUSTICE | 01-03-2023 | 10-22-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1116165/ | 197 Kan. 567 (1966)
419 P.2d 896
THE STATE OF KANSAS, Plaintiff, Appellee,
v.
LeROY GARBER, Defendant, Appellant.
No. 44,583
Supreme Court of Kansas.
Opinion filed November 5, 1966.
E. Dexter Galloway, of Hutchinson, argued the cause and was on the brief for the appellant.
Richard J. Rome, county attorney, argued the cause, and Raymond F. *568 Berkley and Lane H. Cronhardt, assistant county attorneys, were with him on the brief for the appellee.
The opinion of the court was delivered by
HARMAN, C.:
This appeal involves the construction and constitutionality of our compulsory school attendance law as applied to the Amish people.
The action was commenced in the district court of Reno County, Kansas, by the filing of an information charging that defendant LeRoy Garber failed on or about October 18, 1965, to require his fifteen year old daughter, Sharon Garber, then under his control, to attend continuously a public school or a private, denominational or parochial school taught by a competent instructor, in violation of K.S.A. 1965 Supp. 72-4801.
A jury was waived and the action was tried to the court on a written agreed statement of facts. Defendant was found guilty as charged. Subsequently he filed motions to amend the findings and judgment and for a new trial which were all overruled, and defendant was sentenced to pay a fine of $5.00 and costs. His appeal to this court from that sentence presents two questions: First, whether under the facts he is guilty of any offense and, second, whether as applied to him our compulsory school attendance law violates his constitutionally guaranteed religious freedom.
The stipulation of the parties reveals the following pertinent facts: Defendant LeRoy Garber is a member of the Old Order Amish Mennonite Church. He is the father of Sharon Garber, who was born September 18, 1950, and who is under his control. Sharon completed the eighth grade in the public schools, finishing at Elreka, Reno County, Kansas, in May of 1964; since that time she has not been enrolled as a student at any public school in Reno County, Kansas. Her home school district is the Partridge Rural High School District in Reno County which commenced its 1965-1966 school year on August 25, 1965, to run for 180 days. In September of 1964 Sharon enrolled as a high school student in a correspondence school in Chicago, Illinois, known as the American school, and at all times applicable herein she has continued to take certain correspondence courses contained in what is known as a vocational cultural plan and has made high grades. This school is approved by the United States Office of Education for private home study under certain laws whereby tuition may be paid by the federal *569 government. On September 3, 1965, following the passage by the 1965 legislature of our present law requiring school attendance up to age sixteen, a group of Amish people in the Yoder community in Reno County, Kansas, established a school for their children known as the Harmony school. This school was organized pursuant to a written plan in accordance with the Amish religious faith and way of life. Its pupils are limited to those who have completed the eighth grade in public schools but have not attained the age of sixteen. It is taught by an Amish farmer whose formal education has consisted of eight grades in the public schools. Formal classes are held in the Harmony school one morning each week. On each of the remaining four school days students spend at home one hour in study and five hours in pursuit of vocational training upon which a written report is submitted to the instructor. All instruction is given in the English language except in a German reading course in which the German bible is used. Emphasis is placed on the vocational home training consisting generally of farming projects for boys and home economics and home management for girls. On October 5, 1965, defendant was served with a statutory notice of truancy (K.S.A. 72-4802) of his daughter Sharon. Thereafter and on October 15, 1965, Sharon enrolled in the Harmony school and was so enrolled on October 18, 1965.
The agreed statement of facts also contains a history of the Amish people and a recital of their religious tenets and practices. Their religion stems from a seventeenth century branch of the Mennonite Church and they adhere strictly to the beliefs, customs and traditions embraced by their forefathers. Extremely conservative, they are a quiet, industrious, plain people who cherish three great values: A devout religion, an agrarian way of life, and a cohesive family and community. These values are deeply rooted in their educational views as in all aspects of their life. A cardinal tenet in the Amish faith is the Biblical injunction, "Be not conformed to this world," adherence to which, under their rigid interpretation, has doubtless contributed to their survival as a cultural group. Opposition to public secondary schools derives from their feeling that eventually this exposure of their children to that secular influence will erode the Amish way of life.
The first question posed is whether the facts support the finding of guilt of the defendant. Our compulsory school attendance statute is K.S.A. 1965 Supp. 72-4801 which provides in pertinent part:
*570 "That every parent, guardian or other person in the state of Kansas, having control over or charge of any child who has reached the age of seven years and is under the age of sixteen years, shall require such child to attend continuously a public school or a private, denominational or parochial school taught by a competent instructor, in which all instruction shall be given in the English language only, each school year, for such period as the public school of the district in which the child resides is in session.
"Any child who is physically or mentally incapacitated for the work of the common schools is exempt from the provisions of this act.... If such child is found capable of doing the work of the common or high schools, as the case may be, the child shall not be exempt from the provisions of this act, except as specifically provided herein. A child attending secondary schools in this state shall not be required to participate in any activity which is contrary to the religious teachings of such child, if a written statement signed by one of the parents or the guardian of such child is filed with the proper authorities of the school attended, requesting that the child not be required to participate in such activity and stating the reason for such request."
Noteworthy is the fact the act provides exemption only on the basis of physical or mental incapacity. K.S.A. 72-4802 complements the foregoing by prescribing an enforcement procedure, including service of truancy notice, and penalty for violation.
Defendant contends Sharon's enrollment in both the American school and the Harmony school satisfied the statute.
We have had compulsory school attendance laws in Kansas since 1874. Numerous amendments throughout the years reflect our transition from the frontier era. These changes have been in the number and nature of exemptions granted, the minimum and maximum ages of the children affected, and the length of time prescribed for school attendance. The last amendment and the one precipitating this lawsuit was the elimination in 1965 of the proviso that the act should not apply to any child who has completed the eighth grade. One of the earlier changes is particularly significant for our purposes here. Prior to 1903 our truancy act provided, as an acceptable excuse for not requiring one's children to attend a public school,
"... that such child or children are taught at home in such branches as are usually taught in the public schools, subject to the same examination as other pupils of the district or city in which the child resides...." (G.S. 1901, § 6420.)
The act was amended in 1903 by the elimination of the home study exemption. This court dealt with the effect of the amendment in State v. Will, 99 Kan. 167, 160 P. 1025, stating:
"In the later act, which obviously was for the purpose of improving the *571 truancy law and providing means for its enforcement through truancy officers, the significant language of the earlier act concerning the course of study imposed on home-taught pupils is left out. There must have been a reason for that. The act of 1903 (Laws 1903, ch. 423, Gen. Stat. 1909, § 7736 et seq.) enlarges as to the kind of schools which a child may attend to excuse him from public school attendance. They may be either `private, denominational or parochial,' but nothing is said as to the course of study in such schools. These schools must be taught `by a competent instructor, each school year, for such period as said school is in session.' May we not assume that the legislature knew what it was about when it provided in the earlier act that if the child were taught at home it must be in the common-school branches and that the child should be subject to examination as other district and city pupils might be. This provision would serve a useful and almost necessary purpose to prevent a mere pretense of home instruction to avoid the consequences of the truancy law. In the later act, it will be observed that home instruction is no longer an excuse for nonattendance in school, but the number and kind of schools to which he may be sent are enlarged. They may be either private, denominational or parochial." (p. 170.)
In State v. Lowry, 191 Kan. 701, 383 P.2d 962, this court applied the reasoning expressed in Will and refused to approve what amounted to scheduled home instruction as an excuse for nonattendance in schools prescribed in the truancy act.
Thus we see neither the American nor the Harmony school, being essentially home instruction systems, constitutes a private, denominational or parochial school within the meaning of our truancy act. Even if, as contended by defendant, the instruction given through them could be considered as instruction equivalent to that given in a public, private, denominational or parochial school, this would not be an excuse for nonattendance at the latter for the reason that the legislature has made no provision for such equivalent instruction as the basis for exemption. The only exemption now enumerated in our truancy law as being acceptable for not sending a child to one of the named schools being for physical or mental disability of the child, this is, in view of the legislative history of the statute, deemed exhaustive of such exemptions.
It should be noted moreover that our law requires that the child "attend continuously ... for such period as the public school of the district in which the child resides is in session." (Our emphasis.) K.S.A. 72-1106 provides:
"A school month shall consist of four (4) weeks of five (5) days each of six (6) hours per day on which pupils of a school are under direct supervision of its teacher or teachers while they are engaged together in educational activities...."
*572 From our examination of this statute we conclude it is one of general application and is to be considered in connection with the compulsory attendance law in determining the requisite period of attendance. Sharon did not attend any school wherein the school month consisted of four weeks of five days each of six hours per day during which pupils were under direct supervision of a teacher. Hence she did not continuously attend any school acceptable under our statute during the time the Partridge Rural High School was in session from August 25, 1965, through October 18, 1965. Therefore, her father, no matter how sincere or well intentioned, must be deemed guilty of violating the statute.
Defendant makes no general attack upon our compulsory school attendance law and indeed the validity of such laws has generally been recognized, for the natural rights of a parent to the custody and control of his child are subordinate to the police power of the state and may be restricted and regulated by municipal law providing minimum educational standards (79 C.J.S., Schools and School Districts, § 463 b.; 47 Am. Jur., Schools, § 156). The promotion of education is a legitimate function of the state, and in Kansas is one particularly imposed on the legislature by article 6, section 2 of the constitution (See, State, ex rel., v. Kemp, 124 Kan. 716, 261 P. 556). Defendant does challenge the application of the law to him by asserting it infringes upon his religious freedom guaranteed by our state and federal constitutions. The bill of rights of our state constitution, section 7, provides:
"The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship...."
The first amendment of the federal constitution provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."
and the fourteenth amendment thereof provides:
"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...."
There is no contention here that the statute is unconstitutional because Sharon is compelled by law to go only to a secondary public school. The statute does not so require and would be invalid if it did although it is recognized the state can require that all children *573 of proper age attend some school (Pierce v. Society of Sisters, 268 U.S. 510, 69 L.ed. 1070, 45 S. Ct. 571, 39 A.L.R. 468). Parents do have the right to educate their children elsewhere than in the public schools, provided the state's minimum educational requirements are met (Zorach v. Clauson, 303 N.Y. 161, 100 N.E.2d 463, affirmed in 343 U.S. 306, 96 L.ed. 954, 72 S. Ct. 679).
In accommodating between the competing right of the state to compel action in the public welfare and the right of the individual to his constitutional religious freedom the courts have distinguished between religious beliefs and religious practices. Failure to comply with reasonable requirements in the exercise of the police power for the general welfare has never been condoned in the name of religious freedom. As stated in Commonwealth v. Beiler, Appellant, 168 Pa. Super. 462, 79 A.2d 134, 137,
"Religious liberty includes the absolute right to believe but only a limited right to act." (p. 468.)
These general principles have been invoked many times. Examples of distinctions made between belief and practice are concisely set forth in Beiler, supra, as follows:
"A Mormon believed that plural marriages were divinely ordained but when he acted upon his belief he was convicted of polygamy. Reynolds v. U.S., 98 U.S. 145, 25 L. Ed. 244. A Jew held his Sabbath a holy day but when he refused to be judicially sworn on Saturday he was fined. Stansbury v. Marks, 2 Dallas 213. A Seventh Day Baptist believed he should rest from his labors on Saturday and follow the divine command, `six days shalt thou labor', but when he worked on Sunday he was convicted under the Act of 1794. Specht v. Com., 8 Pa. 312. A Mennonite maid believed she should wear the distinctive garb of her Church at all times, but she was not allowed to wear it in the school where she taught. Com. v. Herr, 39 Pa. Super. 454, affirmed 229 Pa. 132, 78 A. 68. Methodist students, who believed that `participation in war is a denial of their supreme allegiance to Jesus Christ', were nevertheless required to receive military training at a state university. Hamilton v. Regents, 293 U.S. 245, 55 S. Ct. 197. A Jehovah Witness sent her minor child `to preach the gospel' by selling religious pamphlets on the public highways and was convicted of a violation of a child labor law. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438. An imposing list of similar cases might easily be compiled. In total they apply the principle which Gibson forcibly expressed in his memorable dissent in Com. v. Lesher, 17 S. & R. 155, 160: `It is declared in the constitution [of 1790] ... that "no human authority can, in any case, control or interfere with the rights of conscience." But what are those rights? Simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which, is not prejudicial to the *574 public weal. But salus populi suprema lex, is a maxim of universal application; and where liberty of conscience would impinge on the paramount right of the public, it ought to be restrained.' (Gibson's italics.)" (pp. 468, 469.)
In Prince v. Massachusetts, 321 U.S. 158, 88 L.ed. 645, 64 S. Ct. 438, mentioned in Beiler above, the parent as a member of Jehovah's Witnesses claimed the right "to bring up the child in the way he should go [and] to teach him the tenets and practices of our faith." (p. 164.) In commenting on the parental claim the court said:
"But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333. And neither rights of religion nor right of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways [citing cases]." (p. 166.)
Applying the foregoing, we are unable to perceive from the record before us how religious freedom is abridged in this case. There is no infringement upon the right to worship or to believe insofar as either defendant or his daughter is concerned. Their freedoms to worship and to believe remain absolute and are not affected by our compulsory school attendance law. Defendant may instruct his daughter in religious beliefs as he desires. It can scarcely be doubted that defendant is sincere when he says his religious convictions are violated if his daughter receives a secular type of education found in the secondary public schools, but it is apparent he does not object to secular education per se since his daughter has attended the elementary public schools eight years. We are not called upon to attempt to prescribe any permissible degree of secularity in education beyond which religious freedom is infringed. The question of how long a child should attend school is not a religious one. No matter how sincere he may be the individual cannot be permitted upon religious grounds to be the judge of his duty to obey laws enacted in the public interest (Rice v. Commonwealth, 188 Va. 224, 49 S.E.2d 342, 3 A.L.R. 2d 1392). We think the particular law at issue here is valid as applied to defendant and his daughter and does not infringe upon constitutionally guaranteed religious freedom.
For other decisions in harmony with the position taken herein on this question, see the following: Com. ex rel. Sch. Dist. of PGH. v. Bey et ux., 166 Pa. Super. 136, 70 A.2d 693; Commonwealth v. Smoker, Appellant, 177 Pa. Super. 435, 110 A.2d 740; State ex rel. *575 Shoreline etc. v. Sup. Ct., 55 Wash.2d 177, 346 P.2d 999, cert. den., 363 U.S. 814, 4 L.ed.2d 1154, 80 S. Ct. 1248; Shapiro v. Dorin, 199 Misc. 643, 99 N.Y.S.2d 830, affirmed without opinion, 278 A.D. 705, 103 N.Y.S.2d 757, affirmed without opinion, 302 N.Y. 857, 858, 100 N.E.2d 48; In Re Currence, 42 Misc. 2d 418, 248 N.Y.S.2d 251; Cude v. State, 237 Ark. 927, 377 S.W.2d 816; Mosier v. Barren County Board of Health, 308 Ky. 829, 215 S.W.2d 967; Commonwealth v. Renfrew, 332 Mass. 492, 126 N.E.2d 109; State v. Hershberger, 103 Ohio App. 188, 144 N.E.2d 693.
The judgment is affirmed.
APPROVED BY THE COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3430674/ | The three appeals taken from the action of the Mills County supervisors to the district court by the respective plaintiffs and appellants, Chris Christensen, B.E. Lincoln, and Chicago, Burlington Quincy Railroad Company, a corporation, were consolidated for trial purposes. Each appeal presents the same issues and facts. Consequently, one opinion is sufficient to cover all three of them.
There are involved here, generally speaking, appellants' complaints: First, because the supervisors did not establish the drainage district petitioned for by them; and second, because the supervisors hired attorneys and engineers, and assessed the expenses therefor to the appellants. For a proper understanding of those issues, a preliminary statement of facts is essential.
Pony Creek in Mills County, flowing in a general southwesterly direction, empties into the Missouri River. This creek is an intermittent stream, and goes dry during certain portions of the year. Immediately to the east of the creek is a range of precipitous and abrupt hills, the drainage from which flows to the west, carrying silt and deposit on the level lands into the stream beyond. Keg Creek, in 1878, flowed northwesterly into Pony Creek. It being a live stream, it is said by appellants that the waters from Keg Creek caused a sufficient flow after they entered Pony Creek to wash the debris and silt from the channel. Then, in 1879, the waters of Keg Creek were diverted from the former course, and caused to flow into what is known as Watkins Ditch (an improvement in the Watkins Drainage District), thus entering Pony Creek near the Missouri River, and thereby depriving the last-named creek of the active waters which it previously received from the first-named creek several miles farther up the stream.
In 1902 or 1903, the Pony Creek Drainage District was established, and the main ditch therein extended from the northeast to the southwest, and finally emptied into Watkins Ditch. See Lincoln v. Moore, 196 Iowa 152, and Vinton v. Board ofSupervisors, 196 Iowa 329. Appellants became dissatisfied with *Page 1318
the drainage situation within the Pony Creek district, and on or about August 1, 1927, duly filed their petition for the establishment of a new drainage district. Among the improvements contemplated in the new ditch was a proposed Pony Creek
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 1319
lateral, to empty into an extension of Watkins Ditch. According to the petition, 10,939.4 acres of land are embraced within the proposed new district. Two drainage districts are already in existence. As before suggested, they are the Pony Creek and Watkins. A plat showing those ditches and the proposed new district with the suggested lateral appears herewith.
Practically all the land in the contemplated new district is already contained within the existing districts. But appellants insist that the existing improvements are not sufficient, because the water overflows from the Missouri River and fills up the Pony Creek ditch, thus causing silt to deposit over considerable portions of the ditch, so that the flood waters inundate the cultivated fields. To avoid this difficulty, appellants propose to carry the combined floods of Pony Creek and Watkins Ditch into the Missouri River, at a grade which will permit the scouring of the ditch's channel and prevent backwaters from the river.
Those of the appellees who are landowner objectors contested the sufficiency of the contemplated improvement on the basis of three complaints: First, that the carrying capacity is not sufficient; second, that the lateral extending along the hills will collect and hold all the silt and debris washed down during the floods, and thereby cause obstructions to the water; third, that the existing drainage districts are sufficient in their operations to take care of all ordinary floods; and fourth, that the improvement would not be conducive to the public health, benefit, utility, etc. After due consideration, the board of supervisors, by a resolution, rejected the project.
At the outset, the appellees maintain that the board disapproved the proposition because the 1. DRAINS: improvement was not "conducive to the public establish- health, benefit, and utility," and therefore ment and their action, being legislative in its nature, maintenance: is a finality, and cannot be inquired into by refusal to the courts. Replying to that proposition, establish: appellants insist that the board rejected the non- new district on the theory alone that the old permissible improvements were sufficient. Hence they say a appeal. judicial question is presented.
I. If the action of the board amounted to a finding only that the new district would not be "for the public benefit or *Page 1320
utility, or conducive to the public health, convenience, or welfare," the courts cannot interfere therewith. Such action on the part of the board is legislative in character, as distinguished from judicial. Denny v. Des Moines County, 143 Iowa 466; In re Nishnabotna R. Imp. Dist., 145 Iowa 130; Vinton v.Board of Supervisors (196 Iowa 329), supra. On the other hand, there may be involved in the establishment of a drainage district judicial, as well as legislative, findings. In re Nishnabotna R.Imp. Dist. (145 Iowa 130), supra; Hall v. Polk, 181 Iowa 828;Vinton v. Board of Supervisors (196 Iowa 329), supra; Thompson v.Board of Supervisors, 201 Iowa 1099. A discussion illustrative of the thought is the following, contained in In re Nishnabotna R.Imp. Dist., reading on pages 138 and 139:
"What the Denny case [143 Iowa 466] really decides is that there can be no appeal to the district court from an order of the board of supervisors finding that a proposed drainage district is not for the public benefit or utility, or conducive to the public health, convenience, or welfare, and a refusal to establish the district on that account. That is quite a different proposition from an appeal by landowners within a proposed district, whose land is to be taxed with the expense of the proposed improvement, from an order of the board establishing such a district, and ordering the improvement made at the expense of the landowners whose lands can only be taken in consideration of benefits conferred. In the one case, no one's property is taken, and no one's possession is disturbed. In the other, his property may be taken, his possession disturbed, and his lands appropriated, for public or semipublic purposes. True, in the latter case, the act of the board of supervisors is legislative, or quasi legislative, in character, but by statute it has some questions of fact to determine which may properly be made the subject of judicial review, before the property of persons interested may be taken or made subject to an assessment tax. * * *"
Thus it is certain that there may be involved in the establishment of the district questions which are not purely legislative. Upon this basis, appellants assert their right to have reviewed the board's action in the case at bar. To put the thought in another way, the appellants argue that the board's conclusion *Page 1321
in denying the establishment of the district was based upon the major premise that the old districts were sufficient. So it is insisted that the sufficiency of the existing improvements, rather than public convenience, welfare, etc., is in fact the subject-matter involved. Therefore, appellants say that the question presented is judicial, and not legislative. Here they rely upon Lincoln v. Moore (196 Iowa 152), supra, and Vinton v.Board of Supervisors (196 Iowa 329), supra. Those cases involved a resolution which made the basis of the board's finding dependent upon the existence of a sufficient improvement. When reciting its findings, the board, as shown in the Lincoln case, supra, used the sufficient existing drainage district as a major premise, and concluded therefrom that the new project was not conducive to public health, etc. Speaking upon that resolution, this court said, in Vinton v. Board of Supervisors, supra:
"As shown, the board in the instant case [Lincoln v. Moore andVinton v. Board of Supervisors] did not determine, as an abstract proposition, that drainage was not of public benefit."
Further, we stated, during the discussion in the Vinton case:
"As we said in the Lincoln case, it is not a fair interpretation of the order of the board of supervisors to say that they found that drainage was of no benefit. What they did hold was that, since there was one ditch in the district, it was unnecessary to have another, or relocate the ditch, and lose all the money which had been expended on the old ditch; and they refused the petition of appellants on that ground."
Returning now to the resolution of the board in the present controversy, it is discovered that the phraseology is quite different from that employed by the board in the Lincoln andVinton cases. Assuming, without deciding, that in the Vinton andLincoln cases the resolution of the board was so peculiar in its verbiage that a finding concerning the public health and benefit was not made, yet in the resolution before us the board found concerning the public health, etc., in such a manner that its conclusion in reference to the sufficiency of the present drainage system was not inconsistent therewith: that is to say, the findings appear to be uncontradictory in their nature. *Page 1322
Necessarily, then, the board's finding in respect to the public health and benefit was legislative, as distinguished from judicial, and therefore we cannot interfere therewith.
II. Nevertheless, appellants further insist that there is no basis for a finding here concerning the public health and benefit, for the reason that such conclusion was officially reached when the other two drainage districts 2. DRAINS: were established. Pursuing this thought, establish- appellants say that a finding in favor of public ment and benefit and health as it relates to particular maintenance: land is conclusive for such property during all "public time. Concerning this logic, serious benefit, difficulties can readily be suggested: First, utility, the present district does not, as we understand, health, entirely conform to the boundaries of the old, etc.:" although it does nearly so; and second, effect of fundamentally, jurisdiction is obtained in cases former of this kind by a legislative finding concerning finding. public benefit, health, etc. Without such conclusion, jurisdiction is lacking. Wherefore, the very basis for the establishment of the new district is that the lands embraced therein, including those portions already within the former district, need drainage, and that the proposed improvement under the drainage law will be conducive to public health and benefit. It is immaterial in this case whether previous similar findings were made on the subject for another drainage district entirely or partially embracing the same land.
