Beneficial Finance Co. of Waterloo v. Lamos, 53928

• Decision Date: 02 September 1970
• Docket Number: No. 53928,53928
• Citation: 179 N.W.2d 573
• Parties: BENEFICIAL FINANCE COMPANY OF WATERLOO, Appellee, v. James J. LAMOS and Nancy L. Lamos, Appellants.
• Court: Iowa Supreme Court

Page 573

179 N.W.2d 573

BENEFICIAL FINANCE COMPANY OF WATERLOO, Appellee, v. James J. LAMOS and Nancy L. Lamos, Appellants.

No. 53928.

Supreme Court of Iowa.

Sept. 2, 1970.

Robert C. Oberbillig, Des Moines, and Donald H. Canning, Waterloo, for appellants.

Jones, Hoffmann & Davison, Des Moines, and E. D. McCoy, Waterloo, for appellee.

MASON, Justice.

James J. Lamos and his wife Nancy L. appeal from an adverse judgment rendered in a law action tried to the court. Plaintiff filed petition in the Waterloo Municipal Court alleging as a basis for recovery defendants' execution and delivery of their promissory note in writing in the principal amount of $500, plaintiff's ownership of the note and defendants' nonpayment of a balance due in the amount of $190.15. Judgment for this amount plus interest and cost was demanded. When defendants answered and filed counterclaim seeking damages in excess of the jurisdiction of the court for mental anguish, malicious harassment and invasion of their privacy, the case was transferred to the Black Hawk District Court. Rule 364, Rules of Civil Procedure.

The trial court awarded plaintiff judgment and dismissed defendants' counterclaim seeking $15,000 for credit harassment.

In two of seven errors assigned defendants contend the court abused its discretion in denying a jury trial and overruling objections to plaintiff's Certificate of Readiness. The remaining five involve the court's findings.

I. November 27, 1963 Lamos and his wife borrowed $500 from Beneficial Finance Company of Waterloo, a financial organization licensed at the time for small loans under chapter 536 Code, 1962 and after adoption of chapter 536A for industrial loans. They executed a promissory note payable in 24 equal monthly installments of $27.60, interest having been calculated in advance and included in the monthly payments. This note is the basis for plaintiff's action and is referred to in the pleadings and record as exhibit A. A wage assignment was taken from Mrs. Lamos since her husband was self-employed.

Payments on the note were made with some interruption through February 1965. May 7, 1965 Mr. Lamos filed petition in bankruptcy listing the obligation owed plaintiff. At the time, $301.98 was owed on the note. His discharge was filed May 3, 1966. Mrs. Lamos was not a party to the bankruptcy proceedings.

In May 1965 plaintiff obtained Mrs. Lamos's paycheck by virtue of the assignment. In an effort to get his wife's paycheck released Mr. Lamos went to plaintiff's office May 22. As a result, the amount of her check less one or two payments was returned to the husband. Lamos then executed a separate promise to pay the unpaid balance of $301.98 with interest from March 1, 1965 but was not given a copy of this agreement. The instrument is referred to in the record as exhibit B.

When he signed the reaffirmation agreement and again in December Lamos and plaintiff's office manager negotiated an oral agreement for Lamos to pay $12 a month instead of $27.60 as provided in the original note. He continued to make payments until July 19, 1968.

Plaintiff's records indicate Lamos had paid a total of $332 since the bankruptcy. He contends this amount should have been applied in reduction of principal since his oral agreement was for the payment of principal only and no interest.

Other facts will be mentioned as necessary in considering defendants' contentions.

II. Defendants argue the court abused its discretion in denying a substantive right, the right of trial by jury, in overruling their motion for jury trial. They contend the case should be remanded, if for no other reason, to enable them to have a jury trial on issue presented. We do not agree.

Defendants had demanded a jury trial as part of the caption of answer and counterclaim and repeated the demand as the last sentence in the prayer in Division III of its counterclaim.

December 2, 1968 a 'Court Call' was published by the Black Hawk Clerk listing jury and nonjury cases to be assigned for trial that month. The present case was not included. December 13 defendants received a copy of a written order setting the case for December 17 as a nonjury matter. That day defendants filed motion for jury trial and additional time to prepare for trial. The court overruled motion for jury trial but set it as a nonjury trial for December 30.

Rule 177, R.C.P., provides in part:

'(a) Jury trial is waived if not demanded according to this rule; * * *.