A legislative finding, therefore, was essential here, and, performing their duty in that regard, the board refused to establish the ditch district proposed. Consequently, their action is final.
III. Contained within the district court's decree is a finding 3. DRAINS: that the board of supervisors legally employed establish- attorneys and an engineer in connection with the ment and appeal to the district court, and accordingly, maintenance: judgment was rendered against the appellants refusal to therefor in the aggregate sum of $3,730.90, establish: allocated as follows: Attorneys' fees, appeal: $3,130.90; engineer's charges, $600. Such legal illegal and engineering services were rendered solely employment for the purposes of the appeal from the of supervisors' action in refusing to establish the attorneys, district. etc.
Apparently some time after passing the resolution refusing such establishment, the board of supervisors, by another resolution, *Page 1323
did purpose to hire attorneys and an engineer. Their action in that regard, however, was no part of the original proceedings, which ended when said refusal was made. Relating to this subject are the following sections of the 1927 Code:
"7519. In all actions or appeals affecting the district, the board of supervisors shall be a proper party for the purpose of representing the district and all interested parties therein, other than the adversary parties, and the employment of counsel by the board shall be for the purpose of protecting the rights of the district and interested parties therein other than the adversary parties."
"7520. In all appeals or actions adversary to the district, the appellant or complaining party shall be entitled the plaintiff, and the board of supervisors and drainage district it represents, the defendants."
"7521. In all appeals or actions for or in behalf of the district, the board and the drainage district it represents may sue as the plaintiffs."
"7526. On appeal from the action of the board in establishing or refusing to establish said district, or in including land within the district, the court may enter such order or decree as may be equitable and just in the premises, and the clerk of said court shall certify the decree or order to the board of supervisors which shall proceed thereafter in said matter as if such order had been made by the board. The taxation of costs among the litigants shall be in the discretion of the court."
Manifestly, the board's duty in the premises is to act for the district; if there is no district, there is nothing for the board to represent. Not only is that true, but, when the board does act, its efforts in that regard must be in favor of, rather than against, the district. Obviously that is true, because the legislature desired the protection and maintenance of the district when once established by the board. Whatever was done by the board in the case at bar was against, rather than in favor of, the contemplated district. There being no district for the board to represent, its attempted employment of the attorneys and engineer for the purposes of the appeal was unauthorized, and therefore a nullity. Resultantly, such expense cannot be charged against or taxed to the appellants, and the action of the district *Page 1324
court in attempting to obligate them therefor is erroneous, and is hereby modified to that extent.
Wherefore, the judgment and decree of the district court, as thus modified, should be, and hereby is, affirmed. — Modifiedand affirmed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430675/ | This action was commenced by the plaintiffs alleging that they were the owners of the fee title to certain real estate in Scott County, Iowa, and the appellees herein, the lien claimants, were made parties defendant together with others. Other defendants, Charles P. Wolf and one Nehlsen, and possibly others, defaulted and are not parties to this appeal. The facts necessary to a disposition of the appeal are briefly as follows: *Page 314
The defendant, Wolf, owned the real estate in question and was an extensive builder, contractor, and promoter. He erected a dwelling house upon the real estate in question and made a contract selling the same to the defendant, Nehlsen. This contract, however, was later forfeited and canceled because of nonperformance and default on the part of the grantee. Wolf purchased supplies and material for the erection of the building from the plaintiff, Gordon-Van Tine Company, and also from the four mechanics' lien claimants — Ideal Heating Construction Company, Cement Products Company, Steinhaus Heating Company, and Iowa Furniture Carpet Company. Only one of the lien claimants filed a lien statement within the time prescribed by statute and there is a dispute as to whether that one did actually file its claim within the statutory period. After the statutory period for filing lien statements had expired, the Gordon-Van Tine Company took a conveyance of the real estate from the defendant, Wolf. The conveyance being in form a warranty deed, but the record shows without dispute that it was taken as collateral security for a claimed mechanic's lien of the Gordon-Van Tine Company. Later the Gordon-Van Tine Company conveyed the real estate to its co-plaintiff, Inland Securities Corporation. The officers of the Gordon-Van Tine Company and the Inland Securities Corporation were the same persons and the record discloses that the latter company was simply a subsidiary of the Gordon-Van Tine Company and that one Claussen was treasurer of both companies and the executive officer who handled the transactions here in question. Claussen as a witness frankly admitted that the purpose of the conveyance from the Gordon-Van Tine Company to the Inland Securities Corporation was, as he conceived it, to place the latter company in the position of being a good faith purchaser for value. The defense interposed by the four lien claimants was that the conveyance from Wolf, the original title holder, to the Gordon-Van Tine Company was not in good faith; was not for a valuable consideration and was with notice of the existence of the appellees mechanics' lien claims; and that the companion company, Inland Securities Corporation, took the conveyance from the Gordon-Van Tine Company with the same burdens in these respects as existed as against the Gordon-Van Tine Company.
The trial court found for the mechanics' lien claimants and specifically found that there was no consideration for the *Page 315
conveyance to the Gordon-Van Tine Company; that the conveyance was taken with notice of the existence of the mechanics' liens; and that the transaction was not in good faith. The court established the liens of the respective claimants and ordered a foreclosure of the same and directed that the real estate be sold to satisfy the said liens and directed that the proceeds of such sale be applied to the payment of the liens in a priority fixed by the decree. Personal judgment was entered against the defendant, Charles P. Wolf, for the various amounts found due on the mechanics' liens and judgment was also entered against him for the costs of the suit.
We have carefully read the record in this case and are satisfied that the record amply supports the finding and judgment of the learned trial court. However, it is not necessary that we go into a detailed statement and discussion of the record as the appeal must be disposed of on a ruling on a motion to dismiss the appeal, which we will now consider.
We have made the foregoing brief statement of the facts in the case to the end that the pertinency of the appellees' motion to dismiss the appeal may be the better understood. As is indicated in the foregoing statement of fact, personal judgments for the amount of these various claims together with costs was entered against the defendant, Charles P. Wolf, but the decree provided that the real estate involved should be sold and the proceeds applied to the payment of the various judgments and costs. Charles P. Wolf was not named either as appellant or appellee in this appeal and no notice of appeal was served upon him. The appellees' motion to dismiss the appeal is based upon such failure. The appellants resist the motion to dismiss on the ground that Wolf defaulted in the lower court, and that long before this suit was commenced he had conveyed the real estate involved to the appellant, Gordon-Van Tine Company, and was no longer a necessary party or interested either in the trial below or in this appeal. However, it will be noticed that personal judgments for the amounts of the various liens and costs were entered against Wolf and established as liens on the real estate involved and the real estate ordered sold for the purpose of paying the judgments. If the case should be reversed and the title quieted in the appellants as against those lien claimants then the lien claimants would still have their personal judgments against Wolf, while if the property is sold under the decree such *Page 316
judgements will be satisfied pro tanto. Wolf is certainly interested in this appeal and is a necessary party because his interest and position would be adversely affected by a reversal of the decree of the lower court.
It follows that the motion to dismiss the appeal must be and is sustained, and the appeal is hereby dismissed. — Dismissed.
RICHARDS, C.J., and KINTZINGER, MITCHELL, PARSONS, HAMILTON, STIGER, and SAGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430687/ | The note and mortgage in suit bear date November 10, 1921. Some of the items claimed by the defendants and *Page 719
allowed by the court antedate the note, in that they accrued in the year 1920. The other items claimed by the defendants accrued in the years 1921 and 1922.
The general nature of the items claimed by the defendants in their counterclaim is that they accrued for benefits received by the plaintiff out of the occupancy of the defendants' farm. These items, so far as they were allowed by the trial court, were proved by evidence without substantial contradiction by the plaintiff, his contention being principally concentrated upon the plea of settlement. The only settlement contended for by him was the execution of the note and mortgage sued on. He does not claim that any actual consideration was given to any of the items of defendants' counterclaim at the time of the execution of such note and mortgage, but he does claim that the execution of the note and mortgage in and of itself presumptively amounted to a full settlement, as a matter of law.
The defendant O.E. Miller is the sister of plaintiff, and the wife of her codefendant, J.M. Miller. The plaintiff is a bachelor. Prior to 1919, he had occupied his 80-acre farm, which adjoined the 80-acre farm of his sister, Mrs. Miller. The respective farms had been acquired by them by inheritance from their mother. The plaintiff, having sold his own farm, moved into the home of his sister, without any preliminary negotiations except a declaration on his part of his intention to build a house for them and to assist in paying their debts. This was at Christmas time in 1919. He brought upon the premises his 17 head of cattle, 5 horses, including a stallion, 150 chickens, and 2 turkeys. He remained there with his stock and poultry for three successive years, and literally "ruled the roost." The items claimed by the defendants are in the main predicated upon the use by the plaintiff of defendants' farm during the years 1920, 1921, and 1922. One modest item of $150 was allowed by the court for a vicious assault and battery with a club upon the defendant J.M. Miller.
The one contention presented for our consideration by the appellant is that the execution of the note and mortgage on November 10, 1921, operated as a bar upon the defendants to set up any prior claim or item, because all such prior claims *Page 720
were presumptively settled by the execution of the note and mortgage.
Granted that the execution of the note and mortgage was, on its face, presumptive evidence of a settlement of all prior mutual claims of the parties, yet it was presumptive only, and not conclusive. Granted that it put a burden upon the defendants to show that the note and mortgage did not represent a mutual settlement between the parties, and that the items claimed by them were in no manner included therein, such burden has been abundantly sustained. It is shown without dispute, and shown in the first instance by the plaintiff himself, that the note and mortgage were given for borrowed money, and that they represented the exact amount of indebtedness owed to the plaintiff for borrowed money, and nothing else. The very items that went into the note were proved by the plaintiff himself. The amount thereof was not arrived at as a balancing of mutual accounts. At the time of the execution thereof, no consideration was had of any liability of the plaintiff to the defendants. Such liability was at that time wholly unliquidated and necessarily uncertain in amount. Prior to such date, there had been conversation between the parties in an effort to agree upon the amount to be allowed by the plaintiff to the defendants. But no agreement had been reached, and none was thereafter reached. Except an item of $20 conceded by the defendants, the plaintiff did not testify that he had ever paid anything for the benefits received by him during the three years of his occupancy.
The three years of his stay were years of turmoil for the defendants, and of self-defense against vicious threats and final assault and battery. They were finally compelled to resort to a writ of injunction, in order to keep him from their premises.
From a careful examination of the record, we are satisfied with the finding of the trial court as being conservative and well sustained by the evidence.
The judgment is, accordingly, affirmed. — Affirmed.
FAVILLE, C.J., and ALBERT and MORLING, JJ., concur. *Page 721 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430596/ | In May 1920 William Schmitz died, his will was probated and his sons John and Tony were appointed executors. Clause III of the will devised a one-hundred-sixty-acre farm to his son Will and daughter Marie Hargarten, subject to a charge of $100 per acre. They accepted the devise, mortgaged the land for $14,000 and early in 1921 paid the net proceeds of the loan, $13,300, to the executors. This suit commenced by the administrator de bonis non upon demand of the Society of the Divine Word of Techny, Illinois (herein called "the Society"), seeks to establish and foreclose a lien for $2,700, the unpaid balance of the total charge of $16,000. Clause II of the will provided for a legacy of $5,000 to the Society, a Catholic *Page 582
educational institution, which is wholly unpaid. The will was before us for construction in In re Estate of Schmitz, 231 Iowa 1178,3 N.W.2d 512.
The amended answer alleged that in February 1935 the son Will acquired the share in the land of his sister, Marie Hargarten (who has subsequently died), and deeded the entire farm to his wife, Frances, in April 1942. Frances also alleged in her answer that a probate order made in February 1921, approving a report of the executors, which stated that they had collected the $16,000 from Will and Marie, constituted an adjudication against plaintiff herein; the heirs and legatees other than the Society had orally agreed to accept $13,300 in full settlement of Will's and Marie's obligation to pay $16,000; the administrator de bonis non is not a proper party plaintiff; laches and the statute of limitations.
Plaintiff's reply alleged that the probate order of February 1921 was ex parte and was procured by fraud of the executors and also of Will and Marie in that the report which the order approved falsely stated that the full $16,000 had been paid the executors when only $13,300 had been paid; the first knowledge that only $13,300 had been paid was in January 1941, when the executors filed their final report and resignation; Will and his wife, Frances, Marie Hargarten and her heirs have all been nonresidents of Iowa since the testator's death. Plaintiff prayed that the 1921 order be set aside.
The trial court held that the 1921 ex parte probate order is an adjudication which deprived it of jurisdiction to grant plaintiff relief and dismissed his petition.
The evidence shows that on February 18, 1921, the executors filed a report which stated they had collected from Will and Marie the $16,000 charged against the one hundred sixty acres and had received $5,000 from the heirs "charged with the payment thereof, and are holding said sum in trust until there shall be a student from the family or from the parish of Westphalia, Iowa, desirous of entering said aforesaid school at Techny, Illinois." The itemized statement of cash receipts, part of the report, listed $16,000 "received from Mari and Wille Schmitz, as per will," and deducted $5,000 from the balance on hand to be held by John and Tony (the executors) as *Page 583
trustees for the Society. The will provided that the legacy to the Society was to pay for a student from the family or from the parish of Westphalia, where testator lived, and made the $5,000 a charge against the residuary legacies of testator's five sons and his daughter, Marie. See In re Estate of Schmitz, supra,231 Iowa 1178, 3 N.W.2d 512.
No notice of the above report was given anyone. On the same day the report was filed there was also filed an order approving the report, purporting to have been signed three days earlier. The order recited, "the court being advised from said statements of said report, finds" that the executors have collected $16,000 from Marie and Will and also $5,000 for the Society and "hold the same, subject to the further order of this court." The order approves the report, confirms the title to the one hundred sixty acres in Marie and Will free from any claim of the estate, appoints John and Tony trustees of $4,750 (net amount of the $5,000 legacy to the Society, after the payment of the state inheritance tax) "for the use and benefit of any student, belonging to the family of deceased, or to the parish of Westphalia."
Upon the trial it was shown without dispute that the executors had never collected more than $13,300 of the $16,000 charged against the land devised to Will and Marie and had never collected from the residuary legatees any of the $5,000 legacy to the Society. The true facts were first made a matter of record in the executors' "Final Report and Resignation" filed January 6, 1941, which stated that the report filed February 18, 1921, was in error in these respects. Apparently one of the reasons — perhaps the principal one — why the 1921 report falsely stated that the full $16,000 had been paid was to deceive the company to which Will and Marie had applied for a loan on the land and to facilitate the making of the loan.
The final report also revealed that, while no part of the $5,000 for the Society had been collected from the residuary legatees liable therefor, the executors had paid out to them, under the residuary clause of the will, a total of $7,243 and an additional $1,000 to the daughter Anna, also a residuary legatee but whose legacy was not charged with payment of any portion *Page 584
of the $5,000. Of the $7,243, Marie was paid $2,200; Will, $885; John, $1,500; and Tony, $2,658.
In February 1941 the court appointed J.J. Jennings administrator de bonis non and continued until further order the hearing on the executors' petition for discharge. Soon thereafter Jennings commenced the action to construe the will to which we have referred and, as authorized by the court on November 21, 1942, this action was started on December 2, 1942.
[1] I. Appellee Frances Schmitz (Will's wife and present titleholder) contends that until the ex parte order of February 18, 1921, is set aside by an action in the pending probateproceeding the trial court is without jurisdiction in this action to grant the relief prayed for. Appellee apparently does not seriously contend that the order would not be set aside in probate upon such a record as we have here. She says in argument, "We readily admit that intermediate orders and ex parte orders in probate proceedings are subject to attack in the probate proceedings at all times before final settlement." She also concedes, "It was perfectly proper for the administrator de bonis non to bring an action in equity to enforce a lien against the real estate involved."
Appellee Frances Schmitz invokes the rule of priority of jurisdiction: the court which first takes cognizance of an action over which it has jurisdiction and power to afford complete relief has the right to dispose of the controversy without interference from another court of concurrent jurisdiction in which a similar action is later instituted between the same parties. See 21 C.J.S. 745, section 492; 14 Am. Jur. 435, section 243; Peff v. Doolittle, 235 Iowa 443, 15 N.W.2d 913. From this legal principle appellee argues that exclusive jurisdiction to set aside the 1921 order rests in the probate court. The rule which appellee urges is not applicable here and her argument is unsound.
Assuming, without deciding, that probate is the proper forum to set aside the 1921 order, there was no lack of jurisdiction in the trial court to grant such relief in this action in equity. There was no attempt here to deprive the court in which the probate proceeding is pending of jurisdiction. The *Page 585
contention that appellant was seeking in equity relief which should have been sought in probate does not go to the jurisdiction of the court nor does it justify the denial of relief in this action. The trial court had jurisdiction to grant any relief in this action which the evidence warranted. Doyle v. Dugan, 229 Iowa 724, 732, 295 N.W. 128, 132, and cases there cited; In re Will of Proestler, 227 Iowa 895, 901, 289 N.W. 436; In re Estate of Nish, 220 Iowa 45, 48, 261 N.W. 521, 100 A.L.R. 1516, and cases cited; Todd v. State Bk., 182 Iowa 276, 294, 295,165 N.W. 593, 3 A.L.R. 971; Reiger v. Turley, 151 Iowa 491, 497,131 N.W. 866.
The trial court is the identical court in which the probate proceeding is pending. Time and again we have pointed out that there is but one court of general jurisdiction in Iowa — the district court. Before it all proceedings come, whether law, equity, or probate. Forms of action differ but they are not controlling. Separate dockets are kept for convenience and efficiency, to expedite but not to clog the administration of justice. The remedy to which a party to an action is entitled may be awarded in utter disregard of its place on the calendar, unless objection thereto is raised in the manner prescribed by statute — a motion to transfer to the proper docket. If no such motion is made, any error in the kind of proceedings adopted is waived. See sections 10944, 10946, 10949, Code, 1939. Since no such motion was made here, appellant was entitled to have the 1921 order set aside in this action as prayed for by him, if he would have been entitled to such relief in probate upon the same showing.
Some of the many decisions which support the foregoing views, in addition to the cases above cited, are: Consolidated Constr. Co. v. Begunck, 233 Iowa 463, 472, 9 N.W.2d 390, 395, and cases there cited; In re Estate of Weidman, 209 Iowa 603, 606, 607,228 N.W. 571; Dorris v. Miller, 105 Iowa 564, 572, 574, 75 N.W. 482; First Nat. Bk. v. Green, 59 Iowa 171, 13 N.W. 75 (distinguishing Hutton v. Laws, 55 Iowa 710, 8 N.W. 642, upon which appellee relies); McName v. Malvin, 56 Iowa 362, 9 N.W. 297; Ashlock v. Sherman, 56 Iowa 311, 9 N.W. 242. *Page 586
[2] There can be little doubt that the 1921 order does not constitute a defense to this action and should be set aside. We have repeatedly held that an ex parte probate order such as this does not amount to an adjudication, is merely prima facie correct and subject to review at any time during the settlement of the estate and, under certain circumstances, thereafter. This is the effect of section 12049, Code, 1939. Here the prima facie showing of correctness of the order is conclusively rebutted. The order shows on its face that the statements in the report formed the basis for the order. In their final report and in oral testimony the executors themselves frankly admitted such statements were false. No court with knowledge of such falsity would have approved the report and found the facts as therein stated. No court with knowledge of the true facts should hesitate to set aside the order.
Among the numerous decisions which support our conclusion are: In re Estate of Robinson, 231 Iowa 1099, 1101, 3 N.W.2d 158,160, and cases there cited; In re Estate of McAllister, 191 Iowa 906,911-914, 183 N.W. 596; In re Estate of Douglas, 140 Iowa 603,605, 117 N.W. 982, and cases cited; In re Kimble v. Dailey,127 Iowa 665, 670, 103 N.W. 1009; Ashlock v. Sherman, supra,56 Iowa 311, 9 N.W. 242; Clark v. Cress, 20 Iowa 50, 54, 55.
[3] II. Another defense is that the legatees other than theSociety agreed to accept $13,300 in satisfaction of the charge of $16,000. Although the evidence in support of this contention is far from conclusive, we may assume there was such an agreement. Appellee argues that legatees may make settlement among themselves contrary to the terms of the will so long as the settlement does not prejudice rights of anyone not a party thereto. This proposition may be accepted without considering either its correctness or appellant's contention that here there was no consideration for any agreement to accept less than the full amount of the charge. Appellee contends the Society was not prejudiced because the executors at one time had sufficient money to pay the Society's legacy. It is said the Society's complaint is against the executors for their misapplication of funds with which the legacy might have been paid. The contention is without merit. *Page 587
The executors' final report filed January 6, 1941, the correctness of which is not questioned, shows total collections of $13,896 ($596 in addition to the $13,300), disbursements of $5,653 on claims and charges against the estate and, as before stated, distribution of the balance of $8,243 among the residuary legatees. Nothing was left for the Society. The fair inference is that the executors disbursed these sums soon after they received the $13,300. Also, as stated before, Marie Hargarten received $2,200 and Will $885 of this balance of $8,243.
Of course, the executors had no right to pay the residuary legatees without making provision for paying the Society. But Will and Marie, whose land was subject to the $16,000 charge and who became obligated to pay it by accepting the devise (see Anderson v. Anderson, 234 Iowa 277, 280, 12 N.W.2d 571, 573, and authorities there cited; annotation 116 A.L.R. 7, 13), participated in such misapplication of funds and benefited therefrom. These devisees were then in no position to blame the executors for the dissipation of these funds. There is no contention that appellee stands in any better position than her grantor husband. While the Society may have some claim against the executors for misapplication of funds, we know of no theory upon which these facts would constitute a defense to this action.
While it is admitted the Society was not a party to any agreement to accept $13,300 in satisfaction of the charge of $16,000, appellee contends it later acquired knowledge of it and ratified it, or at least acquiesced therein. It is sufficient to say the evidence does not support this contention.
[4] III. There is no merit in appellee's contention that the Society and not the administrator d.b.n. is the proper party to have brought this suit. In In re Estate of Schmitz, supra,231 Iowa 1178, 3 N.W.2d 512, we held the legacy to the Society was not a direct charge against the one hundred sixty acres. While it is true the Society stands to benefit from a recovery herein, the cause of action is one in favor of the estate which may properly be asserted by the administrator. Until debts and legacies are paid the administrator may sue to recover estate assets. Here there are costs and expenses of administration, as *Page 588
well as the $5,000 legacy, which are unpaid. The relation between appellant and the Society is similar to that of trustee and cestui. In support of our conclusion, see section 10968, Code, 1939; Grimmell v. Warner (Dillon, J.), 21 Iowa 11; Rhodes v. Stout, 26 Iowa 313; Ellyson v. Lord, 124 Iowa 125, 133,99 N.W. 582; Ryan v. Hutchinson, 161 Iowa 575, 584, 143 N.W. 433; Leach v. Farmers Sav. Bk., 205 Iowa 114, 116, 213 N.W. 414, 217 N.W. 437, 56 A.L.R. 801.
[5] IV. Because the appellees have been nonresidents of Iowa since the testator died, this action is not barred by the statute of limitations. Code section 11013 provides:
"The time during which a defendant is a nonresident of the state shall not be included in computing any of the periods of limitation above described."
The fact that proceedings in rem might have been instituted against property of the appellees in this state does not render the saving clause found in 11013 inapplicable. We have so held several times and our holdings accord with the great weight of authority. Had the legislature intended that section 11013 would not be operative where a defendant has property in this state or where a proceeding in rem might be brought, we must assume the statute would have so provided. Section 11013 contains no such exception. It is a saving clause based on nonresidence of the defendant, and not on absence of property in this state.
Here the relation between the devisees of the one hundred sixty acres and appellant is somewhat analogous to that between maker and holder of a note and mortgage. The law implied an obligation upon the devisees, who accepted the devise, to pay the amount of the charge. Anderson v. Anderson, supra, 234 Iowa 277, 281, 284,12 N.W.2d 571, 574, 575, and authorities there cited. Clearly, due to their nonresidence, the statute has not run against such personal indebtedness. So long as such indebtedness remains as a binding obligation the equitable charge or lien, which is an incident to the debt, is not barred but may be enforced.
Our holding is supported by 34 Am. Jur. 179, 180, section 223; 37 C.J. 992-994, sections 381, 384, 385; annotations 119 A.L.R. 331, 333-335; Clinton County v. Cox, 37 Iowa 570; *Page 589
Heaton v. Fryberger, 38 Iowa 185, 196, 197; Brown v. Rockhold,49 Iowa 282; Robertson v. Stuhlmiller, 93 Iowa 326, 328,61 N.W. 986; Leeds Lbr. Co. v. Haworth, 98 Iowa 463, 67 N.W. 383, 60 Am. St. Rep. 199; Jenks v. Shaw, 99 Iowa 604, 68 N.W. 900, 61 Am. St. Rep. 256. See, also, Burns v. Burns, 233 Iowa 1092,11 N.W.2d 461, 150 A.L.R. 306.
Since this is not an action to foreclose a real-estate mortgage, bond for deed, trust deed, or contract for the sale of real estate, it is not barred by the special limitation found in Code section 11028. It is perhaps well to note that the saving clause contained in section 11013 does not apply to an action which falls within the terms of 11028. Newgirg v. Black, 174 Iowa 636,645, 156 N.W. 708. See, also, Newton v. Knox, 234 Iowa 1095,1106, 13 N.W.2d 795, 800; Ramiller v. Ramiller, 236 Iowa 323,18 N.W.2d 622.
[6] V. We are not inclined to sustain the defense of laches. It is said to be the rule that a suit to foreclose a mortgage cannot be defended on the ground of laches where the cause of action on the secured demand is not barred by the statute of limitations. 37 Am. Jur. 64, section 580; 19 Am. Jur. 342, 343, section 497, note 15; Cross v. Allen, 141 U.S. 528, 537, 12 S. Ct. 67,35 L. Ed. 843, 849. See, also, Carter v. Cohen Bros., I. M. Co.,181 Iowa 588, 593, 164 N.W. 1040. But we think the defense is not established here, even if we are to assume it may be invoked in a case of this kind.
Mere delay in the assertion of a claim does not ordinarily amount to laches. There must be an omission to assert a right which, in conjunction with the lapse of time, has prejudiced or damaged the adverse party. Lutton v. Steng, 208 Iowa 1379, 1382,227 N.W. 414, and cases there cited; 30 C.J.S. 520, 521, section 112; 19 Am. Jur. 352, 353, sections 508, 509. See, also, Copeland v. Voge, 237 Iowa 102, 109 et seq., 20 N.W.2d 2, 6. The doctrine will be applied only where it would be inequitable to permit recovery or it is clearly demanded in the interests of justice. Keller v. Harrison, 151 Iowa 320, 324, 128 N.W. 851, 131 N.W. 53, Ann. Cas. 1913A, 300; Luke v. Koenen, 120 Iowa 103, 106,94 N.W. 278; 30 C.J.S. 528, 529, section 115; 19 Am. Jur. 352, section 508. *Page 590
It is not contended the administrator d.b.n. was guilty of laches. He was appointed in February 1941. This action was commenced December 2, 1942. In the meantime he maintained the will-construction suit, which was not concluded till June 1942. It is contended, however, the Society was guilty of laches and appellant is charged therewith.
The Society, an Illinois institution, first learned of its legacy about February 1, 1932, in a letter from the state treasurer. After some correspondence with the clerk of the district court of Shelby county, about March 1st it referred the matter to Mr. Frantzen, an attorney in Dubuque. Frantzen wrote the executors, who apparently made no reply. He then placed the matter with an attorney in Shelby county, who investigated the matter and on April 1, 1933, reported that the executors had not set aside the funds with which to pay the legacy and were insolvent. Thereafter an attempt was made to get settlement of the estate.
In May 1939 Marie Hargarten's surviving husband filed a petition for removal of the executors, upon which a citation was issued. In November 1940 the Society, through another attorney, caused the executors to be examined under oath and learned they had collected from Will and Marie only $13,300, had not collected from the residuary legatees the $5,000 for the Society, and had disbursed all money they had received. In the same month the Society also applied for removal of the executors. On January 6, 1941, the executors filed their final report and resignation, as before stated. In the following month appellant was appointed administrator d.b.n. In the will-construction suit which followed, the Society was an active participant.
The Society also litigated the question of the liability of the sureties on a bond furnished in 1921 by the executors as trustees for the $5,000 fund. (The Society had no notice and knew nothing of this bond nor of any attempted trusteeship at least until 1932.) In May 1941, following a trial, the court released said sureties because no funds came into the hands of the executors as trustees. In November 1942, the Society demanded of the administrator d.b.n. that he commence this suit.
As before stated, the Society's legacy was for the purpose *Page 591
of paying for a student in its educational institution from the testator's family or the parish of Westphalia. There was no such student till 1936.
Appellees place much reliance on the fact that in February 1935 Will purchased the share of his sister in the one hundred sixty acres (the purchase price was $105 per acre) and erected a new house, barn, and some smaller buildings valued at $9,000. Just when these buildings were built is not shown definitely but it seems to have been between 1932 and 1935, before Will bought out his sister. It does not appear that the Society knew of the erection of these buildings nor of Will's purchase from Marie. His deed was not filed for record till October 1939. Although Will was a witness, there is no testimony that he bought out his sister or improved the land under the belief that it was relieved from the $16,000 charge. See 19 Am. Jur. 355, 356, section 512; 30 C.J.S. 540, 541, section 118. Will, of course knew that $2,700 of the charge had not been paid.
There is no evidence that any delay by the Society or the executors misled or deceived either of the devisees of the one hundred sixty acres. See Carnes v. Mitchell, 82 Iowa 601, 608,48 N.W. 941. Presumably the money spent on improvements correspondingly enhanced the value of the property. There is no showing that the rights of any innocent third party have intervened nor that evidence material to the defense has been lost or obscured by any delay in bringing this suit. See Williams v. Allison, 33 Iowa 278, 286; 19 Am. Jur. 353, 354, 355, sections 509, 511, 30 C.J.S. 540, 542, sections 118, 119.
Precedents are of limited value on the question of laches, since each case must be determined according to the particular facts shown. Copeland v. Voge, supra, 237 Iowa 102, 111,20 N.W.2d 2, 6, 7; 30 C.J.S. 528, section 115. However, our conclusion finds support in the authorities cited above in this division and also in Dice v. Brown, 98 Iowa 297, 300-302, 67 N.W. 253; Applegate v. Applegate, 107 Iowa 312, 319, 320, 78 N.W. 34. In most of the cases cited by appellees on this issue there was an attempt to recover the ownership of land, not merely to enforce a lien, and the elements of estoppel or adverse possession were clearly shown. *Page 592
[7] VI. Appellant claims interest on the $2,700 from the testator's death. Ordinarily a testamentary charge against land, where the devise was accepted, would draw interest from the time payment was due. Such time here was about March 1, 1921, when the devisees (through tenants) took possession of the land. Such possession would ordinarily be an added reason for allowance of interest. See, as bearing on this question, Security Sav. Bk. v. Williams, 188 Iowa 904, 913-915, 176 N.W. 971; Dee v. Collins,235 Iowa 22, 26, 15 N.W.2d 883, 886. However, in view of the delay of the personal representatives in asserting the claim here made, their failure (so far as appears) to make prior demand upon the devisees or appellees for the $2,700 and under all the circumstances shown, we feel that interest at five per cent (see Code section 9404) should be allowed only from the commencement of this suit. In support of this conclusion see: 33 C.J. 233, 234, section 123, 47 C.J.S. 57, section 46; 33 C.J. 239, section 140, 47 C.J.S. 61, 62, section 50; 30 Am. Jur. 10, 11, section 7; Selzer v. Selzer, 146 Kan. 273, 69 P.2d 708, 116 A.L.R. 1, 6, 7, and annotation 7, 62, 65; Dunham v. Deraismes, 166 N.Y. 607,59 N.E. 903; Gilbert v. Taylor, 148 N.Y. 298, 42 N.E. 713, 715; Bushing v. Iowa Ry. L. Co., 208 Iowa 1010, 1014, 226 N.W. 719; Stevens v. Pels, 191 Iowa 176, 194, 195, 175 N.W. 303.
We think appellant is entitled to a judgment in rem against the one hundred sixty acres for the unpaid balance of the $16,000 with interest from the commencement of this suit, and to the establishment and enforcement of a lien therefor. For the entry of a decree accordingly, this cause is — Reversed and remanded.
BLISS, C.J., and OLIVER, MILLER, HALE, WENNERSTRUM, and SMITH, JJ., concur.
MANTZ, J., takes no part.
MULRONEY, J., dissents from Division VI. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430667/ | On June 13, 1940, the will of Edna Myrtle Grange, dated August 5, 1939, was filed in the office of the clerk of the district court of Clay county. The will was contested by Vera G. James, the sister of decedent and the only living member of her family, on the ground that testatrix was mentally incompetent. There was trial to a jury and verdict for the contestant. Proponents filed motion for new trial, exceptions to instructions, *Page 965
and motion for judgment notwithstanding the verdict, all of which were overruled.
Edna Myrtle Grange was born near Ireton, Iowa, in the year 1890. She was a premature child and was not healthy throughout her life. She was difficult, irritable, nervous, and jealous. The record shows that there were three children in the family, one of whom, William, died when a youth. Edna was the oldest. Her parents were kind and devoted, realized that she was unusual, and apparently gave her special care, including three trips and winters in California. After moving to a farm near Sioux Rapids in 1898, Edna attended school, was graduated from high school, and attended for a time the teachers college at Cedar Falls. After this she taught school, but in 1922 she suffered a breakdown and was taken to her home and did not teach any more. She was attended by various doctors, and in June 1940, her condition became so serious that she was taken to St. Bernard's Hospital at Council Bluffs, and there committed suicide on June 10, 1940.
Her will was offered for probate and a contest instituted. A motion for directed verdict on the ground of insufficiency of the evidence was made by proponents, and was overruled, as were also motions for new trial and for judgment notwithstanding verdict. The question in this case is whether or not the evidence produced by contestant presented a jury question. It is therefore necessary that we review to some extent the contestant's evidence. There was a large number of witnesses whose testimony was offered by the contestant, and a larger list who testified for the proponents. As is usual, their testimony disagrees, and in the opinions expressed there was a decided difference.
[1] Three medical witnesses testified for the contestant. Dr. Ash, medical director at St. Bernard's Hospital, and a witness of large experience in mental and nervous diseases, could testify only as to his observation and the medical history of the patient, and, from observation, only as to the period from June 3, 1940, until the day of her death. He testified that she suffered from manic-depressive psychosis, characterized by agitation, talkativeness, excitement, flighty ideas, marked delusions principally persecutory in nature, and lack of insight into her condition. He testified generally as to the type of mental illness with which she *Page 966
was afflicted and gave his final conclusion that she was of unsound mind at the time she was at St. Bernard's Hospital and that she had suffered from manic-depressive psychosis since 1923.
Dr. Dean H. King, of Spencer, who, besides his general practice, had had some experience — about three months — in a hospital for mental diseases in Rhode Island, first treated Edna Grange in March 1936, for ailments of a physical nature. She was afflicted with nervous troubles and menstrual difficulties, besides other complaints. The doctor prescribed a nerve sedative and a diet. There were frequent treatments for her nervous condition and frequent complaints by her as to such condition. The treatments continued through the summer and afterward, and in February of 1937, and throughout that year, and afterward in 1938. In the late fall of 1938 she asked for a statement as to her sanity, being at the time very nervous and excitable. The doctor complied with her request and gave her a statement that, in his opinion, she could conduct her own business affairs. His next occasion for observation and treatment was in 1939. The last time was in 1940, shortly before she was removed to the Council Bluffs hospital, when he found the patient in a very excited and nervous condition, with disjointed and unconnected ideas. He testified that from her first visit she appeared neurotic, and during the course of his acquaintance and treatment she talked louder and louder, and became manic, and developed a raving state when she would become extremely excited, sobbing and crying. The condition was progressive. The rest of the time she would be the opposite of this depressed condition, and would be more calm and cheerful; but on each successive time she seemed to be more psychoneurotic until the last two times he saw her. A good many of her complaints were due to her mental condition; a good many were imaginary. This doctor also stated that the disease was manic-depressive psychosis, a form of insanity. The progress of the disease in this case was quite rapid, and in reality there were no lucid intervals; she had arrived at the chronic stage of the disease previous to the time he first saw her, and it became more acute. In his opinion, the doctor stated, she was insane in 1937, and up to November 2, 1938, she would not be competent to know the extent of her property, appreciate the demands of those who might be entitled to her bounty, and to *Page 967
know the disposition that she would want to make of her property. His office memoranda as to her condition were introduced in evidence, but there was no mention made therein as to her mental condition, except for one item made a considerable time after her last visit, in which he stated that he had advised a brother-in-law as to the patient's mental condition. Dr. King testified as to her excitable condition during his observation, and explained, as to the statement he gave her, that she did not tell him why she wanted a certificate.
Dr. Swallum, of Spencer — formerly of Sioux Rapids — was a witness. He qualified as to his experience and stated that he had known Edna Grange since 1933. He testified as to her extreme nervous state and her imagining that she had done her mother a great wrong before her mother died, and that she worried about the wrong she had committed, and imagined that she had caused her mother's death, or helped cause it. She spoke of the "unpardonable sin." The fact is, as shown by various witnesses, that her relations with her mother were extremely affectionate, although at times she had complained of her father as not giving her the same chances as her sister. Dr. Swallum testified that she was extremely excited at all times, and, by the time she would get through explaining her symptoms, she would be almost screaming; she was extremely hysterical. He also gave her sedatives and prescribed a diet, recommended a treatment to induce sleep, and advised that she change her environment. During the first treatment the doctor diagnosed her trouble as neurasthenia, an extremely excitable mental state and also an imaginative state; her only trouble was mental. Later, after a couple of years, when she was again brought to him for treatment, he found she was extremely excited, had not slept for days, imagined all sorts of things, was afraid someone was trying to steal things from her — such as stock and personal belongings, and articles belonging to her father. She complained of her treatment by her family, that her father had prevented her from having company, and that her sister did not treat her right. Her mother had died at that time but her father was always considered as thoughtful and very much concerned about her well-being. These visits to Dr. Swallum's office continued for several years. She informed him on different occasions that she was going to commit suicide. *Page 968
This was during the years 1926, 1927, and 1928, and at that time she was very hysterical. After 1923 her mental symptoms were more severe. In 1925 the doctor suggested a companion for Edna, and the family then went to Sioux City and got a little girl — Maxine — from the childrens home. After this Edna would become excited over something that might happen to this child. These conditions continued until the death of her father, in 1933. In June 1939, she visited the doctor again at his office in Spencer, and consulted with him about Maxine's desire to become a nurse. These visits continued throughout the summer and until October, and from June to October the doctor saw her two or three times a week. She was undecided about the nursing school the girl should attend and had difficulty making up her mind. She seemed, on these visits, to be suspicious of Maxine and said that she could not be trusted. At these times she was agitated, excited, and nervous. Her mental condition at that time was just the same as previously. He testified that he would not say she was of sound mind at any time. He also said she was suffering from manic-depressive psychosis and that she had been during all the years he had testified about; that it had reached the chronic stage, and that in that stage the patient can be more or less violent, he has hallucinations and delusions and feels that someone is trying to do him harm. Edna was not of sound mind during the summer of 1939. He stated that he signed a certificate as to her mentality, that he did not want to disagree or argue with the patient and she asked for a statement showing that she could carry on her own affairs. She was at the time very hysterical, and he gave the statement for therapeutic reasons; it would be the worst thing he could do to tell a person suffering from a mental disorder that he had a mental disorder. The doctor did not believe Edna had any lucid intervals during the summer of 1939, and said that at no time during that summer could she have been competent to know and understand the extent of her property and the persons entitled to her bounty. This witness, on cross-examination, testified that he had informed the patient's father that she was insane, and that the family objected to any institutional treatment. In referring to financial matters, Edna was suspicious, and dissatisfied with her brother-in-law, and there was evidence that, in the work which he did *Page 969
for her as a lawyer and as manager of the farm belonging to the sisters, Edna and Vera, he was not overpaid, nor did he take advantage of her. The witness stated that she could make ordinary purchases from stores, for her needs, and that she could carry on her business affairs of that nature without being cheated. She was dissatisfied and suspicious.
The testimony of various neighbors and friends was given, but it is not possible within the limits of this opinion to give more than a summary of some of the main points of their testimony. Hannah G. Larson testified to many matters in connection with her frequent visits — such as her having been compelled to work too hard, wear poor shoes that her parents had given her, who, as a matter of fact, were quite indulgent. She was jealous and envious of her sister Vera; always melancholy or depressed; she cried a great deal, moaned, and screamed. She was a careless driver of a car, and threatened suicide. She complained that her father and mother had not done justice to her. The last time Edna came to see the witness it was for the purpose of paying a bill; she opened her pocketbook, but did not get the money out, and did not pay her. This witness was a beneficiary under the will.
Olga Ness, also a legatee under the will, testified as to an extended acquaintance with the testatrix. She testified that decedent was very unusual, depressed and unhappy, imagined she had cancer, and was always complaining of some physical disability. She was inclined to scold Maxine; she was afraid she was being cheated; she was inclined to cry, and was hysterical. She worried greatly about the purchase of certain articles, and the witness never knew her to be satisfied when she had made up her mind. Her conversation was "always mixed up, hard to get any connection and when she got real excited it was something that was mixed up." The conversation was sometimes about Maxine, and sometimes about her parents, and she had a bitter feeling toward her father for some reason. She blamed her father for the home, which she did not like, and she wished that her folks had let her die. She said her folks had favored her deceased brother; told that she had a rope in the attic and "one of these days they might find her hanging." This was in October 1939. She never was cheerful and happy. There were times *Page 970
when she would not complain so much, but the witness did not know when she was ever so that she did not complain about something, usually repetition, about the same thing. There was much testimony to the same effect, but the substance of this witness's testimony is as given. The witness testified that, in her opinion, Edna was not of normal and sound mind, and she did not believe that she was normal.
To much the same effect the witness Gladys Cuthbert testified. She had an acquaintance extending back 32 years, and knew the family quite intimately. Edna was 18 when she first made her acquaintance. Delos Grange was an indulgent father and the mother was very thoughtful of her children; but, "Edna was the most peculiar person I ever knew. Was never happy and never quite content with her lot in life. That was through all the time I knew her." These peculiarities increased as the years went by, and she grew more despondent and more jealous. After her nervous breakdown, in 1923, she said many times she "had a notion to end it all." She always criticized her father for what he did for her, said that he was always better to Vera than to her. The witness said that she never noticed that the father preferred one to the other. After his death Edna cursed the name of her father. She repulsed efforts of Vera to be kind to her, and was very jealous of her. This witness testified as to the deceased's imagining ill health, that she thought she had a cancer, and that people were "talking behind her back." She stated that she hated her sister's children.
The child, Maxine, who was taken from the home and afterward lived with the Grange family, was a witness, and testified fully as to her life with Edna, which testimony was to much the same effect as that of other lay witnesses — that the deceased had crying spells; would go upstairs and eat alone; would stamp her feet and wring her hands; the crying spells would last all day and at night, and her father and sister would try to comfort her. She talked a great deal about her brother, William, who had died in 1910, that she had not been with him when he died and her folks had schemed so she could not get there, and that she should have been there when he died in a Sioux City hospital. This talk was continuous throughout the years. She said that William had been treated better than she was, and that she had not had the *Page 971
privileges that Vera had, but the witness said that there was no actual difference in the treatment of the girls, that the father was kind to both and to the witness herself. Edna's work around the house was ineffective, she was in the habit of starting at one thing and going on to another; and she complained about working so hard, although the others all worked and did not let her do anything by herself. She imagined people were talking about her. She said that her father had teased her boy friends when they came, and she blamed him because she did not have any boy friends and blamed her mother because she had talked against marriage. She complained of the food, which was good. She was not affectionate toward the witness and the witness never tried to be affectionate with her. During her crying spells she would throw herself on the floor and wish that she could kill herself. In 1939, going to church, she acted wildly. The witness complained that at the time she was afraid to ride with her and knew she was "awfully mad." "On the highway she started driving fast and said she wanted to kill us both." She never remembered if she had locked any doors. She was embittered against her sister and brother-in-law. After Maxine went to school Edna wrote very depressing letters to her, and objected to things that Maxine did. The witness described a violent scene in August 1939, when Edna flew into what the witness described as a "tantrum" and was very abusive. During the last year the decedent would get up during the night and go all over the house, into the attic, and outside, but would not stay long. Sometimes she never would come back to bed. The witness would waken and Edna would be downstairs. She had money all over the place, under the bed, under the mattress, under the pillow, down radiators, in drawers, and sewed in her clothes. She would forget where it was, and they would hunt all over the house for her pocketbook, which was usually found. She was bitter on the occasion of the death of her sister's baby, and said her sister and brother-in-law were being paid back for what they had done to her. Edna's spells became more marked as the years went by, and she did not talk as an ordinary, normal person. The witness stated that Edna taught a Sunday-school class in 1939, substituted, but was too nervous for the children. She described following her to prevent her getting poison, and taking it out of her hand. Her crying spells during 1939 often lasted a week. *Page 972
Another witness, Bernice Knudson, also testified at length to much the same effect, and as to noticing Edna's forgetfulness and inability to remember. She stated that she knew Edna was of unsound mind. Seber Knudson also testified as to the family relations, the kindness of Delos Grange, and as to his own observation of an experience with Edna. He also testified as to her excitability; her crying, raving, talking loud, and screaming; complaints about her father and the treatment she had received, and how hard she had to work; and the reckless manner in which she drove. Her condition gradually got worse, and, in his opinion, Edna was of unsound mind all the time they lived on their place, a period of three years. F.J. O'Brien, president of the Clay County Bank, testified as to the decedent's nervous, irritable, and excitable condition, and his observation of her at the bank, of which she was a customer. He stated that Edna was not of sound mind. There was also testimony by Bessie West, a clerk in a store, who frequently waited on Edna, as to her indecision and vacillating manner in transacting business at the store, and the apparent hostility that she showed to her sister. This witness testified as to statements made by Edna in which she said that she had met her sister out in the street. The witness knew, however, that that was impossible, as Vera was at the time in the hospital with one of her children. At another time she complained of Vera's passing her on the street and not speaking to her, but the witness knew that that was not true, because she had just talked to Vera on the telephone. She stated that, from the facts she testified to, Edna was of unsound mind.