'(b) A party desiring jury trial of an issue must make written demand therefor by filing a separate instrument clearly designating such demand not later than ten days after the last pleading directed to that issue. A copy thereof must be filed for each adverse party appearing and it shall be mailed or delivered by the clerk in the manner provided by rule 82.

'* * * (d) Notwithstanding the failure of a party to demand a jury in an action in which such demand might have been made of right, the court, in its discretion on motion and for good cause shown, but not ex parte, and upon such terms as the court prescribes, may order a trial by jury of any or all issues.'

Defendants concede they did not comply with subparagraph (b) of this rule by filing a separate instrument in making their written demand. However, they maintain the fact their attorney was not familiar with the change made in this subparagraph in 1961 constituted the good cause necessary under subparagraph (d) for exercise of the court's discretion. Subparagraph (b) had been amended effective July 4, 1961.

A similar contention was rejected in Morris Plan Leasing Co. v. Bingham F. and Gr. Co., 259 Iowa 404, 409--410, 143 N.W.2d 404, 408--409 where demand for jury trial followed the prayer of defendant's answer. We held demand was not in compliance with the rule. Defendants do not persuade us our holding there should be overruled.

In Katcher v. Heidenwirth, 254 Iowa 454, 462, 118 N.W.2d 52, 56, this court considered the words 'for good cause shown' in subparagraph (d) of this rule. What was said there is appropriate here without repeating.

We find no abuse of discretion here.

III. Defendant further contend the trial court abused its discretion November 12 in overruling their objections to plaintiff's Certificate of Readiness.

Plaintiff's petition was filed in September 1968. October 17 defendant answered and filed counterclaim. October 21 plaintiff filed its answer and reply. The same day it filed a Certificate of Readiness certifying that: (1) issues were joined and the case was ready for trial in all respects; (2) necessary use of discovery rules had been completed and taking of depositions concluded; (3) the adverse party had had a reasonable time to obtain inspections, examinations and reports under rules 131 to 133; and (4) sufficient time had elapsed to afford the adverse party reasonable opportunity to be ready for trial. Assignment for trial by court was requested. Remaining matters certified to are not involved in this appeal.

One week later defendants filed objections to plaintiff's Certificate controverting each of these contentions and asserting pretrial conference had not been held.

Defendants argue they were denied opportunity to properly prepare their case in view of the practice in Black Hawk County and the Tenth Judicial District denying further discovery once a Certificate of Readiness has been served and becomes effective. They point out that until plaintiff's reply and answer to their counterclaim was filed October 21 it was impossible to know what issue there might be on which they might desire to exercise discovery; exhibit B, the reaffirmation signed by James Lamos May 22, 1965 attached to plaintiff's reply and answer substantially changed plaintiff's theory of Lamos' liability.

However, no showing is made in the record that under the rules of the Black Hawk District Court discovery is foreclosed when the Certificate of Readiness is filed. Defendants did not actually attempt to exercise any right of discovery. Had they at any time following filing of Certificate requested depositions or documents from plaintiff and been prohibited right to make discovery there would be a justiciable issue before us; but such is not the case.

As previously noted, trial di not commence until December 30, 1968. Defendants had ample opportunity to attempt discovery after plaintiff's Certificate of Readiness was filed.

The matter was directed to the trial court's discretion. It not being made to appear that this discretion was abused, we will not interfere.

IV. As stated, defendants attack the trial court's findings in their remaining assignments of error.

In a law action tried to the court as here, our review is not de novo but only on errors assigned. Under this limited extent of review the findings of fact by the trial court have the effect of a special verdict and are equivalent to a jury verdict. If supported by substantial evidence and justified as a matter of law, the judgment will not be disturbed on appeal. Rule 344(f)(1), R.C.P. Stated in other words, in a law action tried to the court its findings of fact having adequate evidentiary support shall not be set aside unless induced by an erroneous view of law. It follows, the rule does not preclude inquiry into the question whether, conceding the truth of a finding of fact, the trial court applied erroneous rules of law which materially affect the decision. Alsco Iowa, Inc. v. Jackson, 254 Iowa 837, 840, 118 N.W.2d 565, 567; France v. Benter, 256 Iowa 534, 536, 128 N.W.2d 268, 270. We may also interfee when such findings are undisputed or no conflicting inferences may be drawn from them.

V. Defendants contend in their third and fourth assignments the court erred in finding the November 27, 1963 obligation was enforceable even though plaintiff had not complied with either chapter 536 or 536A when it failed to furnish Lamos a copy of the agreement he signed May 22, 1965 or receipts...