Vera James also testified, mostly as to the family history, and the kindness of the parents.
There were other witnesses. Evelyn Stillman, a teacher, repeated much of what has already been mentioned in the testimony of other witnesses, and testified as to Edna's general suspicion of all with whom she was intimately associated. The witness mentioned the marked change in her appearance in August 1938, that her complexion was pasty, and her lips swollen, and she seemed very much excited. Her letters reflected her nervous and irritable condition. Correspondence continued for some years between the witness and Edna. The witness was of the opinion that Edna had not what might be called a normal mind *Page 973
after 1922, and that her mental condition grew gradually worse as the years progressed. In 1937 the witness noticed that she was unable to reason with Edna on anything "for a single minute."
A plumber, I. Remillard, who had done some work on the furnace in the house, related that, contrary to instructions, Edna would build fires in the range, although she had been informed that the coil would be spoiled, and this was repeated notwithstanding his instructions and protests; she did not remember or attend to such instructions. He also mentioned her crying spells that she seemed to have, and the imagined different treatment that she and her sister received from their parents. From his observation, she was of unsound mind during recent years. Remillard's son Miles testified to the occurrence at the time of fixing the cookstove, and in substance his testimony was about the same as his father's. He also gave as his opinion that Edna was of unsound mind.
There was other evidence along this line given by the witnesses. We have not attempted to set out the testimony in full, but have undertaken only to show the main points of testimony that the jury were entitled to consider. Witnesses testified to other matters, such as Edna's thinking that the sheriff would come after her, her complaint that her sister drove an automobile to school while she had to drive a horse and buggy, the change in her attitude from her former apparent affection toward her sister's children, and other matters of like character.
There was, of course, a large number of witnesses for proponents — some 26 in number. Some of these were neighbors; others had had less opportunity to observe Edna. Some belonged to organizations with, or were related to, people who had an interest in the will as legatees. There is no reason to question the convictions or honesty of these witnesses. It is not necessary to go into the testimony for the proponents, since our only inquiry is as to whether or not there was sufficient evidence of mental unsoundness to make this a jury question. Naturally, there is a conflict in the testimony of some of the witnesses for the proponents and those for the contestant in regard to some of the matters testified to. Some who had opportunity to observe Edna gave their opinions that she was mentally sound, but in several *Page 974
instances there were not sufficient facts to justify an opinion as to sanity or insanity. However, whether or not the testimony of the proponents' witnesses was of great weight, yet it was for the jury to decide, in the event of a conflict, as to the weight and value of all the testimony. The only question that we have to determine is, Was the evidence, as we have here outlined, such as to authorize submission to the jury and for the jury to find that the decedent did not intelligently comprehend the estate she possessed, the natural objects of her bounty, and did not have the intelligence to exercise discretion and judgment in the disposition of her property? In our opinion it was sufficient. Many matters are argued by the proponents. We think it unnecessary to go into any extended analysis of the cases referred to by the parties. Nor do we disagree to any great extent with the abstract principles of law suggested. In proponents' brief and argument the exception to the court's action consisted in ascribing error to its refusal to direct a verdict on account of lack of competent evidence to support the burden of proof. The rule in a case of this kind is that the contestant would be entitled to have the evidence considered in the light most favorable to her. Nor can we pass on the facts in this case independently of the verdict of the jury. It is not the judgment of this court which shall determine the result, but that of the jury. It is likely that in this case, as in most cases of this kind, there might be a difference of opinion as to the conclusions that might be drawn from the evidence, but in such case, or where the evidence conflicts, the question is solely for the jury, provided, of course, there is enough testimony to warrant such finding. These principles are so well known and the rules pertaining thereto are so common that it is not necessary to review the various cases cited by proponents and contestant.
Many cases appear in our reports. Seldom, in any two cases, are the facts so exactly the same that the decision in one may determine the other. It would unduly extend this opinion and be of no great value, to undertake to summarize the evidence in the various cases or to distinguish the facts. In some of the cases cited the decision of this court was upon a trial de novo, equitable issues being presented. Such equitable cases, of course, cannot be considered as ruling in a case such as this where the action is at law. *Page 975
[2] Proponents cite various cases as sustaining their first argument, that the burden of proving lack of testamentary capacity is on the contestant and the question should not be submitted to the jury unless there is evidence which ought reasonably to satisfy the jury of the testatrix's mental incapacity; and they argue further that the scintilla rule has long since been abandoned in this state. Without referring further to the authorities cited, it may be conceded that this is the correct rule. Nor is there any question about their second contention, that some deterioration in physical or mental powers, or peevishness, childishness, or eccentricities, are not alone sufficient to carry to the jury the question of mental unsoundness on the part of the testatrix; citing In re Estate of Shields, 198 Iowa 686, 200 N.W. 219. Nor do we doubt that ability to transact some business is not essential to testamentary capacity.
[3] Suicide does not raise a presumption of insanity at the time of the execution of the will but is a matter to be considered in connection with all the other testimony in the case. 68 C.J. 473, section 80. Proponents also argue, as one division of their second assignment of error, that the question to be determined is the mental condition of the testatrix at the very time of the making of the will. Neither can there be any question about this legal proposition. We think an examination of the testimony indicates, both in the expert testimony and that of the lay witnesses, that there was evidence showing that this condition existed at the very time of the execution of the will. It would be unreasonable to assume that the requirement of the law was that there should be eyewitnesses or that the witnesses who testified as to the mental condition of testatrix should have been present at the very time the will was signed. But this, like nearly all questions of fact, may also be shown, and we think is shown, by circumstantial evidence, as well as by the direct evidence that appears in the record as to testatrix's continuing mental condition.
Proponents also argue that the fact that a person is of unsound mind in the medical sense of the term is not proof of a lack of testamentary capacity. We think that there was evidence for the jury's consideration to warrant submitting to them the question of unsoundness of mind, whether of medical or legal definition. *Page 976
Proponents' second assignment of error is to the same effect, and the reasons therefor are much the same as the first main assignment; and so also is the third, which is the alleged error of the court in overruling the motion for new trial. We need do little more than refer to the extracts from the record which we have given. Her competency, under the record, was a question that the jury must determine. We must hold the verdict is not one which we can disturb. The testimony of the witnesses showed Edna's peculiar condition of mind, action, and disposition, through her life. There was evidence which the jury might consider as to the type of mental disease with which she was afflicted. The jury had a right to consider that the disease was progressive and permanent and continued over the period during which her will was drawn and signed; that there was no lucid interval throughout that period; that she was not in a condition to recollect and know the extent of her property and the natural objects of her bounty, or to know and comprehend the manner in which she wanted to distribute her property, or the nature and claims of those who were excluded from participating. All these facts were testified to, and, whether contradicted or corroborated, or whether the evidence was credible or not credible, were questions for the jury to determine. See the case of Philpott v. Jones, 164 Iowa 730, 146 N.W. 859; and our recent case of In re Estate of Ensminger, 230 Iowa 80, 82, 296 N.W. 814,815, and the cases cited therein.
We hold that there was competent evidence in this case from which the jury would be authorized to find that the legal requirements as to testamentary capacity did not exist. Our holding must be that the court was justified in refusing to direct a verdict and in overruling the motion for a new trial, and the cause must, therefore, be affirmed. — Affirmed.
BLISS, C.J., and SAGER, OLIVER, and GARFIELD, JJ., concur. *Page 977 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430668/ | 1 PRINCIPAL AND SURETY: Bond — Construction — Who May Sue. A surety company bond, prepared by the company itself, must be strictly construed against the company. So held where the principal in the bond, in contracting for the construction of a public improvement for a municipal corporation, agreed (a) to pay for all material used "which may become a lien upon the consideration therefor, or claim against the town," and (b) to give bond conditioned accordingly, it being held that the bond so given was holden for the claims of both the city and materialmen, whether the materialmen perfected any lien or not. (Secs. 3102, 3104, Code, 1897.)2 PRINCIPAL AND SURETY: Bond — Construction — ContractGuaranteed. A surety bond guaranteeing the performance of a specified contract must be read and construed in the light of the contract so guaranteed.3 ACTIONS: Parties — Action on Public Bonds. An action on a public bond may be maintained by anyone for whose benefit the same was given, though not specifically mentioned therein. So held in favor of materialmen in an action on a bond guaranteeing the payment of material used in the construction of a public improvement.4 CONTRACTS: Construction — Belated Construction — Waiver.
Deliberately adopting a certain construction of a contract may preclude one from subsequently setting up and insisting on a contrary construction.
PRINCIPLE APPLIED: A contractor agreed to construct a public improvement and to pay for all materials used therein "which may become a lien on the consideration therefor or a claim against the town." He gave a bond, with surety, to fulfill this contract. After the work was completed, and after the time had *Page 298 expired in which materialmen might have perfected a lien against thefund, the surety brought an action against the town and the contractor, alleging that the contractor was insolvent and had failed to pay for materials and that it — the surety — was in danger of being made liable therefor, and secured a judgment impounding $5,000 of said fund with which to discharge the claims of materialmen. Later, in an action on the bond by a materialman, the surety pleaded that the bond was for the sole benefit of the town, and not for materialmen who had not perfected alien on the fund. Held, the surety had waived this latter claim — was bound by its former interpretation of the bond.
In January, 1914, the plaintiff filed in the office of the district court of Linn County, Iowa, the following amended and substituted petition:
"That, on or about the 23d day of February, 1911, the defendant Henning-Vineyard Company entered into a written contract with the town of Mt. Vernon, for the constructing of town sewers, etc., and among other things agreed in said contract, as follows:
"`The said Henning-Vineyard Company agrees and guarantees to pay for all material used in or about the construction of such sewers which may become a lien upon the consideration thereof or claim against said town, and the fulfillment of this agreement and guaranty as a part of this contract shall be secured by the bond of the contractor.' . . . *Page 300
Exhibit "A" and made a part hereof. That, on the 27th day of February, 1911, the contractors as principal and your orator as surety, made, executed and delivered to the said incorporated town of Mt. Vernon, a certain bond to secure the performance of the contract, a correct copy of which said bond is hereto attached and made a part of this orator's bill of complaint. That, after the execution and delivery of the contract and bond, the said contractors duly entered upon the performance of the work contemplated by said agreement and did, except as to the making of payments and discharge of claims for labor performed and material furnished as hereinafter alleged, fulfill the stipulations of said agreement and conform to the requirements thereof, and fully performed the same, and the said work was completed and accepted by the incorporated town of Mt. Vernon on the 11th day of May, 1912. That said town did fulfill and perform the stipulations of said agreement on its part to be performed and paid up all except the amount of $19,500, which amount the town withheld out of the contract price and still withholds said amount. That said contractors have not nor has anyone for them or on their behalf, performed the stipulations of said contract with reference to making payment for all materials and labor used in and about the construction of said sewers which may become a lien upon the consideration therefor or claim against said town, but have wholly failed and refused and still refuse to do so; that there is due to various persons for labor done and material furnished in the construction of said sewers a large sum of money aggregating in value $12,000. That the Streator Clay Manufacturing Company, a corporation, has brought suit against your orator in the district court of Linn County, Iowa, to recover the sum of $4,270.18, alleged to be due it for labor performed and materials furnished in the construction of said sewers in accordance with the contract above referred to, and it is alleged by many others of said claimants that your orator will be compelled to satisfy their said claims, together with interest due thereon, and said claimants *Page 301
threaten to and will institute suits against your orator for the purpose of enforcing said alleged claims against your orator, and your orator is threatened with multiplicity of suits by reason thereof. Your orator further alleges that said contractors and each of them are insolvent and unable to pay off the debts so contracted for labor done and materials furnished in the construction of said sewers. . . . That any rights, if any, which the said contractors or either of them may claim to have to said funds so being held, are subordinate and subject to the rights of your orator to have said fund applied to the payment of claims for labor performed and materials furnished in the construction of the work in completing of said sewers. Your orator further says that it is without adequate remedy at law; that the circumstances in this case are such that it is without relief save in a court of equity; that there is involved in this case property or funds which it has a right to or interest in or equitable lien upon; that the same is in danger of being lost, removed or materially injured; that the appointment of a receiver is herein prayed to take charge of said funds, and ascertain and pay off the debts and claims due for labor performed and material furnished in said work. Your orator further says that it has no desire to avoid payment of any just debt for labor performed or material furnished for the construction of said sewers for which it may be legally liable, but only seeks to prevent misapplication of said funds and to secure the proper application thereof; that the question here presented involves a common or general interest of many persons; that the said creditors are numerous and it is impracticable to bring them before the court within a reasonable time. And your orator prays that it may have the relief in the premises to which in equity it is entitled to as the same shall appear upon the facts to be just and equitable and that it may have such relief the same as if it were here and now made the subject of a specific prayer; and to the end therefore that your orator may obtain relief in the premises, it humbly prays, first, that it be adjudged and *Page 302
decreed that, by reason of the premises, the money coming from said town is a fund which the complainant as surety is entitled to have applied to the satisfaction of lawful debts for work done and materials furnished for said work.'
"That said complaint was duly verified and summons duly issued and served upon the said defendants in said action, and that afterwards, the said incorporated town of Mt. Vernon filed therein its answer to said bill of complaint, in which the said incorporated town admitted the allegations herein set out, except that it denies that it had in its possession the sum of $19,500, but admitted that it had in its possession about $9,000 in cash and about $10,000 in assessment certificates, and further in said answer averred as follows:
"`This answering defendant denies that it is liable or may be made liable for any unpaid claims for labor and materials furnished the said contractors in the construction of said sewers and plant, but alleges and avers that said claims might become a lien upon the funds in the possession of this answering defendant and which was to be paid by said contractor under the terms of said contract.'
"That such proceedings were had in said suit so brought by the said Illinois Surety Company in the said United States District Court, that on the application and at the instance of the Illinois Surety Company the said district court entered and rendered a decree therein, providing among other things as follows, to wit:
"`It is ordered, adjudged and decreed by the court that the said complainant, the Illinois Surety Company, is entitled to have the sum of $5,000 of the fund now withheld by the incorporated town of Mt. Vernon, Iowa, retained in the possession of said town until the alleged claim asserted by the Streator Clay Manufacturing Company against the said complainant, on its said bond be adjudicated and determined. That in the event it should be held that the said Streator Clay Manufacturing Company is entitled to recover the amount of its alleged claim against the complainant, the Illinois Surety *Page 303
Co., then the incorporated town of Mt. Vernon is authorized to pay out of said fund of $5,000 the amount of any judgment or decree entered against the Illinois Surety Company in said suit and in exoneration of its liability therefor. That in the event there should be any balance of the said sum of $5,000 remaining after paying of such judgment or decree so rendered against the Illinois Surety Company in favor of the said Streator Clay Manufacturing Company in the said suit pending in the district court, then the balance so remaining shall be paid over by the town to the Mercantile Trust Savings Bank or its attorney of record in this case. . . . It is further ordered, adjudged and decreed by the court that the above amount of $5,000 so impounded shall be withheld in the form of sewer assessments issued for the construction of said sewer out of the number of said sewer certificates that it now holds of said fund due from the town of Mt. Vernon, Iowa, for the construction of its sewer to the Henning-Vineyard Company.' And said decree of said court further provided as follows: `The $5,000 to be withheld by said town of Mt. Vernon, Iowa, until the final adjudication of the claim asserted against the Illinois Surety Company by the Streator Clay Manufacturing Company for labor performed and materials furnished under the contract referred to in the bill of complaint, the same to be held in assessment certificates.'
"And plaintiff avers that said $5,000 is so held as in said decree provided. And plaintiff avers that by said acts above set out the Illinois Surety Company has construed the said bond and contract as having been made for the benefit of persons furnishing labor and material used in and about the construction of said sewers for which a lien or claim might be filed with the town of Mt. Vernon, Iowa, and plaintiff avers that in truth and in fact the said bond and contract was made for the benefit of parties furnishing labor and material used in and about the construction of said sewers, the claims for which were lienable. Plaintiff further avers a breach of said contract and bond by all the defendants *Page 304
herein, in this, to wit, that the said Henning-Vineyard Company,. . . . have not, neither has any person for or in their behalf paid to this plaintiff for the materials so furnished and used, though the claim for said materials was lienable or claimable, and though the consideration to be paid therefor is long past due. . . .
"Wherefore plaintiff asks judgment against the defendants and each of them in the said sum. of $4,270.18 with 6 per cent. interest per annum from October, 1912, and for costs of this action."
The contract referred to in the petition, so far as material, is as follows:
"This contract, made the 23d day of February, 1911, between Henning-Vineyard Company and the town of Mt. Vernon, Iowa, Witnesseth:
"That for the consideration hereinafter named the said contractor agrees to furnish all material and labor for the construction of sewers, sewer outlet and disposal plant in said town according to the detailed plat, specifications and drawings of the engineer of said town and the ordinances, resolutions and notice to contractor pertaining thereto, and the proposal of said contract as accepted by the town, all of which are hereby referred to: To commence said work by April 10th, 1911, and finish and complete the same before the 1st day of December, 1911, in a good, substantial and workmanlike manner in all respects as required by said detail plans and specifications therefor hereto attached marked Exhibit `A' and made a part hereof. Said sewers to be constructed of first quality vitrified sewer pipes, and all man holes, flush tanks and settling tanks to be constructed of Portland cement concrete, as set forth in said plans and specifications therefor, and are to be located and constructed as follows, (Here follows the designation of the streets of the town of Mt. Vernon in which said sewers are to be laid). Andfurther agrees and guarantees to pay for all material used in and aboutthe construction *Page 305 of said sewer which may become a lien upon the consideration therefor orclaim against said town and the fulfillment of this agreement andguaranty as a part of this contract shall be secured by the bond of saidcontractor. And in consideration of the agreements and covenants hereincontained and upon the complete fulfillment thereof on the part of thecontractor, said town of Mt. Vernon agrees to pay therefor in the manner and out of the funds hereinafter stated as follows. [Here follows a proposition of said corporation as to what work would be done and how, and then this:]
"And I hereby agree to enter into a contract within 10 days from date of your acceptance of this proposal and to finish and complete the work accordingly by the first day of December, 1911, and to furnish a bond with such sureties for the fulfillment and performance of said contract and the payment for all materials and labor used in or about the same which may become a lien on the consideration therefor or a claim against the said town as shall be approved by said council in case the above proposal be accepted, and a default or failure on my part to enter into a contract for the construction of said sewer and giving bond for the fulfillment thereof within said 10 days, I hereby agree that the sum of $500 deposited with the clerk or treasurer of said town, certified check therefor and the amount therein specified shall, at the option of said town council, be forfeited to said town as liquidated and agreed damages. Dated at Mt. Vernon, Iowa, Feb. 21, 1911.
(Signed) "HENNING-VINEYARD COMPANY.
"TOWN OF MT. VERNON."
The bond referred to is as follows:
"Know All Men By These Presents, That the Henning-Vineyard Company, as principal, and the Illinois Surety Company, as surety, are hereby held and firmly bound unto the said town of Mt. Vernon, in the penal sum of $14,300.00, and the payment thereof, to said town of Mt. Vernon, its successors *Page 306
and assigns, and the Henning-Vineyard Company, the said Illinois Surety Company of Chicago, Illinois, do hereby jointly and severally bind themselves, their successors and assigns firmly by these presents. The condition of the above obligation is such that if the said Henning-Vineyard Company shall furnish all material and labor for constructing town sewers, in said town of Mt. Vernon, and finish and complete the same on or before the 1st day of December, 1911, in accordance with the terms and conditions, agreements and guaranties contained in the contract thereof or made a part of said contract by reference between said Henning-Vineyard Company and the town, of even date herewith, then this obligation shall be void, otherwise to remain in full force and virtue."
To the amended and substituted petition so filed, the Illinois Surety Company demurred, alleging that the facts alleged did not entitle the plaintiff to the relief demanded, for the following reasons:
That the allegations show that the bond sued on was made for the protection of the city only, and not for the protection of any claimants who failed to establish a lien or preference against the fund remaining in the hands of the town. That the allegations do not show that the plaintiff ever served any notice upon the town or any of its officers, or any itemized statement of its claim, as required by Section 3102, Code, 1897. That the allegations do not show that the plaintiff has any claim against the fund or against the town, or that the town is under any liability to the plaintiff. That the plaintiff was not a party to the suit in which it was claimed the Illinois Surety Company construed the contract; that any construction put upon the bond in said suit is not available to the plaintiff. That the allegations do not show any estoppel or any of the elements of estoppel, in favor of the plaintiff. That the allegations made by the surety company in the suit in the United States court did not make any concessions *Page 307
or put any construction upon the bond that would render the company liable to the plaintiff. That any admissions made by the town of liability would not be binding upon the surety company.
This demurrer was sustained by the court. To this demurrer the plaintiff duly excepted and appealed.
The original petition was filed August 3, 1912, and, as filed, asked relief against all the defendants named in the amended and substituted petition, and also against the town of Mt. Vernon. The last item in plaintiff's account was furnished on the 11th day of August, 1911. In August, 1912, the Illinois Surety Company filed its bill of complaint in the district court in and for the northern district of Iowa, referred to in plaintiff's amended and substituted petition. At the September, 1912, term of court, all the defendants appeared to the original petition and filed a demurrer thereto. This demurrer was sustained on January 13, 1914. In due time thereafter, the plaintiff filed the amended and substituted petition hereinbefore set out. The amended and substituted petition now involved in this suit was filed after the decree had been rendered in the United States district court, referred to in the petition, and after a decree had been entered as follows:
"It is ordered and adjudged that the Illinois Surety Company is entitled to have the sum of $5,000 of the fund now withheld by the incorporated town of Mt. Vernon, retained in the possession of said town until the alleged claim asserted by the Streator Clay Manufacturing Company against the surety company on its bond is adjudicated and determined. That in the event it should be held that the Streator Clay Manufacturing Company is entitled to recover the amount of its alleged claim against the surety company, then the incorporated town of Mt. Vernon is authorized to pay out of said fund of $5,000, the amount of any judgment or decree entered against the Illinois Surety Company in said suit, and in exoneration of its liability therefor." *Page 308
The date when this decree was entered does not appear. "We must assume that it was entered within a reasonable time after the suit was brought, that is, after August, 1912. The amended and substituted petition on which the plaintiff now relies was not filed until January, 1914, and after the demurrer to the original petition was sustained. This brings us to a consideration of the real controversy.
1. PRINCIPAL AND SURETY: bond: construction: who may sue.
The allegations in the contract between the town and the Henning-Vineyard Company, upon which the plaintiff relies to hold the surety company liable to this plaintiff, are found in the following provisions of the contract: "And further agrees and guarantees to pay for all material used in and about the construction of said sewer which may become a lien upon the consideration therefor, or claim against the town, and the fulfillment of this agreement and guaranty as a part of this contract shall be secured by the bond of such contractor."
And the further provision:
"To furnish a bond with such sureties for the fulfillment and performance of said contract and the payment of all materials and labor used in and about the same which may become a lien on the consideration therefor or a claim against the town."
To secure the fulfillment of the duties assumed by Henning-Vineyard Company to the town in the contract, the bond in suit was executed. This bond provided that the Henning-Vineyard Company, as principal, and the Illinois Surety Company, as surety, are held and firmly bound unto the said town, and that they thereby jointly and severally bound themselves to perform the conditions of the bond. The condition of the bond referred to and relied upon by the plaintiff is as follows:
"The condition of the above obligation is such that if the said Henning-Vineyard Company shall furnish all material and labor for constructing town sewers, and finish and complete *Page 309
the same on or before the 1st day of December, 1911, in accordance withthe terms and conditions, agreements and guaranties contained in thecontract or made a part of said contract between the Henning-Vineyard Company and the town, then the obligation shall be void, otherwise to remain in full force and virtue."
It is the contention of the plaintiff that with these conditions, agreements and guaranties in the contract hereinbefore set out, and with this condition in the bond, the surety company bound itself to perform every condition, agreement and guaranty contained in the contract, in the event the same was not performed by the Henning-Vineyard Company, for which the fund or the town might be made liable under the terms of the statute; and this, without any limitation. That if, in the progress of the work, any labor or material was furnished by anyone which might, by following the provisions of the statute, become a lien upon the consideration to be paid, or a claim against the town, the contractor stipulated and agreed and guaranteed to pay for the same personally, and without resort to the fund and without embarrassing the town by having claims filed against it as provided in Section 3102, Code, 1897.
This contention depends upon the construction to be given to the contract between the town and the principal contractor. It is difficult to make it any plainer than is made by the wording of the contract itself. The contractor agreed to put in this sewer for the town. He agreed to furnish the labor and material. In doing this, he might and did create obligations which the parties who held the obligations might make liens against the fund or against the town by pursuing the course pointed out in Section 3102. As soon as the obligation was created, the materialmen or laborers had a right to and could make their claims a lien against the fund, or against the town, as provided in Section 3102, which reads:
"Every . . . laborer or other person who, as subcontractor, shall perform labor upon or furnish materials *Page 310
for the construction of any public . . . improvement . . ., shall have a claim against the public corporation constructing such . . . improvement for the value of such services and material, not in excess of the contract price . . . Such claim shall be made by filing with the public officer through whom the payment is to be made an itemized sworn statement of the demand, within thirty days after the performance of the last labor or the furnishing of the last of the material, and such claims shall have priority in the order in which they are filed."
The plaintiff's claim was one which could have been made a claim against the town by following the provisions of this statute. The town, with this possibility in view, exacted of the contractor an agreement on his part and a guaranty to pay for all materials used in and about the construction of the sewer "which may become a lien upon the consideration or a claim against the town;" and, to secure the performance thereof, exacted from him an agreement to give a bond securing its performance. In pursuance of this agreement, this bond was executed and this surety company undertook that, if the principal contractor failed to furnish all material and labor for constructing the sewer, and failed to carry out all the agreements and guaranties contained in the contract, or made a part of the contract, it bound itself jointly and severally with the principal contractor to do so. The principal contractor bound himself to perform all the conditions, agreements and guaranties contained in his contract. The surety company in its obligation undertook to perform these agreements and guaranties, if not performed by its principal. One of these was to pay for the material furnished.
2. PRINCIPAL AND SURETY: bond: construction: contract guaranteed.
This was clearly a contract made for the benefit, not only of the town, in that thereby it avoided complications with subcontractors, but for the benefit of the subcontractors themselves, and this by the very terms of its bond, read in the light of the contract between the principal contractor and the town. The contract is particularly referred to in the bond, *Page 311
and the surety company undertook to insure the performance of the contract on the part of the principal contractor, with all its conditions, agreements and guaranties, in these words, when used conversely:
"If the said Henning-Vineyard Company shall not furnish all material and labor for the construction of the town sewers and finish and complete the same on or before the 1st day of December, 1911, in accordance with the terms, conditions, agreements and guaranties contained in the contract, then this bond shall be in full force and effect."
The undertaking of the principal contractor was that he would furnish all material and labor, in accordance with the terms, conditions, agreements, and guaranties contained in the contract, and pay for the same, provided they were such that, under the statute, they might become a lien upon the consideration or against the town, and, as a part of the contract, and to secure the fulfillment of the agreement and guaranties therein contained, he would execute a bond securing the performance. The town was not interested in having the principal contractor pay for any labor or material such as might, under the statute, become a lien upon the fund or a claim against the town. This it had an interest in, to a limited extent, and a right to exact an agreement from the principal contractor that he would pay these claims, and that he would execute a bond conditioned that he would pay them. His agreement was that he would execute a bond conditioned that he would pay them, without requiring the person entitled to payment to proceed against the town for the fund, as provided by Section 3102. This is a surety company. The bond was prepared by it. It must be strictly construed against the company. Having made reference in the bond to the contract and the conditions, guaranties, and agreements in the contract, and having bound itself as surety to the performance of the contract, it must be holden to have undertaken the performance of all the agreements of the contract. It will be noted that in the bond itself, the surety, choosing its own words, said: *Page 312
"The condition of the above obligation is such that if the said Henning-Vineyard Company shall furnish all material and labor for constructing town sewers and finish and complete the same before the first day of December, 1911, in accordance with the terms and conditions and agreements and guaranties contained in the contract."
It must be assumed that they knew that their principal, in the principal contract, had stipulated and agreed and guaranteed that he would pay for all material used in and about the construction "which may become a lien upon the consideration," and that he undertook and agreed, in fulfillment of these agreements and guaranties, and as a part of the contract, to secure its performance on his part by a bond.
In the construction of all contracts, the purpose, in and through construction, is to arrive at the intent of the parties. Where the intent of the parties is so plainly expressed that a mere reading of the contract leads the mind at once to a satisfactory conclusion as to what the parties intended by the contract, then there is no room for construction. When courts are called on to construe contracts, it is their duty to ascertain, if possible, from the contract itself, what the parties meant by it. Resort must be first had to the language contained in the contract, to the circumstances and conditions under which the contract was made, and the rights and obligations of the parties as created by the contract.
The language of the original contract clearly exposes the purpose of the town and of the principal contractor to avoid trouble and annoyance on account of unpaid bills for labor and material, and to avoid any annoyance and disadvantage to the town by reason of the filing of claims under the provisions of the statute. The surety was bound to know of this purpose and this intent of the original contracting parties, from the very nature of the contract itself. With this purpose and object in view, as expressed in the original contract, it is easy to determine what the parties meant when they used the terms in the contract: *Page 313
"And further agrees and guarantees to pay for all material used in and about the construction of said sewer which may become a lien upon theconsideration therefor, or a claim against the town."
Looking to the contract and considering its purpose, the contract should be construed to mean that all persons who have the right to acquire liens upon the property are entitled to the benefit of the contract. The agreement was to discharge all indebtedness that may be incurred by the contractor which may or might become a lien by following the provisions of the statutes, and this regardless of whether a lien was acquired upon the property or not. The contract expressly provides for the payment of the claims of those who are entitled to acquire a lien. Any other construction would nullify the plain and manifest intent of the parties. The bond was conditioned that the principal contractor should perform this, to wit, pay for all material and labor which may become a lien upon the fund, whether the party took the necessary steps to effectuate the lien or not. The purpose was to prevent the taking of the steps which would create a lien, and, to avoid this, gave to the persons who were entitled to a lien a right to pursue the bond.
As bearing upon this question, see Getchell Martin Lbr. Co. v.Peterson, 124 Iowa 605; Gwinn v. Wright (Ind.), 86 N.E. 453; Ochs v.Carnahan (Ind.), 76 N.E. 788; National Surety Company v. Foster LumberCo. (Ind.), 85 N.E. 489.
The agreements in the contract and the giving of the bond were anticipatory of the rights conferred by Section 3104, Code, 1897, which provides:
"The contractor may at any time release such claim by filing with the treasurer of such corporation a bond for the benefit of such claimant, in sufficient penalty and with sureties to be approved by such treasurer, conditioned for the payment of any sum which may be found due such claimant. Such contractor may prevent the filing of such claims by filing in like manner a bond conditioned for the payment of persons *Page 314
who may be entitled to file such claims, and actions may be brought on any such bond by any claimant within one year after his cause of action accrues."
3. ACTIONS: parties: action on public bonds.
Our construction of this bond leads to the conclusion that the contract was made and the bond intended to secure the performance by the contractor of his obligation to pay for materials for which a claim might be made against the consideration named in the contract, without requiring the claimant to proceed under Section 3102, and we think there is no doubt that it was made to prevent the actual making of such claims against the city, as provided in that section, or, at least, to avoid the necessity of embarrassing the city by the filing of such claims. Section 3467, Code, 1897, authorizes the bringing of this action upon this bond. Subcontractors have a right, under the statute, as long as the consideration is in the possession of the corporation, to have the amount in the hands of the corporation applied to the payment of their claims, as against the principal contractor. No doubt this plaintiff would have filed his claim and proceeded against the fund, if it had not been for the provisions of this bond. It was a claim that he might have filed and thereby secured payment out of the fund. The principal contractor agreed to pay this claim without requiring the plaintiff to proceed under this statute, and agreed to give a bond conditioned that he would pay it. He did give the bond, and the bondsman is now holden.
As bearing upon this question, see Hipwell v. National SecurityCo., 130 Iowa 656, 660; Humboldt County v. Ward Bros., 163 Iowa 510;Thompson Peterson v. Stephens, 131 Iowa 51; North St. Louis PlaningMill Co. v. Christophel (Mo.), 137 S.W. 295.
It is our opinion that this bond, when construed in the light of the contract, gives to this plaintiff a right to resort to the bond for payment of his claim.
4. CONTRACTS: construction: belated construction: waiver.
On the other proposition, involved in the bringing of the suit by the surety company in the Federal court, we have to *Page 315
say that, when this suit was brought, the time in which plaintiff might have filed his claim had long since passed, and this fact was known to the surety company. If the contention now made by the company is to be upheld, it would seem that that was not the contention of the company at the time it brought this suit in the Federal court. If this contention is true, neither the town nor this surety company was, in anyway, holden to this plaintiff; for the plaintiff had not complied with any of the requirements of Section 3102 which would give it a lien on the fund or claim against the town. The surety company must have instituted this suit solely for its own protection. If its present contention is right, there was no liability and it needed no protection, and had no right to maintain the suit. It had no interest in the fund or the disposition of the fund, so far as this plaintiff was concerned; yet it procured a decree in its favor requiring the town to impound $5,000 to be held for its use and benefit, and as a protection to it against the claim of the plaintiff which, it says now, never existed, or at least did not exist at the time the suit was brought. We think that, by this action, it waived the claim it is now asserting, recognized its liability upon the bond, and cannot now be held to dispute it. It put its own construction upon the bond, and said:
"We are holden to this plaintiff; we are afraid that the fund out of which payment might be made may be dissipated; we have a right in this fund to the extent of this claim, if we pay it; we want so much of the fund set aside to protect us;" and a decree was entered accordingly.
Under the whole record, we think that the court erred in sustaining the demurrer, and the cause is, therefore, — Reversed.
DEEMER, LADD and SALINGER, JJ., concur.
*Page 601 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430686/ | I. The information upon which defendant was tried and convicted is as follows:
"That said La Verne Schenk on or about the 19th day of April, A.D. 1942, in the County of Benton and State of Iowa, did, with Cato Noeller and Robert Abernathy and others, to the undersigned unknown, conspire together to wrongfully and unlawfully injure the property of the Vinton Produce Company, a partnership, and its employees and the Marshal of the City of Vinton, Iowa, and the Deputy Marshals of the City of Vinton, Iowa, lawfully assembled for the purpose of preventing breaches of the peace and other unlawful acts at and in the vicinity of the property of the said Vinton Produce Company contrary to the peace and dignity of the State of Iowa."
The crime charged was that of conspiracy, as set forth in section 13162, Code of 1939, which is as follows:
"If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the * * * property, or rights in property of another * * * they are guilty of a conspiracy, and every such offender, and every person who is convicted of a conspiracy at common law, shall be imprisoned in the penitentiary not more than three years."
Under this statute the defendant was tried and convicted.
[1] II. Before setting forth the legal principles to be applied where the crime charged is that of conspiracy we will briefly review the evidence upon which the State relies to sustain the charge. The State makes no claim that there is direct evidence of the charged conspiracy. Its claim is that *Page 181
the record shows sufficient facts and circumstances to establish such charge. We think the record fully sustains this claim of the State.
The jury was warranted in finding from the evidence the following facts: The Vinton Produce Company, of Vinton, Iowa, was a copartnership engaged in handling at its place of business various products such as cream, eggs, and poultry, and had a considerable number of workmen of both sexes in its employ. Sometime about April 16 or 17, 1942, there was organized among its employees a local union affiliated with the CIO. The defendant had come to Vinton shortly prior to this time and under his direction the local union was organized. On Saturday, April 18th, some of the workers quit and organized a strike, and the evidence shows that defendant was in charge of its activities. Under his direction a picket line was formed to prevent ingress into the place of business of the company. All the workers did not quit their jobs and walk out. Some claim is made that various officers of the local union were discharged, thereby causing the strike. There was evidence from which the jury could find that various workers refused to abide by the working rules and quit and that others joined in sympathy. Especial effort was made to prevent workers from entering the plant. From the time the picket line was set up it was maintained at all times. Farmers who brought in products were stopped and were urged not to enter. On several occasions cars carrying officials of the company were stopped, some were lifted from the ground, and in some instances efforts were made to tip over such vehicles. Some of those active in the picket line were not striking employees and some did not live in Vinton. Some days prior to the strike the defendant was at a meeting of the Greater Vinton Club, composed of some businessmen in Vinton, at which time the labor situation was discussed. Defendant stated that he was an experienced organizer; that he had participated in the strike at the Ford plant in Detroit; that blood was there shed and lives lost — more than outsiders found out about; that if there was a strike in Vinton it would be a strike that Vinton would never forget; also, that in case of a strike at Vinton he, defendant, would have absolute control, and it was his will which would *Page 182
govern. Following the incidents of April 18th, the authorities of Vinton, fearing an outbreak of violence, deputized a considerable number of its citizens to act as special police. All were sworn in and gave bonds. They were instructed to go unarmed and prevent violence; they were also advised that it was lawful to strike and that peaceable picketing was permitted. The defendant knew of the precautions being taken.
On Monday, April 20th, an attempt was made to bring into the plant workers who were not strikers and who wanted to return to their jobs. As early as 6:30 a.m. an effort was made to transport them into the plant. The special deputies were there to maintain order. Defendant was there and knew of the purpose of the officers and the effort to get the workers into the plant. There was evidence that the night before defendant was seen distributing clubs to some of the pickets and was heard to tell the pickets that Monday morning some four hundred farmers armed with pitchforks were coming in and that they had to be ready for them. When the various workers not on strike sought to enter the plant, defendant was there, moving about among the pickets and their sympathizers, giving directions. Some of the pickets carried rocks, bricks, and clubs. Both Noeller and Abernathy were there armed with clubs. The special deputies were there attempting to get the workers into the plant. As a truck and cars carrying employees sought to enter the plant the pickets formed in line to prevent their entrance. There were about twenty persons of both sexes in the truck. At that time defendant was out in front and was seen carrying a large stone. As the vehicles, escorted by special officers, approached, the defendant threw a stone or some missile at the truck and this was followed by a general fusilade of bricks and stones. Many of such were later found in the truck; car windshields and windows were broken or shattered and the bodies dented. The fighting became general. Defendant was seen running about giving signals and directions, while Noeller and Abernathy were wielding their clubs, striking various people, knocking them down and injuring them. Some of the group received serious and painful injuries, necessitating medical attention. One had a skull fracture. About the time the *Page 183
rioting ceased, defendant, addressing some of his group, was heard to say, "Folks, you done a good job." There were other facts and circumstances in the record which the jury could properly take into consideration in passing upon the charge.
While there were contradictions and conflicts in the evidence, yet we think there was sufficient to establish the foregoing.
III. The term "conspiracy" has often been defined. The Supreme Court of Kentucky, in Commonwealth v. Donoghue, 250 Ky. 343, 347,63 S.W.2d 3, 5, 89 A.L.R. 819, defined it:
"But the broad definition or description everywhere accepted is that conspiracy is a combination between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means."
[2] Regarding the evidence necessary to establish the crime of conspiracy it has been held that the general rules of admissibility of evidence in criminal cases apply, and any competent evidence, direct or circumstantial, including acts and declarations of the parties themselves is admissible. 15 C.J.S. 1140, section 92. The guilt of the accused must be established beyond a reasonable doubt; but circumstantial evidence alone may be sufficient to sustain a conviction. 15 C.J.S. 1146, section 93. There are cited, as sustaining the above: State v. Moore,217 Iowa 872, 251 N.W. 737; State v. Lowenberg, 216 Iowa 222,243 N.W. 538; State v. Hartman, 213 Iowa 546, 239 N.W. 107; State v. Terry, 207 Iowa 916, 223 N.W. 870; State v. Priebe, 198 Iowa 609,199 N.W. 276; Boom v. Boom, 206 Iowa 70, 220 N.W. 17. An actual agreement to enter into a conspiracy need not be proved by direct evidence to warrant conviction for such crime. A prima facie case may be made out by the acts and declarations of the defendant himself. State v. Caine, 134 Iowa 147, 111 N.W. 443; State v. Moore, supra; State v. Stevens, 67 Iowa 557, 25 N.W. 777; State v. Gadbois, 89 Iowa 25, 56 N.W. 272. In State v. Moore, supra (conspiracy), the defendant Moore and another were indicted and convicted in connection with resistance to the law providing for the testing of cows for tuberculosis. There the court held the crime could be shown by circumstantial as well as direct evidence and that *Page 184
it was the province of the court to determine the order in which the evidence should be introduced. State v. Paden, 199 Iowa 383,202 N.W. 105; State v. Walker, 124 Iowa 414, 100 N.W. 354; State v. Arthur, 135 Iowa 48, 109 N.W. 1083; State v. Schreck, 231 Iowa 542,549, 1 N.W.2d 690, 694. In the Schreck case, this court said:
"`The fact of conspiracy may be established by circumstantial evidence. It is sufficient if there is proof of concert of action. This is true in the administration of both civil and criminal law. Hanson v. Kline, 136 Iowa 101; State v. Arthur,135 Iowa 48.'"
The above quotation was taken from a holding of this court in the case of State v. Priebe, supra.
"Conspiracies need not be established by direct evidence of the acts charged. They may, and generally must, be proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused which are committed in pursuance of an apparently criminal or unlawful purpose in common to them. The existence of the agreement or joint assent of the minds need not be proved directly, but may be inferred by the jury from other facts proved. It is not necessary to prove that the defendants came together and actually agreed upon the unlawful purpose and its pursuit by common means." 11 Am. Jur. 570, section 38.
"Proof of the combination charged, it has been said, must almost always be extracted from the circumstances connected with the transaction which forms the subject of the accusation. The nature of the crime usually makes it susceptible of no other proof." 12 C.J. 633, section 226. See, also, 15 C.J.S. 1043, section 29.
"Although the fraudulent and corrupt combination, the common design, is the essential element, it is not necessary to prove that defendants came together and actually agreed in terms to have this common design and to pursue it by common *Page 185
means and so carry it into execution. Such proof can seldom be made and therefore is not required. It is sufficient to justify the jury in finding a conspiracy if it is shown that the persons charged with conspiring pursued by their acts the same object, often by the same means, one performing one part of an act and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing." 12 C.J. 638, section 231. See, also, 15 C.J.S. 1046, section 30.
In the rather recent case of State v. Schreck, supra, 231 Iowa 542,547, 1 N.W.2d 690, 693, the court had under consideration the question of the sufficiency of the evidence to sustain a charge of conspiracy. There the evidence was reviewed and this court held it sufficient. In so doing, the court said:
"The necessity of reasonable brevity prevents us from setting forth all the evidence in detail. However, as previously noted, it will be observed that Otto V. Schreck and Amos Schreck came to Algona together and, although the evidence does not show their presence together during all the conferences testified to, yetthe facts as developed show their close association and theirmutual interest in connection with the matters upon which theState bases its charge of conspiracy along with the charge ofextortion." (Italics supplied.)
On this same matter, we call attention to the quotation following, from State v. Lowenberg, supra, 216 Iowa 222, 227,243 N.W. 538, 541:
"It is strenuously argued by counsel that the evidence is utterly insufficient to sustain the verdict. This is the vital and controlling question in this case. It is peculiarly the province of the jury to pass upon questions of fact. Reversal upon the ground of the insufficiency of evidence to justify a conviction will follow only where the evidence to support the verdict is so utterly wanting that it cannot be sustained. State v. Manly, 211 Iowa 1043, 233 N.W. 110; State v. Glendening,205 Iowa 1043, 218 N.W. 939; State v. Cordaro, 206 Iowa 347,218 N.W. 477; State v. Kinart, 196 Iowa 492, 193 N.W. 413; *Page 186
State v. Madden, 170 Iowa 230, 148 N.W. 995." See, also, State v. Keul, 233 Iowa 852, 5 N.W.2d 849.
[3] IV. The first error urged by defendant is predicated upon the overruling of defendant's motion, made when the State had rested, "to take from the consideration of the jury all testimony of all witnesses in relation to injury or damage to any of the cars as testified to by the various witnesses at the time of the happening on April 20, 1942, except the truck, for the reason that the same is incompetent, irrelevant, immaterial and at variance with the allegation of the information and not binding on the defendant."
It seems to us that such an assignment, composed in part of argument, is indefinite, general, blanket in form, and is not sufficient under the Rules of this court to present anything for our consideration and determination. It fails to point out the particular evidence sought to be stricken, whether the same was objected to, or the witness giving such testimony. Under our Rules the assignment is not sufficient. State v. Perkins,208 Iowa 1394, 227 N.W. 417; State v. Briggs, 207 Iowa 221,222 N.W. 552, and cases there cited.
We think there is another reason why such claim of error is without merit. In Division II of this opinion we reviewed the evidence somewhat in detail, the disputed as well as the undisputed. We deem it unnecessary to repeat what was there set forth. The error urged, as above set forth, related to incidents happening on Monday, April 20th. It was on this date the truck, with other vehicles following, and in which a number of workers were riding, sought entrance into the company plant.
A number of eyewitnesses testified to the incident and identified and pointed out defendant, with the others named, as being an active participant in the attempt to prevent the vehicles and the workers riding therein from entering the premises of the company. The defendant does not deny that violence took place at that time. There can be little question as to how the incident arose and the results thereof. No citation of authority is necessary to sustain a holding that such evidence was admissible. It was all a part of the same transaction: a part of the res gestae. All of the vehicles were together and under the *Page 187
control of the company and engaged in transporting nonstriking workers into the plant. They were under the escort of officers of the law — a fact well known to defendant. There was evidence that defendant cast the first missile; others followed. Whether these hit the vehicles would make no difference. The intent to hit was there exhibited. Defendant's argument in support of the alleged error relates almost entirely to the testimony given by one James Bruce, a witness for the State, whose testimony to acts of violence related to Saturday, April 18th. He gave no testimony as to what happened on the Monday following. Bruce gave testimony that on Saturday, when he attempted to enter the plant, members of the picket line seized hold of his car, pulling and pushing it, lifting it from the ground, and making some move in the direction of upsetting it. While the motion of defendant to strike all evidence as to vehicles other than the truck related to what happened on April 20th, yet his argument deals with the testimony of Bruce, which related to the incidents of April 18th. In other words, the motion relates to one thing; the argument, to another. Such being the case, we can hardly logically consider the matter. However, we might say in passing that evidence given by Bruce as to what happened on April 18th might be properly considered along with the incidents which happened on April 20th. It seems to us that the connection and relationship were such that they threw some light on the whole transaction.
We hold that the court did not err in overruling the motion of defendant to withdraw from the jury certain evidence as to the injuries to vehicles other than the truck happening on April 20th. State v. Terry, supra; State v. Campbell, 213 Iowa 677,239 N.W. 715.
[4] V. The next error relied upon by the defendant relates to Exhibits J to Q, and it is stated that before they were identified they were permitted to lie on a rail in sight of the jury and that this tended to inflame the minds of the jury. In argument defendant refers to the exhibits as photographs. The record shows that these exhibits were pieces of cardboard with tacks stuck through them and were found on the street where the picket line was located on April 20th. The purpose for which these were to be used is quite obvious, and that was to puncture *Page 188
the tires of vehicles attempting to pass. These exhibits were identified without objection, and when offered no objection or statement was made by defendant that these exhibits had been allowed to lie on the rail before their admission or that before being admitted they were in plain sight of the jury. If the exhibits had not been admissible there might be some merit to defendant's claim. In this connection, we suggest that when exhibits are produced, identified, and offered the jury can readily see them and what they consist of. After an exhibit is introduced and taken to the jury room it can be seen, handled, and examined by all the jurors. We can see no merit whatever to a claim that it was error for exhibits to be where they could be seen by the jury, where later such exhibits were duly identified and received in evidence. We might add that all there is in the record to show the display of the exhibits is the statement of defendant's counsel.
[5] VI. A further error of which defendant complained was in permitting the witness L.J. McDowell to answer, over objection that it was leading, suggestive, and not within the issues, the question: "State whether Mr. Schenk said he was or wasn't an experienced labor organizer?"
In argument defendant implied that the purpose of the question was to show that he was a member of the labor organization known as the CIO and that it was propounded to create prejudice in the eyes of the jury. We have read the record and fail to find any attempt by statement or evidence that could be construed into seeking to discredit or prejudice defendant by reason of his membership in any organization. Nowhere did the State question the right of the workers of the Vinton Produce Company to organize a local union; in fact, that right was expressly conceded by the State. It will be noted that the question in no manner named any particular organization. We set out the answer: "That is what he said." The record shows that defendant on direct examination told of his experience as a labor organizer and stated that he was a member of the CIO. In the face of the record we see no merit to this assignment of error. State v. Smith,207 Iowa 1345, 224 N.W. 594. *Page 189
[6] VII. Defendant urged as error the failure to sustain motions for a directed verdict. When the State rested, defendant moved for a directed verdict, reciting nine separate grounds therefor. All were overruled. The defendant urged as error the overruling of grounds 3, 4, 6, and 9. We will not set out such grounds. In essence, they challenge the sufficiency of the evidence to warrant the court in submitting the case to the jury. Having heretofore set forth the evidence in considerable detail (Division II), we will content ourselves with saying that the court did not err in permitting the jury to pass upon the question submitted to it. That evidence tended to show that the defendant, Noeller, and Abernathy were present at the time of the riot, acting in concert in using violence to prevent nonstriking workers from going to their places of work. By act and example these persons incited and encouraged others to become active participants in the riot. All knew that the strike was in progress and that some workers did not quit but desired to continue working. Defendant, Noeller, and Abernathy had no connection with the Vinton company. None of them worked there. Defendant had come to Vinton from Detroit; Noeller lived in Cedar Rapids; and Abernathy was an employee of a railroad company.
Defendant claimed in the lower court, and argues here, that the prosecution was had because he was a member of the CIO, a labor union. We do not find that the record, so far as the State is concerned, bears out this claim. That the defendant was a member of such organization or any other had nothing to do with the proceeding. Whatever was in the case along that line was injected into it by the defendant himself. No one questioned the right of the workers of the Vinton Produce Company to organize to further their own interests, and no one questioned their right to employ the defendant to assist in such proceeding. The right of the worker to work is protected by the law. The worker also has the right to quit his job and go on a strike if he sees fit to do so. However, we desire to suggest that membership in an organization, either employee or employer, does not confer on it or its members a license to commit unlawful acts or grant them immunity for so doing. The law does not permit or contemplate anything of this kind. *Page 190
When this trouble arose there was ample legal machinery to be used in settling disputes between workers and their employers. From the record we infer that such legal machinery had been invoked and was in operation to settle the existing dispute. Such legal machinery does not countenance or contemplate force and violence in labor disputes: it was created to prevent such happenings. Workers may lawfully quit their jobs and may use peaceful means to persuade others to do likewise; but when they attempt, by force, violence, or intimidation to compel others to accede to their demands and quit their jobs they are acting in violation of the law. A worker who has the true interests of labor at heart will never resort to violence to enforce his demands. He will appeal to the law. In this connection it would be well for all to ponder on the words of Pitt: "Where law ends, tyranny begins."
[7] VIII. Defendant assigns as error the refusal of the court to permit his witness Edith Crisman to answer, on direct examination, the following question: "What was the particular purpose of that meeting?" Up to that point the witness had told of being present at a certain meeting on April 14th, where certain named persons, including the defendant, were present. An objection that the question called for an opinion and conclusion of the witness was sustained. Immediately following this ruling the witness was permitted to testify that certain persons were there to organize and that of the group there were five employees of the Vinton Produce Company. It is quite apparent that the witness stated the purpose of the meeting in the evidence above set forth. We find no prejudice in the ruling of which defendant complains.
[8] IX. Defendant urges as error the admission of certain exhibits — V, W, and R — offered by the State and objected to by defendant. Exhibit V was a short piece of rubber hose; W was a large piece of cement; and R was a sack containing pieces of brick and stone, some of which were found in the truck after the violence had subsided. Defendant argued that Exhibit W was a piece of hose. We think he is in error, as the record shows that Exhibit W was a good-sized piece of cement. Exhibit V was taken from Noeller shortly after the riot. All of these *Page 191
articles were identified as having been found at the place of rioting immediately after the rioting had ceased. There was evidence that just before violence broke out defendant was seen with a large piece of cement in his hand; that various persons in the crowd opposing the entrance of the truck had bricks and stones in their hands, and some were carrying pieces of rubber hose. There is in the record evidence that none of these articles was at the place prior to the riot.
We think that the court did not err in overruling objections to such testimony. In support of this holding we call attention to some of the authorities dealing with such question:
"Weapons connected with the accused, but not identified as having been used in the commission of the crime, are admissible where the circumstances permit an inference of the likelihood of their having been so used; and such weapons, where they are known or conceded not to have been so used, may nevertheless be admitted where they have probative weight in connection with issues other than the means used. * * * However, a weapon or instrument found in the possession of accused or of his criminal associates which, although not identified as the one actually used, is similar in form and character thereto, or which, from the circumstances of the finding justifies an inference of the likelihood of its having been used, is admissible for the purpose of showing availability to accused of the means of committing the crime in the manner in which it is shown to have occurred or for the purpose of showing preparation. Moreover, weapons known or conceded not to have been used in the crime are admissible where they have some probative weight or where they constitute part of the picture. So, although there is authority to the contrary, although it is not claimed or proved that it was used in the commission of the crime, a weapon or other instrument found in the possession of accused or his associates when arrested, or at or near the place of arrest, has been held admissible as part of the history of the arrest, even though it is not clearly shown to be the property of accused." 22 C.J.S. 1210, section 712c.
"Although not directly an instrumentality of the perpetration of a crime, certain objects which surround and relate to the *Page 192
same tend to illustrate it * * * It is well settled that things pertaining to a scene of a crime are competently offered in evidence and displayed before the jury." Wharton's Criminal Evidence, Eleventh Ed., 1288, 1289, section 760.
"However, the prevailing view is that it is not necessary that such identification should positively and indisputably describe and relate to such evidence. If a question of fact as to the connection of the articles sought to be admitted with the defendant or the crime is raised, the evidence should be admitted for the determination of the jury. The lack of positive identification in such a case affects the weight of the article or substance as evidence, rather than its admissibility." Wharton's Criminal Evidence, Eleventh Ed., 1292, 1293, section 762 (citing State v. Williams, 195 Iowa 785, 192 N.W. 901).
State v. Williams, 195 Iowa 785, 799, 192 N.W. 901, 907, was a murder case. It was the claim of the State that Williams waylaid, assaulted, and killed a schoolteacher, in a secluded spot near Valley Junction, Iowa. A whisky bottle was found near the body. Over objection of the defendant it was introduced and it was claimed that this was error. The court held its admission proper and said:
"It is evident that anything found in the immediate vicinity of the body that bears a relation to the crime committed was competent."
The case of State v. Walker, 192 Iowa 823, 837, 185 N.W. 619,626, was cited by defendant as authority for his claim that the various exhibits were not admissible as lacking identification. We do not think the case is in point. The crime there charged was larceny from a building in Webster City, wherein certain tires and auto accessories were taken on March 18, 1921. On March 29, 1921, certain officers raided a room in Fort Dodge, Iowa, and there found certain auto tires. Certain of these tires were offered as exhibits and, over objection, admitted. This court held this error, saying:
"They [the tires] were not in any sense identified by anyone as the stolen property from the Parkhurst warehouse, nor were they ever shown to have been in the possession of the defendant." *Page 193
In the present case all of the missiles offered were found immediately after the riot and at the place where the riot took place. Some were found in the truck after the violence ceased. Both State and defendant have cited the case of State v. McHenry,207 Iowa 760, 223 N.W. 535. There defendant was indicted for having possession of burglar tools. The State, over objection, introduced certain articles found in the house where the burglar tools were found. Some of the articles were men's and women's clothing, typewriter, dishes and glassware, twenty-three gallon cans of alcohol, bed linens, dresses, slippers, underwear and stockings, canned goods, butter, and coffee. It was held error to admit such articles as they had no relation to the crime and were not described in the indictment. However, the court held proper the admission of a rifle as the jury might find that the rifle could have been used by the burglars to arm themselves in case they were going to commit a burglary, and it might throw light on the possession of the burglar tools. We think that the two cases may be distinguished by the facts. In the present case the various exhibits bore direct relation to the whole affair: the violence, the riot, and the use of and throwing of them in connection with the whole transaction. And in addition there was ample evidence that these identical articles and others similar in character were made use of at the time of the riot.
Defendant does not seriously dispute the showing of violence, the riot, that various persons in the picket line sought to prevent the ingress of nonstriking workers into the plant, the throwing of the missiles, and the shattering of glass in the vehicles. We think that the court properly permitted the jury to pass upon the fact question in connection with the proffered exhibits.
[9] X. Another error urged relates to the admission, over objection, of testimony of witnesses Edith Jack and Eleanor Jack with reference to a hose in the hands of Betty Raue, and in admitting the hose in evidence. The hose was Exhibit V and according to the evidence was taken from Noeller by an officer sometime after the violence subsided. The two witnesses were offered in rebuttal and both testified that they saw Betty Raue emerge from the rioting crowd carrying a hose which was later identified as Exhibit V. There is nothing in the record *Page 194
to show that this exhibit was introduced by reason of the testimony of these two witnesses. Betty Raue was in the picket line the morning of April 20th. She was not a worker at the Vinton Produce Company but had been at the scene of the strike most of the time since it started. She denied that she had a piece of rubber hose in her hand at the time of the rioting. The two witnesses Edith Jack and Eleanor Jack contradicted her in this respect. We hold this evidence was proper in view of the evidence given by Betty Raue. It seems to us that this claim of error is based upon a misconception of the record and is devoid of merit.
[10] XI. The last claimed error considered is:
"That the court failed to instruct the jury on the accused's theory of the case and failed to give any instructions in relation thereto whatsoever."
Defendant interposed a plea of not guilty to the charge. The court advised the jury of such plea and Instruction No. 2 stated:
"To this Information the defendant has entered a plea of `not guilty,' which plea, in law, is a denial of, and puts in issue, each and every material allegation of the Information."
In Instruction No. 3 the jury was told:
"* * * that the defendant is presumed to be innocent of the crime charged until he is proven guilty of said crime beyond a reasonable doubt; and the burden is upon the State of Iowa to establish each and every material allegation of the Information beyond a reasonable doubt."
The court on its own motion gave instructions which it seems to us fairly cover the case. Defendant requested the court to give twenty-three instructions, none of which touched upon his theory of the case. If he had wished his theory of the case instructed upon, he should have so requested the court. State v. Kendall,200 Iowa 483, 203 N.W. 806. Our latest pronouncement upon this matter is found in State v. Wilson, 234 Iowa 60, 17 N.W.2d 138. Other Iowa cases dealing with the failure of *Page 195
the court to instruct in the absence of request are there set forth.
As we read the record there was no special defense. The plea was not guilty. This court, in State v. Lightfoot, 107 Iowa 344,78 N.W. 41, held that it was not error, in the absence of request, to fail to instruct as to an alibi, although evidence had been introduced tending to show that the defendant was not at such place when the crime was committed, and that he could not have participated in its commission. State v. Porter, 74 Iowa 623,38 N.W. 514; State v. Brandenberger, 151 Iowa 197,130 N.W. 1065, and cases there cited. It seems to have been the theory of the defendant that he was an organizer of the CIO; that he helped working people to organize under the Wagner Act; that he proceeded to do so in an orderly and lawful manner and at all times counseled against the use of force and violence, and that the court should have set out such theory. In argument the defendant states:
"So that if the court anywhere had laid out the theory of the case from the standpoint of the defendant, he would have done his duty, but the court did not do this. Not only did the court disregard the theory on which the case was tried, but it failed in any of the instructions to clearly state to the jury the fact that under the statutes of the state in order to convict the defendant of conspiracy, the evidence could not come from the lips of co-conspirators. But the defendant would have to be connected with the commission of the offense by other and different evidence."
It seems to us that the claim of defendant is that the trial court should have instructed as to certain specified evidence offered by him. We have held that it is not necessary, in the absence of a special request for instructions relating to the bearing of specific evidence, to instruct as to such matters of evidence. State v. Seevers, 108 Iowa 738, 78 N.W. 705. That defendant was a labor organizer and helped workers organize under the law and advised against force and violence would hardly be a special defense, although it might tend to throw some light upon the ultimate question, to wit, the guilt or innocence of the defendant. We hold that this claim of defendant was without merit. State v. Dunne, 234 Iowa 1185, 15 N.W.2d 296. *Page 196
In conclusion we hold that there was ample evidence to sustain the verdict and that there was no reversible error committed in the trial, and the case is affirmed. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430739/ | Complainant is hereinafter designated as plaintiff. The child in question was born June 13, 1948, the son of an unmarried female, Donna Jean Dale, who was fifteen years of age on February 2, 1948. The complaint in this action was filed April 28, 1948, and defendant filed answer on May 17, 1948, denying paternity. The case was assigned for trial on November 8, 1948, at two p.m.
On November 8, 1948, at 10:55 a.m., defendant filed an application asking that the court require the plaintiff to submit herself and her said child to a physician or physicians for the purpose of blood-type tests, such physician or physicians to be designated by the court. This application was brought to the attention of the court at eleven a.m. on the same day the case was assigned for trial, and application denied by the court.
The only medical testimony introduced on trial was that of Dr. Perkins, who was in attendance at the birth of the child on June 13, 1948. While the child was a full-term baby, about the average weight of a boy baby, the physician was unable to state *Page 42
when conception took place, but gave the opinion that the approximate date was September 15, 1947; that the period was variable and might be a few days ahead of the allotted time; that two weeks might be the variation; and that the conception probably occurred during September but not before then.
The contentions of the defendant herein are the errors of the court: First, by refusing defendant's application to the court to order an examination of plaintiff and the child by a physician in order to determine the type of blood of each; second, the court's refusal to require the plaintiff to answer the question as to her willingness to submit to such tests; and third, the insufficiency of plaintiff's evidence.
I. It is not necessary to go into an extended discussion of the value of such tests. The question has not arisen in this state, but has been considered in many cases throughout the country. In a number of states these tests are made admissible by statute, and in the case of Shanks v. State of Maryland, 1945, 185 Md. 437, 45 A.2d 85, in the annotations found in 163 A.L.R. 931, beginning on page 932, there is therein set out quite fully an explanation and history of the tests.
[1] The admissibility of evidence as to blood tests in some cases is held to be discretionary. State v. Damm, 62 S.D. 123, 252 N.W. 7, 104 A.L.R. 430, and on rehearing, 64 S.D. 309, 266 N.W. 667, 104 A.L.R. 441; Arais v. Kalensnikoff, 10 Cal. 2d 428, 74 P.2d 1043, 115 A.L.R. 163, and cases heretofore cited in 163 A.L.R. 931.
The question is: Can the court order a compulsory test? The defendant argues that the court can do so, and that by virtue of rule 132, R.C.P., the court is authorized to order involuntary tests. The rule reads:
"The court may, in its discretion, proceeding as in Rules 126 and 129, order a physician to examine as to any physical or mental condition of a party which is in controversy in the action. The order shall specify the scope, time, place and manner of the examination and name the examiner. The party examined may have any representative present throughout any such examination."
That is substantially rule 35(a) (Title 28 U.S.C. § 3301) of *Page 43
the Federal Rules of Civil Procedure. The principle of personal examination in civil actions is not new in this state. See Schroeder v. Chicago, R.I. P.R. Co., 1877, 47 Iowa 375, but it will be noticed that the rule provides that the court may,in its discretion, order the examination as provided in the rules.
II. Assuming that the view of the defendant as to the application of rule 132 is correct, still by the wording of that rule the court has a discretion in the matter. Therefore, to find error in the court's ruling it would be necessary to find that the court had abused its discretion in making the order it did, but there was no showing by the defendant in the record as to the value and necessity, or at least desirability of the tests. In this case the record is devoid of any evidence whatever showing general scientific recognition of the value of these tests. No expert testimony was introduced. The necessity for some such showing would seem necessary as to those tests whose value is not so generally recognized. Nor was it shown that at the present time the tests are of sufficient general acceptance for general scientific recognition as to be a matter of which the court would take judicial notice. We are not prepared to say that the record presents an abuse of discretion on the part of the trial court. See the recent case of People v. Morse, June 27, 1949, 325 Mich. 270, 38 N.W.2d 322, with cases cited.
The trial court no doubt also considered the lateness of the request for the tests. As stated, the application was not filed until 10:55 of the morning of November 8, when the case had been set for trial at two o'clock that afternoon. The application was brought to the attention of the court only three hours before the time assigned for trial. On this short notice neither the plaintiff could be expected to prepare, nor the court to rule, when the complaint had been on file since April 28 and defendant's answer had been on file since May 17. There had been ample time for whatever preliminary motions were necessary. The ruling of the court which refused the application states the nature of the order requesting, and that defendant states that "such a blood test can be made by a competent expert within the next twenty-four hours." Considering the nature and circumstances of the application we see no reason to find any abuse of discretion. There was no error in the ruling of the court. It necessarily follows that the ruling *Page 44
of the court on the application disposed of the alleged error of the court in sustaining plaintiff's objection to defendant's inquiry of the plaintiff as to her willingness to submit to the tests. The ruling of the court in this respect was without error.
[2] III. An assignment of error made by the defendant is the insufficiency of plaintiff's evidence to establish the allegations of her petition. We find no error here. Plaintiff's testimony consisted of statements of herself, her neighbors, friends, and relatives as to the association between herself and defendant, and evidence of conversations between the defendant and plaintiff's relatives. The plaintiff's testimony was sufficient to take the case to the jury. Of course the statements were disputed and evidence given by the defendant as to plaintiff's own statements in relation to her association with other men, all of which were met with denial on her part. Applying the evidence most favorably to the successful party, the jury could find that the plaintiff's evidence fully established the facts necessary to recovery. She was an unmarried girl during the months of June, July, August and September, 1947; fourteen years of age; was acquainted with the defendant and began keeping steady company with the defendant in the month of September, and during such time as under the testimony conception could have taken place. She saw defendant two or three times a week until November, and she testified that through their association he became the father of her child. There was testimony given which sustained such allegations and there is no error in that respect.
[3] We have reviewed the facts which would support our holding as to sufficiency of evidence, but we also call attention to the fact that the record does not show that this question was submitted to the trial court. Failure to present the question in the lower court would prevent our ruling on it here. For this reason, and on the facts, the defendant's objection is not valid. See Schulte v. Chicago, M. St. P. Ry. Co., 124 Iowa 191, 99 N.W. 714; In re Estate of Larimer,225 Iowa 1067, 283 N.W. 430.
For the reasons given we hold that the cause must be and is affirmed. — Affirmed.
All JUSTICES concur. *Page 45 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430748/ | This action in equity is to reform a warranty deed executed by appellees Jacob A. and Lydia A. Miller on March 1, 1922, conveying certain tracts of land situated in Tama County to appellant. By the express terms of the deed, appellant assumed and agreed to pay an existing mortgage on the land, of $10,000. It is alleged in the petition that this clause *Page 327
was inserted in the deed by mutual mistake, and that, by the terms of the written contract entered into which preceded the execution of the deed, there was an exchange of equities only, and that appellant did not agree to assume and pay the incumbrance. The mortgage in question was executed by Charles E. Sleeter, who, by warranty deed, conveyed the land to the appellee Jacob A. Miller. Sleeter obtained the court's permission, and intervened in this action, alleging that the parties plaintiff and defendant were conspiring and confederating together to secure a reformation of the deed, in order to defeat recovery by him in an action then pending in the district court of Washington County against appellant, to recover the amount of a deficiency judgment rendered on foreclosure of the mortgage, which he had been forced to pay. The right of intervener to be heard in this case is challenged by appellant; but, in view of the conclusion reached on the merits, we have given no consideration to this contention of appellant's, and express no opinion thereon.
The answer filed in the main action by appellees Jacob A. and Lydia A. Miller confesses and admits the allegations of the petition, so that, as between the plaintiff and the defendants, there is no issue in the case. The cause was tried below and is submitted here upon the issues tendered in the petition of intervention. No affirmative evidence was introduced by intervener in support of the allegations of his petition. Manifestly, the confession by the defendants of the allegations of the plaintiff's petition made out a complete case, as against them, in favor of the plaintiff. No further proof, as between them, on this point was necessary. As stated, the intervener alleged connivance and fraud on the part of the other parties to the suit.
Appellant did not, however, rest his case upon the admissions of the answer, but offered proof in support of the allegations of the petition. Appellant testified that the execution of the deed was preceded by negotiations resulting in the execution of a contract in writing which expressed fully and definitely the terms on which each party agreed to an exchange of properties. The contract was not produced, but the real estate agent with whom it was left, testified that, after the transaction in question was closed, many papers kept in his office which appeared to have no further value were destroyed. He had no independent recollection as to what became of the contract in *Page 328
question. The real estate agent referred to represented Miller in the transaction, and fully corroborated the testimony of appellant as to the terms of the trade. Both testified that the exchange was of the equities only, both tracts being heavily incumbered, and that appellant did not agree, nor was it contemplated that he would assume and promise to pay the $10,000 mortgage. This testimony is not contradicted by any witness.
Intervener must, and does, rely wholly upon circumstances which we will presently consider.
The right of the intervener to claim the benefit of, and rely upon, the clause in the deed agreeing to pay the mortgage was no higher than that of his grantor. Crane v. Leclere, 206 Iowa 1270.
Neither of the Millers was a witness upon the trial. It appears that they are nonresidents of the state. After the action was commenced in Washington County by the intervener herein against appellant to recover the amount of the deficiency judgment which he had been compelled to pay, appellant consulted a lawyer residing at Washington, Iowa. The lawyer, who does not appear as counsel in this case, was called as a witness, by appellant. He testified that appellant, at the time he was consulted, stated the details of the transaction with the Millers, and that the agreement between them was for an exchange of equities. Thereupon, the attorney prepared the petition and answer later filed in this action. He testified that they were prepared in reliance upon the statements of appellant. The attorney and appellant then went to Elkhart, Indiana, where the Millers reside, to secure from them acknowledgment of service of the original notice, a written appearance in the case, and the execution and verification of the answer by them. The Millers were not at home. The papers were left with a friend of the Millers', and, upon their return to Elkhart, were duly signed, and the answer verified by Jacob A. Miller was returned to appellant or his attorney. They were delivered by the Washington County lawyer to the present attorneys for appellant at Toledo, and duly filed. A decree was thereupon rendered in favor of appellant, which was later set aside, to permit the filing of the petition of intervention herein. The reason assigned for the haste and the manner in which this action was originally prosecuted was that it was necessary to secure reformation of the deed before trial *Page 329
of the law action in Washington County. No other fact or circumstance in any way tending to discredit or impeach the good faith of appellant in the matter is disclosed by the record, unless stress is to be given to the fact that the clause appeared at all in the deed. Its appearance there is not accounted for. The deed was not written by the real estate agent, nor in his office. It was prepared in a bank in Washington County. It is possible that it may have been copied from some prior instrument. Of course, the assumption clause in the deed is binding upon appellant, unless it was placed therein by mutual mistake. The burden rested upon appellant to establish mutual mistake by evidence of a clear, satisfactory, and convincing character.Rankin v. Taylor, 204 Iowa 384; Hubbard Grain Co. v. WesternGrain Dealers Mut. F. Ins. Co., 199 Iowa 1160; Smith v. Godfrey,200 Iowa 768; Babb v. Herring Motor Co., 190 Iowa 814. The requirements of the rule are fully met in this case.
Some burden in this case rested upon the intervener. When he charged fraud and connivance on the part of the plaintiff and defendant, some duty rested upon him to make proof thereof. The mere charge in the petition of intervention did not make out a prima-facie case, as it seems to us there is almost a total absence of evidence to support the allegations thereof. The mere fact that the defendants admitted the allegations of the petition for reformation of the instrument, in the absence of other facts and circumstances, is of little or no weight in determining the question. They had a right to admit the truth and save costs. Their action was consistent with all of the affirmative testimony in the case.
The finding of the trial court that the petition of plaintiff should be dismissed for want of proof cannot be sustained. The judgment of dismissal must be reversed. The cause will be remanded to the district court for decree reforming the deed in harmony with this opinion. — Reversed and remanded.
ALBERT, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur. *Page 330 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430676/ | This opinion is substituted for an earlier one reported in 13 N.W.2d 705, which was withdrawn and a rehearing granted on September 23, 1944.
This defendant (Clarence Wilson) and his two brothers, Glenn and Albert, were jointly indicted as principals for the murder of Harry Bolden. A separate trial was granted to each. It is the State's theory that Glenn killed Bolden by striking him with a club while Clarence and Albert were present aiding and abetting by holding Bolden. The killing followed a drinking party in which an argument arose that in turn led to the fight. The Glenn Wilson case is reported in 234 Iowa 60, 11 N.W.2d 737, where the evidence upon the trial of Glenn is fully set out.
[1] I. Error is claimed in the overruling of defendant's motion to set aside the indictment based on the exclusion of women from the list of names from which the grand jury was chosen. The clear trend of the decisions is that, so long as no names are placed upon the lists that could not properly be included and no class of persons is excluded to the defendant's prejudice, there is no ground for questioning the indictment. State v. Sangster,196 Iowa 495, 496, 497, 192 N.W. 155, and cases cited; 38 C.J.S. 1003, section 12. Further, the inclination is to hold that only those persons may object to the exclusion of members of a race or class from the grand jury who are *Page 540
members of the race or class which has been excluded. Thus a man may not complain of the unlawful exclusion of women from the grand jury. 24 Am. Jur. 852, 853, section 28; annotation82 L. Ed. 1053, 1064; Petition of Salen, 231 Wis. 489, 286 N.W. 5. See, also, 38 C.J.S. 1003, section 12. We conclude this defendant was not prejudiced by the exclusion of women from the list from which the grand jury was drawn and this assignment of error is without merit.
[2] II. Over defendant's objections, four peace officers testified to oral declarations and a written statement made by Glenn Wilson, not in Clarence's presence, the day after the killing. The written statement contains a recital of the events leading up to the fatal blow and an admission that Glenn struck Bolden on the head with a stick. The State, in an attempt to justify the admission of this evidence, invokes a rule which prevailed at common law that upon the trial of an accessory guilt of the principal could be proven by any evidence which was admissible against the latter. The contention cannot be sustained. The admission of this evidence was prejudicial error. The common-law rule is not applicable here, even without considering section 12895, Code, 1939, which provides that the distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of an offense must be indicted, tried, and punished as principals.
At common law the principal in the first degree was the actual perpetrator of the crime. A principal in the second degree was one who was present, actually or constructively, aiding and abetting the act. 1 Wharton's Criminal Law, Twelfth Ed., 325, 327, 328, sections 240, 245; 40 C.J.S. 836, sections 8, 9; 26 Am.Jur. 197, section 57; 33 Words and Phrases, Perm. Ed., 615. An accessory before the fact, at common law, was not actually or constructively present at the commission of the crime but procured, counseled, or commanded another to commit it. 40 C.J.S. 836, section 9; 1 Words and Phrases, Perm. Ed., 246-248. At common law the confession of the principal was admissible on the trial of the accessory, to prove the commission of the crime by the principal, provided some evidence of the defendant's co-operation was first furnished. IV Wigmore *Page 541
on Evidence, Third Ed., 133, section 1079 (c); Mulligan v. People, 68 Colo. 17, 189 P. 5, 9.
The basis for this rule of evidence was that in order to convict the accessory at common law guilt of the principal must first be proven; guilt of the accessory depended on guilt of the principal; the acquittal of the principal entitled the accessory to his discharge. Indeed, at common law, an accessory could be tried with the principal or separately after the latter's conviction, but he could not, except with his consent, be tried before the principal. State v. Lee, 91 Iowa 499, 501,60 N.W. 119; Gibson v. State, 53 Tex.Crim. Rep., 110 S.W. 41; Rawlins v. State, 124 Ga. 31, 52 S.E. 1, 12 [affirmed201 U.S. 638, 26 S. Ct. 560, 50 L. Ed. 899]; Ex parte Bowen, 25 Fla. 214,6 So. 65; 1 Bishop on Criminal Law, Ninth Ed., 482, section 667; 1 Wharton's Criminal Law, Twelfth Ed., 364, section 277.
But even at common law this defendant was not a mere accessory but a principal. State v. Berger, 121 Iowa 581, 585,96 N.W. 1094; State v. Lee, supra, 91 Iowa 499, 501, 502, 60 N.W. 119; 26 Am. Jur. 197, 198, section 57; 1 Wharton's Criminal Law, Twelfth Ed., 350, 351, 352, section 263; 1 Bishop on Criminal Law, Ninth Ed., 487, section 675. According to the State's theory, he was at common law a principal in the second degree. If he is guilty at all it is because he was present aiding and abetting the commission of the crime. Even at common law his guilt is not dependent on guilt of his brother Glenn. He might be convicted even though Glenn were acquitted. (It was conceded in argument that Glenn was acquitted upon the retrial of his case.) State v. Berger, supra; State v. Lee, supra; Christie v. Commonwealth,193 Ky. 799, 237 S.W. 660, 24 A.L.R. 599, and annotation 603; 14 Am.Jur. 831, section 93; 1 Wharton's Criminal Law, Twelfth Ed., 346, 347, section 260. Thus the reason for the rule of evidence upon which the State relies is not applicable here.
While there is some confusion in the matter because some courts have not kept in mind the distinction between principals in the first and second degree on the one hand, and principal and accessory on the other, the sound rule, and we think the weight of authority, is that a confession by one who was at common law a principal in the first degree is not admissible *Page 542
against one who was present aiding and abetting the commission of the crime (i.e., a principal in the second degree). State v. Beebe, 66 Wn. 463, 120 P. 122, 124, 125, and citations; McCabe v. State, 149 Ark. 585, 233 S.W. 771; 3 Bishop's New Criminal Procedure, Second Ed., 1230, sections 13 (4), 14.
Our conclusion also finds support in decisions under statutes similar to our section 12895 that declarations of the principal after the commission of the offense, in the absence of one who was at common law an accessory before the fact, cannot be shown upon the trial of the latter and that the acquittal of the principal does not bar prosecution of the accessory. State v. Bogue, 52 Kan. 79, 34 P. 410, and citations; People v. Kief,126 N.Y. 661, 27 N.E. 556; Ogden v. State, 12 Wis. 532, 78 Am. Dec. 754; 1 Wharton's Criminal Law, Twelfth Ed., 364, 366, section 277. See, also, State v. Lee, supra, 91 Iowa 499, 501, 502,60 N.W. 119; State v. Smith, 100 Iowa 1, 4, 69 N.W. 269, which cites with approval State v. Bogue, supra, and People v. Kief, supra.
Somewhat in point are the numerous cases holding that declarations of a coconspirator, not in the presence of the accused, after the termination of the conspiracy are inadmissible against the accused. State v. Huckins, 212 Iowa 283, 288,234 N.W. 554, and citations; State v. Archibald, 204 Iowa 406, 409,215 N.W. 258; State v. Crofford, 121 Iowa 395, 403, 96 N.W. 889, and citations; 20 Am. Jur. 427, section 493; 22 C.J.S. 1316, section 770.
We think this case is governed by the rule of State v. Westfall, 49 Iowa 328, 333: "declarations of other persons, jointly charged with an offense, made after the act, are not competent against one who participated in the crime. Such declarations are regarded as any other hearsay testimony. It is just as inadmissible for one purpose as another." See, also, State v. McGuire, 50 Iowa 153; State v. Smith, 54 Iowa 656,7 N.W. 123; State v. Condit, 307 Mo. 393, 270 S.W. 286, 290; State v. Nist, 66 Wn. 55, 118 P. 920, 922, Ann. Cas. 1913C, 409.
The right of this defendant under Code section 13842 to a separate trial presupposes the right to have his guilt or innocence determined upon evidence admissible as against him, free from the prejudicial effect of evidence tending to show only the guilt of his brother Glenn. Otherwise the right of separate *Page 543
trial is of little value. State v. Beebe, supra, 66 Wn. 463,120 P. 122, 124. See State v. Walker, 124 Iowa 414, 423,100 N.W. 354. State v. Brown, 130 Iowa 57, 61, 106 N.W. 379, and State v. Leeper, 199 Iowa 432, 438, 200 N.W. 732, cited by the State, are distinguishable. In each case the defendant was not present at the commission of the crime but was at common law an accessory before the fact and not, as here, a principal. It is not clear from the Brown opinion what declarations of the principal were held to be admissible. They may have been part of the res gestae. At least, we do not think the opinion holds that declarations of the principal after the commission of the offense, not made in the presence of the accessory, are admissible against the latter. The Brown case seems not to have considered the effect of what is now section 12895. In the Leeper case there was evidence of a conspiracy and the acts and declarations of the principal, also a conspirator, held to be admissible were made during the existence and in furtherance of the conspiracy. The cases cited by the State from other jurisdictions also involve principal and accessory and not joint principals.
The State contends this evidence was not prejudicial because, it is said, defendant conceded that his brother Glenn killed Bolden. State v. Chumley, 229 Iowa 579, 294 N.W. 764, and cases there cited are relied upon. The record falls far short of showing such concession. See, on this question, State v. Dunne,234 Iowa 1185, 1188, 15 N.W.2d 296, 298, 299, and cases cited.
The State also argues that Officer Nevins testified Glenn admitted in the presence of this defendant, who remained silent, that he struck Bolden with a club and that the hearsay evidence is therefore without prejudice. While incompetent evidence is frequently held to be nonprejudicial where the same fact is shown by competent evidence, this principle has no application here. The incompetent evidence goes much further than any competent evidence in the record. See State v. Lyda, 129 Wn. 298,225 P. 55, 57.
[3] III. Defendant contends there was evidence that Glenn acted in self-defense and the jury should have been instructed upon that issue. This question may not arise upon a retrial since it is the hearsay evidence which was improperly admitted *Page 544
that defendant claims tends to show Glenn so acted. It is sufficient to say that if upon a retrial it is claimed, and there is evidence, that Glenn acted in self-defense, the jury should be instructed that this defendant would not be guilty if he merely aided and abetted Glenn, and the burden is upon the State to negative self-defense. See State v. Wilson, supra, 234 Iowa 60,87, 11 N.W.2d 737, 751, and cases cited; State v. Sedig,235 Iowa 609, 16 N.W.2d 247, 248, and cases cited. Where the actual perpetrator of the crime acts in self-defense, one who aids and abets him is not criminally responsible. 40 C.J.S. 838, section 9b; 26 Am. Jur. 202, section 63; 14 Am. Jur. 831, 832, section 93; Kelley v. State, 79 Fla. 182, 83 So. 909, 16 A.L.R. 1465; Davis v. State, 107 Tex.Crim. Rep., 296 S.W. 895, 896; Logan v. Commonwealth, 174 Ky. 80, 191 S.W. 676, 679. See, also, State v. Leeper, supra, 199 Iowa 432, 442, 443, 200 N.W. 732.
[4] IV. Defendant offered to prove by different witnesses that the general reputation of deceased in his home town on and prior to the date of the crime, as to being violent and quarrelsome, was bad. The rejection of the offered testimony is assigned as error. This alleged error also may not occur upon a retrial. It is sufficient to say that if upon a retrial it is claimed, and there is evidence, that Glenn acted in self-defense, such testimony as was offered before will be proper and should be received. The reputation of deceased for being violent and quarrelsome bears on who was the aggressor and, if known to Glenn Wilson, also on his reasonable apprehension of danger. State v. Leeper, supra, 199 Iowa 432, 440, 200 N.W. 732; State v. Kelly,196 Iowa 897, 902, 195 N.W. 614; State v. Beird, 118 Iowa 474,92 N.W. 694; 40 C.J.S. 1221-1224, section 272a, b, c; 26 Am. Jur. 389-393, sections 344-346; annotation 64 A.L.R. 1029.
[5] V. Several defense witnesses testified that at the time of the homicide defendant was suffering from arthritis and was at least partly incapacitated. It is claimed the jury could have found he was physically incapable of aiding and abetting Glenn and should have been instructed that in the event of such finding there should be an acquittal. No instruction to this effect was asked and none given. *Page 545
We do not think failure to give such an instruction, in the absence of a request, constitutes reversible error. The jury was correctly instructed, in effect, that before defendant could be convicted it must find he knowingly aided and abetted his brother Glenn to kill Bolden unlawfully and feloniously. Of course, if defendant did not so aid his brother, whether because of physical incapacity or for any other reason, the instructions that were given required an acquittal. It would add little to the instructions to have said, in effect, that if defendant was physically unable to aid Glenn, of course he did not do so and the jury must acquit. In support of our conclusion, see State v. Hall, 233 Iowa 1268, 1272, 11 N.W.2d 481, 482; State v. Dale,225 Iowa 1254, 1257, 282 N.W. 715; State v. Matheson, 220 Iowa 132,138-140, 261 N.W. 787; State v. Christensen, 205 Iowa 849,852, 216 N.W. 710; State v. Dillard, 205 Iowa 430, 431,216 N.W. 610; State v. Kendall, 200 Iowa 483, 487, 203 N.W. 806; State v. Hessenius, 165 Iowa 415, 433, 146 N.W. 58, L.R.A. 1915A, 1078; State v. Lightfoot, 107 Iowa 344, 351, 78 N.W. 41.
[6] VI. Defendant challenges the sufficiency of the evidence. We think it sufficient to sustain the charge of manslaughter. Witnesses testified they saw three white men engaged in an altercation with a colored man outside the home of Rogers. Bolden (deceased) and Rogers were negroes. The Wilsons are white. There is also direct evidence that one of the three white men struck the negro with a club while the other two held him. Bolden died from a blow on his head. One of the witnesses said she heard Bolden ask Rogers to "get them off me." The record sufficiently identifies this defendant as one of the three white men engaged in the fight with the negro, Bolden, in which he was killed.
The three Wilsons, Bolden, Rogers, Ballinger, and McFarlin were the only ones present at the Rogers home at the time of the altercation which took place near a lilac bush where Bolden's body was found immediately afterward. Ballinger was sitting in a rocking chair in the house when the fight occurred. McFarlin was also in or near the house. Ballinger and McFarlin were the only white men present other than the three Wilsons. The record fairly eliminates both Ballinger and McFarlin (as well as Rogers) as participants in the homicide. *Page 546
When the fight ended, Rogers, who was standing near his house, asked McFarlin to help him carry Bolden's body into the house. The three Wilsons were the only persons near Bolden's body when the altercation ended and Rogers and McFarlin picked up the body. When Officer Nevins arrived the three Wilsons were together in or near an automobile in front of the Rogers home. Defendant told the officer "there was a man hurt bad in the house. Glenn said there was a fight and I hit him." The officer then went in the house and saw Bolden dead.
There is evidence that a member of the Iowa State Guard in uniform passed by soon after the fight and inquired what was going on. Defendant replied, "None of your d — d business. Oh, you little boy scout, why don't you go home where you belong? Go on home before I knock your G — d d — d head off." Defendant then pushed the guardsman away with his elbow. Perhaps this incident in itself is entitled to but little weight. However, it seems inconsistent with the thought that defendant was a mere innocent bystander.
In the Glenn Wilson case, 234 Iowa 60, 11 N.W.2d 737, we expressed the opinion that testimony of some of the witnesses in that case to the effect that Bolden was struck several times was incredible and could not be reconciled with the undisputed physical fact that there was but a single bruise upon Bolden's body (his head), evidently made by a single blow. The present case was tried after both Glenn and Albert Wilson were tried. The testimony of at least some of the witnesses in the present case does not correspond, in the respect noted, to their testimony in the Glenn Wilson trial. Here they did not say that more than one blow was struck and their testimony here is not irreconcilable with the physical facts. — Reversed.
All JUSTICES concur. *Page 547 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430677/ | Milton R. Sterner, a resident of Springville, Linn county, Iowa, died testate on March 28, 1930, and his will was admitted to probate on April 16, 1930. Under the provisions of this will his widow received the homestead property and a life estate in other property, and, subject to this life estate, all the remainder of his property was given to his two children, Carolyn M. Sterner and Paul W. Sterner. The son, Paul W. Sterner, was appointed administrator with the will annexed on April 21, 1930, and on the same day he qualified by taking the oath prescribed by law and filing a bond in the sum of $10,000 with Fidelity
Deposit Company of Maryland, as surety. The real estate left by him consisted of some farms and town property. The administrator filed his first report on June 6, 1933, and his second report was filed on October 17, 1934. These reports alleged that Paul W. Sterner and his sister, Carolyn M. Sterner, had advanced from their own funds the sum of $8,307.23 for the purpose of paying bills and notes owing by the estate, and asked credit for this amount. On an ex parte hearing, an interlocutory order was entered on June 8, 1933, approving the first report and allowing this claim as a proper charge against the estate. No order of approval appears to have been entered on the second report.
On October 22, 1932, L.A. Andrew, superintendent of banking of the state of Iowa, as receiver of Springville Savings Bank of Springville, Iowa, filed a claim against the estate in three counts. The first count asked for an allowance of $1,700 on a stock assessment on stock in the bank owned by M.R. Sterner at the time of his death. The second count alleged the execution by M.R. Sterner, together with other directors of the bank, of two separate agreements guaranteeing the payment of certain bills receivable in the bank. One of these agreements covered such bills receivable in the sum of $32,416.46, and the other covered such bills receivable in the sum of $29,149.46. The *Page 620
third count alleged that the decedent, M.R. Sterner, and one Chris Jenson had jointly leased a farm in Linn county from the bank, and that there was due and owing the claimant thereon the sum of $10,250.
After Sterner, administrator with the will annexed, had filed his second report on October 17, 1934, D.W. Bates, who was the successor of L.A. Andrew, as superintendent of banking of the state of Iowa and as receiver of the Springville Savings Bank of Springville, Iowa, on November 3, 1934, filed objections to the reports of said administrator, and asked to have him removed. Ground 81 of said objections alleged, in substance, that the purpose of the administrator in having said claim allowed was to secure the assets to himself and his sister and thus defeat rights of other creditors; and ground 82 alleged, in substance, that the second report of the administrator showed that he had paid to himself and his sister the sum of $1,542.18 to apply upon their alleged claim of $8,307.23, and that such payment to the administrator and his sister constituted a preference, it appearing from the records of the estate that court costs, attorney's fees, and taxes upon the property of the estate were unpaid, and there are other claims of the same class which have not been paid. Hearing was had on these objections, and on December 3, 1935, the court entered its order removing Paul W. Sterner, as administrator, and appointing in his place J.U. Yessler, administrator with the will annexed. This order further found and adjudged that Paul W. Sterner had appropriated and converted to his own use property belonging to the estate in the value of $9,915.09, and ordered that this sum, with interest, be paid to the newly appointed administrator on or before December 20, 1935.
Paul W. Sterner, administrator, failed to comply with the order of court, and, on January 8, 1936, J.U. Yessler, the newly appointed administrator with the will annexed, filed an application under sections 11984 and 11985, Code of 1935, asking for judgment on the bond against said Paul W. Sterner and Fidelity Deposit Company of Maryland, surety on the bond, in the sum of $10,000, the full amount of the bond, and hearing on such application was fixed by the court for the 20th day of January, 1936. Paul W. Sterner, administrator, and the bonding company appeared and filed objections to such application. Hearing was had on the application and the objections thereto, *Page 621
and, on March 4, 1936, the court entered an order finding that said Paul W. Sterner had failed to comply with the court's ruling and order made on December 3, 1935, and pay to J.U. Yessler, said administrator, the sum of $9,915.09 and interest from July 1, 1931, or any portion thereof; and that the total amount of said principal and interest at the time of entering said order amounted to $12,627.96. The court entered judgment in favor of Yessler, administrator, and against Sterner and the bonding company, in the total sum of $10,000, with interest thereon from the 20th day of December, 1935, without prejudice to the estate to collect from Sterner the balance of said sum over and above the amount of the judgment rendered on the bond.
On May 5, 1936, the Fidelity Deposit Company of Maryland filed objections to the allowance of the claim filed by the receiver, and, on the same day, Paul W. Sterner and Carolyn M. Sterner filed similar objections. On May 28, 1936, J.U. Yessler, the newly appointed administrator with the will annexed, joined in the objections to the allowance of the claim of the receiver filed by the bonding company, and added other grounds thereto. Hearing was had on said claim and the objections thereto, and, on the 17th day of September, 1936, at the close of claimant's evidence, the objectors filed a motion asking the court "to not permit the filing of said claims other than the claim for $1,700.00 bank assessment" for six reasons therein enumerated, all of which were based on the failure to file the claim within twelve months after giving of notice of his appointment by the administrator. The court entered an order sustaining this motion. Bates, receiver, has appealed from this order, and, as we shall later see, the action of the trial court, in sustaining this motion and holding that the claim of the receiver should not be allowed to be filed, presents the only questions which it will be necessary for us to consider and determine on this appeal.
On the 19th day of September, 1936, the trial court entered an order overruling objections numbered 81 and 82, of D.W. Bates, receiver, to the allowance of the credit of $8,377.23 claimed to Paul W. Sterner, administrator, in his first and second reports; said order further established and adjudicated that said sum was a just claim in favor of said Paul W. Sterner and Carolyn M. Sterner, for which credit properly had been *Page 622
given; and confirmed the allowance thereof. Bates, receiver, appealed from this order, and J.U. Yessler, administrator with the will annexed, also took a separate appeal therefrom.
Following the entry of the last order above referred to, Paul W. Sterner, both in his individual capacity and as administrator, and Fidelity Deposit Company of Maryland, on September 22, 1936, filed a petition for a new trial, in which they asked the court to set aside the order and judgment entered on March 4, 1936, and the ruling and order entered on December 3, 1935. To this petition, both Yessler, administrator with the will annexed, and Bates, receiver, filed answers opposing the granting of such petition. Hearing was had and at the close thereof, the court, on February 15, 1937, entered an order setting aside the order and judgment of March 4, 1936, and the ruling and order of December 3, 1935. Later, on March 27, 1937, the court, on its own motion, entered an order which expunged the order of February 15, 1937, and in lieu thereof entered an order sustaining "that portion of the petition for new trial, which asks that the judgment entered by the Court on the 4th day of March, 1936, in said cause, against Paul W. Sterner, administrator with the will annexed of the estate of Milton R. Sterner, deceased, and Fidelity and Deposit Company of Maryland, surety on the bond of said administrator, be cancelled, set aside and held for naught. Said petition for new trial is otherwise overruled," etc. From this substituted order entered March 27, 1937, setting aside the judgment of March 4, 1935, and granting new trial, Bates, receiver, appealed, and J.U. Yessler, administrator with the will annexed, also appealed therefrom.
On this appeal, therefore, we have three orders or judgments of the trial court from which Bates, receiver, has appealed, and, as to two of these, Yessler, administrator, has also appealed. These appeals have been argued and submitted separately in this court — the appeal of Bates, receiver, being cause No. 44073, and the appeal of Yessler, administrator, being cause No. 44074, in this court. Leaving out of consideration the chronological order of the judgments and orders appealed from, and following the order of the errors alleged and relied on for reversal, we have for consideration, in this appeal, the following alleged errors of the trial court: first, error in entering the order of March 27, 1937, setting aside the order and judgment of March 4, 1936, and granting new trial; second, error in entering the order of *Page 623
September 19, 1936, which overruled objections 81 and 82 of Bates, receiver, to first and second reports of Sterner, administrator, allowed claim of Sterner and his sister, and confirmed and established said claim; and, third, error in entering the order of September 17, 1936, refusing to allow the claim of Bates, receiver, based upon the guaranty agreement of Milton R. Sterner covering bills receivable of Springville Savings Bank. As already stated, J.U. Yessler, administrator with the will annexed, also appealed separately from the orders constituting the basis of the first and second allegations of error set out in this appeal. The appeal taken by him was submitted to this court in November, 1937, at the same period at which this appeal was submitted, and opinion in that appeal was filed herein January 18, 1938, and is reported in 224 Iowa 605,277 N.W. 366. That opinion fully considered and reversed the judgments and orders of the district court of March 27, 1937, and September 19, 1936, which are the basis of the first and second errors alleged and relied upon by the appellant for reversal in this appeal. Following and adopting the holdings of this court in that opinion, and without further discussion, we hold that, in entering the orders of March 27, 1937, and September 19, 1936, the trial court committed error, and that said orders are reversed.
The only matter remaining for consideration is, therefore, the correctness of the trial court's ruling in sustaining the motion of the objectors that Bates, receiver, be not permitted to file his claims. As already stated, this claim was originally in three counts. By agreement of parties, the claim in count 1 for $1,700, growing out of stock assessment, was allowed; that part of count 2, alleging guaranty agreement covering bills receivable, dated August 15, 1923, was withdrawn; and count 3, claiming rentals due under lease of farm, was also withdrawn. The only part of the claim for consideration here is that based upon the alleged guaranty agreement covering bills receivable, entered into October 21, 1927. From the evidence introduced it appears that some of the bills receivable covered by this agreement were paid prior to the death of Milton R. Sterner; that others were paid between the time of his death and the filing of the claim by the receiver; that still others were paid after the filing of the claim by the receiver, but before hearing; and that at the time the order was entered, from which the *Page 624
appeal here involved was taken, there was less than $10,000 involved in the bills receivable which had not then been paid. The grounds upon which the motion of the objectors asked that the claim be not permitted to be filed, and upon which the argument on this appeal is centered, are, in substance, that the evidence shows that the claim here involved was not filed within a year from the giving of notice of the appointment of the executor; that the claim is of such a nature that it should have been filed within such year; and that the claimant has failed to show equitable circumstances relieving him from the bar of the statute requiring such claim to be filed within one year.
[1] The appellant contends that the claim is not barred by the statute, because it is a contingent, undetermined claim, which did not arise during the lifetime of decedent nor until after the statute of limitations for filing claims against the estate had run, and that it need not be filed within the one year period, because the contract upon which it was based expressly imposed liability thereunder on decedent's legal representatives and heirs, as well as on decedent himself. Appellant seeks to distinguish the contract involved in this appeal from a simple contract of guaranty, under which the guarantor binds only himself, by calling attention to the fact that, in the contract here involved, the obligation was not confined to the maker of the contract himself, but bound his "heirs, executors, administrators, trustees, receivers and/or assigns." In support of this contention appellant cites Baker v. Baker, 220 Iowa 1216,264 N.W. 116, 103 A.L.R. 995; Security Fire Insurance Co. v. Hansen, 104 Iowa 264, 73 N.W. 596; and Royal Ins. Co. v. Davies,40 Iowa 469, 20 Am. Rep. 581. In neither the Baker case nor the Security Fire Insurance Company case, however, was there involved a claim against the estate of a decedent. In both of these cases the action was to enforce a contract against the heirs of the decedent, and not against his estate. In the Royal Insurance Company case, one Davies had signed an indemnifying bond for one Kidder, who had been appointed an agent of the insurance company. The bond bound the surety, his "heirs, executors and administrators." The surety, Davies, died before the termination of the contract of agency. Thereafter, the contract of agency was terminated, and it was claimed by the insurance company that the agent had failed to settle for certain sums of money received by him. The opinion states some of the *Page 625
allegations of the petition, but there is nothing to indicate that the action was to enforce against the estate, instead of to recover against an heir. The defense was that liability on the bond ceased with the death of Davies, the surety, and the trial court so held. In reversing the case, this court said:
"The terms of the bond continue the liability of the sureties as long as Kidder should act as agent of the company and this liability likewise by the terms of the bond, extends to the heirs and legal representatives of the sureties. They are bound by as clear and unmistakeable language as that which binds the sureties personally."
We find nothing in any of these cases holding that, where a contract of a decedent is made binding upon his heirs, executors and administrators, such contract can be enforced against his estate without filing a claim in the manner provided by law and within the period of limitation fixed by statute.
The appellees, on the other hand, contend that the contract, under which appellant seeks to recover, is such that a claim based on it must be filed against the estate within one year from the giving of notice of his appointment by the administrator, as provided by section 11972 of the Code. In support of this contention appellees cite Nichols v. Harsh, 202 Iowa 117,209 N.W. 297; Chicago Northwestern Ry. Co. v. Moss, 210 Iowa 491,231 N.W. 344, 71 A.L.R. 936; State ex rel. Trust Company v. Fosseen, Probate Judge, 192 Minn. 108, 255 N.W. 816, 94 A.L.R. 1149, and other authorities. The argument based upon these authorities is, that the contract here involved, being an absolute agreement and creating a binding obligation that the bills receivable therein referred to would be paid, imposed a liability on the decedent, Sterner, from the time of its execution, and that such liability, being in existence at the time of Sterner's death, could only be enforced against his estate by filing a claim as required by statute. We think the authorities cited by the appellees support this contention.
But, the appellant further contends that, conceding the claim to be such as should have been filed within the twelve months' period, the evidence shows peculiar circumstances which, under the provisions of the statute itself, entitle him to equitable relief. The determination of this question requires a consideration of the evidence and of the statute here involved. *Page 626
Section 11972, as it appears in Codes 1927 to 1935, inclusive, is as follows:
"All claims of the fourth of the above classes, not filed and allowed, or if filed and notice thereof, as hereinbefore provided, is not served within twelve months from the giving of the notice aforesaid, will be barred, except as to actions against decedent pending in the district or supreme court at the time of his death, or unless peculiar circumstances entitle the claimant to equitable relief."
[2] It is apparent from the language of this section that the bar against claims not filed within twelve months from the date of giving notice by the administrator is not absolute, and that a claimant may be relieved from such bar by showing peculiar circumstances which entitle him to equitable relief. Briefly stated, the peculiar circumstances upon which the appellant relies are substantially as follows: The contract upon which liability is here sought to be enforced was executed on the 21st day of October, 1927, approximately two and one-half years before the death of Sterner, on March 28, 1930. Sterner and other signers of the contract were directors of the bank. The contract was not signed by them in their official capacity as directors, but as individuals. The contract guaranteed the payment, on or before one year from the date of its execution, of each and every bill receivable enumerated on the back thereof. So far as the record shows, the business of the bank from the date of the signing of this contract until the death of Sterner was conducted by its officers and board of directors, and continued to be so conducted thereafter until the appointment of a receiver of the bank on July 15, 1932. Prior to that time, from 1920 to 1931, Paul W. Sterner had been a bookkeeper in the bank. The evidence shows that he was at one time also the cashier of the bank, but we have been unable to determine from the record during what period he acted as cashier, although it might be reasonable to infer that it was during the period following that in which he acted as bookkeeper. It was the duty of Paul W. Sterner and the other directors and officers to look after the interests of the bank, and this required that they use diligence in collecting obligations owing to the bank, so that, if reasonably possible, its business might be conducted with safety to its depositors and creditors and profit to the *Page 627
stockholders, but, in any event, so that, if the business of the bank should result in loss, the depositors and creditors, as well as the stockholders, would not suffer because of the failure of the officers and directors to collect such obligations. It was, therefore, the duty of Paul W. Sterner and other officers and directors of the bank to see that the bills receivable covered by the guaranty agreement of Sterner and the other guarantors were paid by the makers of such bills or the signers of the guaranty agreement. It was also the duty of Paul W. Sterner and the other officers and directors of the bank, in case any of the makers of the bills receivable or signers of the guaranty agreement died, to see that a proper claim was filed against the estate of such deceased person. It is apparent that the filing of such a claim against the estate of Milton R. Sterner would have been against the personal interests of Paul W. Sterner and his sister, as legatees and devisees under their father's will, because whatever would be received by them eventually from the estate would be diminished by any amount required to be paid by the estate upon the claim of the bank.
As to the other signers of the guaranty agreement also, we think there was a conflict between their personal interests and official duty as directors of the bank. It is quite probable that, if a claim based on the guaranty contract had been filed by the bank against the Sterner estate, stockholders, depositors and creditors of the bank would have become aware of the existence of the contract and the doubtful character of the bills receivable covered by it, and that the publicity given to these facts would result in demands being made that such bills receivable be paid either by the makers thereof or by the guarantors, including the other directors. Not only was no claim filed by its officers and directors in behalf of the bank, but there is ample in the record to indicate that, during the period from the execution of the contract in October, 1927, to the appointment of the receiver in July, 1932, there was a deliberate attempt on the part of those in charge of the bank's affairs to conceal, if not to falsify, the records by which the indebtedness owing to the bank on the bills receivable covered by the guaranty agreement should have been disclosed. While, perhaps, not altogether excusing the failure of the examiners for the state banking department to follow up the execution of the guaranty contract by seeing that it was enforced, we are not inclined to believe *Page 628
that the bank examiners would have overlooked the existence of the contract or would have failed to take any action in regard to it, from the time it was executed until the time the receiver was appointed, if its existence and the condition of the indebtedness guaranteed by it could have been discovered readily from an examination of the bank's records. The evidence discloses that, at the time the receiver was appointed, the bills receivable covered by the guaranty contract were not found in the bank; that, although a thorough search was made, such bills receivable were never discovered by the receiver; and that it was only after a very exhaustive examination and audit of the bank's affairs had been made that the receiver was able to discover that some of such bills receivable had been paid and that others were still unpaid.
[3] Certainly, the condition of the books and records at the time the receiver was appointed was sufficient to excuse his delay in filing claim after his appointment; and, even if the state banking department may be said to be at fault in failing to have kept in touch with what was being done in regard to the guaranty agreement after its execution, and in failing to see that a claim was filed under such contract within one year from the appointment of the administrator of the Milton R. Sterner estate, a matter which we do not decide, this does not change the fact that it was the duty of Paul W. Sterner and the other officers and directors of the bank to see that such claim was filed. While the bank is a legal entity and, as such, may be bound by the same rules of law as apply to human beings, it does not follow that it is not entitled to the application of equitable principles, where a human being might be estopped by his own conduct. Being a legal entity only, the bank could not act except through human agencies, that is, through its officers and directors. The law imposed upon such officers and directors the duty to act for the benefit of the bank and, as a result of their failure to act in this case, the bank, and through it the depositors, creditors and, perhaps, stockholders are threatened with a loss because of the failure of such officers and directors, to perform their duty. Not only that, but the same officers and directors, through whose failure to perform their duty the bank, and through it the depositors, creditors and, perhaps, stockholders will be called upon to suffer a loss, are themselves, in their individual capacities as signers of *Page 629
the guaranty contract, relieved of a liability which should be theirs and which is thus imposed upon the bank.
It is well settled that, in determining whether peculiar circumstances exist entitling a claimant to relief from the bar of the statute, this provision of the statute must be liberally construed. Nichols v. Harsh, 202 Iowa 117, 209 N.W. 297; Simpson v. Burnham, Admx., 209 Iowa 1108, 229 N.W. 679; Chicago
Northwestern Ry. Co. v. Moss, Admr., 210 Iowa 491, 231 N.W. 344, 71 A.L.R. 936; Anthony v. Wagner, 216 Iowa 571, 246 N.W. 748; Simpson College v. Drake, Admr., 219 Iowa 30, 257 N.W. 443. We think the circumstances disclosed by the evidence in this case are, at least, peculiar, if, indeed, they should not be characterized by language somewhat stronger; and that, following the liberal construction which should be given to this provision of the statute, these peculiar circumstances are such as to entitle the claimant to be relieved from the provision of the statute which required the claim to be filed within one year from the giving of notice of his appointment by the administrator. In so holding, we are, of course, confining our decision to the equitable issue, as to whether there are peculiar circumstances sufficient to entitle the claimant to relief, and we must not be understood as establishing the claim itself upon its merits.
For the reasons stated in the opinion, the three orders and judgments of the trial court involved in this appeal must be, and they are hereby, reversed. — Reversed.
STIGER, C.J., and KINTZINGER, SAGER, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430679/ | The appellant is a corporation, organized under the laws of this state, and engaged in the retail business of marketing groceries, meats, and food commodities in the city of Des Moines. It is not engaged in the occupation of operating 1. DRUGGISTS: a pharmacy or drug store, and does not have in sale of its employ or among its officers any licensed aspirin: pharmacists. It is admitted or established that, injunction. while so engaged in its general business of operating a grocery store and meat market, the appellant did, at divers times in the year 1928, engage in keeping for sale in said store *Page 569
the drug commonly known as aspirin. The question involved in the case is whether or not such keeping for sale and selling of aspirin by the appellant constituted a violation of the statutes of this state, so that the same may be enjoined.
Section 2519 of the Code, 1927, provides as follows:
"Any person engaging in any business or in the practice of any profession for which a license is required by this title without such license may be restrained by permanent injunction."
The so-called Practice Acts are embodied under Title VIII of the Code of 1927. Chapter 123, included in said Practice Acts, refers to the practice of pharmacy. Section 2578 is, in part, as follows:
"For the purpose of this title the following classes of persons shall be deemed to be engaged in the practice of pharmacy:
"1. Persons who engage in the business of selling, or offering or exposing for sale, drugs and medicines at retail."
Section 2579 provides:
"The preceding section shall not be construed to include the following classes: * * *
"4. Persons who sell, offer or expose for sale proprietary medicines or domestic remedies which are not in themselves poisonous or in violation of the law relative to intoxicating liquors."
Section 2580 is as follows:
"For the purposes of this chapter:
"1. `Drugs and medicines' shall include all substances and preparations for internal or external use recognized in the United States Pharmacopœia or National Formulary, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or animals."
I. The first question for our determination is whether or not, under the record in this case, the appellant was engaged in the "business" of selling or offering or exposing a drug for sale. One may properly be said to be engaged in a 2. WORDS AND business even though it is not his exclusive PHRASES: occupation. One is engaged in a business with "engaged in regard to any particular article when he has business." such *Page 570
article for sale to any person who may apply for it for the seller's profit. The question is not determined by the number of sales that may be made. The word "business" has a variety of meanings, and is applied in a variety of ways. See 1 Words
Phrases (2d Ser.) 531 et seq.
We think the record brings the appellant within the terms and provisions of the statute, as being engaged in the business of selling aspirin. As bearing on the question, see Harris v. State,50 Ala. 127; United States v. Rennecke, 28 Fed. 847.
II. It is contended that aspirin is not a drug, within the meaning of Paragraph 1 of Section 2578 of the Code. The expert evidence in the case showed that it is a drug. It is classified as a coal tar product. It is a remedial agent, used in the treatment of disease. It is described in the record as "a potent, active drug." The evidence is amply sufficient to establish the fact that aspirin is a drug, with decided physiological properties, and is used to cure, mitigate, or prevent disease.
III. It is contended that aspirin comes within the exception of Paragraph 4 of Section 2579 of the Code, in that it is a proprietary medicine, and hence may be sold by the appellant as such. An expert witness testified in this case that "a proprietary medicine is a medicine which has a secret formula."
In Ferguson v. Arthur, 117 U.S. 482 (29 L. Ed. 979), the court said:
"`Proprietary' is defined thus: In the Imperial Dictionary, `belonging to ownership, as, proprietary rights;' in Webster, `belonging, or pertaining, to a proprietor,' `proprietor' being defined, `one who has the legal right or exclusive title to anything, whether in possession or not, — an owner;' in Worcester, `relating to a certain owner or proprietor.'"
In State v. Zotalis, 172 Minn. 132 (214 N.W. 766), the Supreme Court of Minnesota said:
"Aspirin is a coal tar product commonly kept in drug stores, and is used and sold for medicinal purposes. It is a drug or medicine, within the statute. It is not a proprietary or patent medicine."
The record shows that aspirin was originally a proprietary medicine. It was discovered in Germany, its formula was secret, *Page 571
and the product was originally made only by the possessor of this secret formula. However, the formula has been discovered, and aspirin is now made by different pharmaceutical and chemical manufacturers, and it has entirely ceased to be a proprietary medicine. Therefore it does not come within the exception noted in the statute referring to proprietary medicines.
IV. It is contended that appellant can only be held under Code Section 2580, and that said statute attempts to define drugs and medicines, and in so doing includes all substances and preparations for internal or external use 3. CONSTITUTIO- recognized in the United States Pharmacopœia or NAL LAW: National Formulary. For convenience, we shall personal, refer to these books as U.S.P. and N.F. The civil, and claim of appellant is that a very large number political of substances are listed in the U.S.P. and N.F. rights: that are of common and domestic use, and are class not harmful or poisonous, and that the said legislation: statute attempts to limit the business of sale selling all such articles to pharmacists and of drugs and hence is unconstitutional. We do not deem it medicines. necessary to pass upon the question as to whether or not Section 2580 is unconstitutional. We expressly reserve any pronouncement upon said question. Even if said section is unconstitutional, it in no way affects the appellant's rights in this action. In this suit it is sought to enjoin the appellant from engaging in the business of selling a substance which is clearly established, under the record, to be in fact a drug. Under the express provisions of Section 2578, Paragraph 1, a person is deemed to be engaged in the practice of pharmacy who engages in the business of selling, or offering or exposing for sale, drugs. This, the record shows, the appellant did. He therefore was subject to injunction to restrain him from engaging in such business. Even if Section 2580 were unconstitutional, it would not necessarily follow that the appellant would not be subject to injunction for engaging in the business of selling what was in fact a drug, under Section 2578. We do not deem it essential to the determination of the question involved in this appeal for us to pass upon the constitutionality of Section 2580, and therefore we expressly reserve any pronouncement in relation thereto.
We hold that the record establishes the fact that the appellant was engaged in the business of selling, or offering or exposing *Page 572
for sale, aspirin, which is a drug, and which is not a proprietary medicine. Therefore he was subject to an injunction restraining him from engaging in said business.
It is conceded by the appellee that the terms of the injunction are too broad, in enjoining the appellant from doing any acts prohibited by Title VIII of the Code of 1927. The decree should be modified by eliminating therefrom the following clause: "And that he further be enjoined from doing or continuing to do any acts prohibited by Title VIII of the Code of 1927 and amendments thereto." As so modified, the decree of the district court will be, and it is, affirmed. — Modified and affirmed.
ALBERT, C.J., and EVANS, STEVENS, De GRAFF, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |