Brown v. Rose

• Decision Date: 23 October 1880
• Citation: 55 Iowa 734,7 N.W. 133
• Parties: BROWN v. ROSE.
• Court: Iowa Supreme Court

55 Iowa 734

7 N.W. 133

BROWN

v.ROSE.

Supreme Court of Iowa.

Filed October 23, 1880.

Appeal from Madison district court.

This is an action for the possession of real estate. The defendant admits that the plaintiff is the owner of the legal title to the land described, but alleges that the plaintiff's right of action accrued more than 10 years prior to the commencement of this suit, and is barred by the statute of limitations. The cause was tried to a jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals. The cause was before us on a former appeal. See 48 Iowa, 231.A. W. C. Weeks and C. C. Cole, for appellant.

McCaughan & Dabney, for appellee.

DAY, J.

1. At the time of announcing the charge to the jury the defendant excepted to the refusal to give certain instructions asked, and to the giving of all the instructions given. On the thirteenth day of September the jury returned a general verdict for the defendant, and also certain special findings. Thereupon the plaintiff gave notice of a motion in arrest of judgment. for a judgment in his favor, and for a new trial. On the fourteenth day of September the plaintiff filed a motion for judgment in his favor on the special findings, notwithstanding the general verdict. On the twentieth day of September this motion was overruled. On the twenty-first day of September the plaintiff filed a motion for a new trial. The appellee insists that the motion for a new trial was not made in time, under section 2838 of the Code, and cannot be considered, and that without a motion for a new trial properly filed none of the errors assigned upon the giving and refusal of instructions can be considered.

We deem it unnecessary to determine whether the motion for a new trial was filed in time. Section 3169 of the Code provides: “The supreme court may review and revise, on appeal, any judgment or order of the district or circuit court, although no motion for a new trial was made in such courts.” We are satisfied that this section authorizes a review without a motion for a new trial of rulings made during the trial, and excepted to at the time. Appellee insists that, under section 3168, a motion for a new trial, or some motion for the correction of the error complained of, must be made in the court below before the alleged error can be reviewed. This section is as follows: “A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been made there and overruled.” This section, in our opinion, applies only to such errors as without such motion would not be called to the attention of the inferior court. As decisive of this question see Coffin v. City Council of Davenport, 26 Iowa, 515;Webster v. C. R. & St. P. R. Co. 27 Iowa, 315;Root v. Illinois Central Ry. Co. 29 Iowa, 102;Johnson v. Semple, 31 Iowa, 49;Presnall v. Herbert, 34 Iowa, 539;Dufahl v. Tuttle, 42 Iowa, 177.

2. The motion for judgment in favor of plaintiff, notwithstanding the general verdict, is based upon four distinct grounds, The motion for a new trial is based upon 11 distinct grounds. The errors assigned upon the overruling of these motions are as follows: “The court erred: * * * * * Twenty-sixth. In overruling plaintiff's motion for judgment upon the special findings, notwithstanding the general verdict. Twenty-seventh. In overruling plaintiff's motion for a new trial.” The appellee insists that these assignments are not sufficiently specific to present any question for our consideration. The objection is well taken. Reiley v. Ringland, 44 Iowa, 422;Morris v. The C., B. & Q. R. Co. 45 Iowa, 29;Oschner v. Schunk, 46 Iowa, 293;Tomblins v. Ball, Id. 190; Bardwell v. Clare, 47 Iowa, 297;McCormick v. C., R. I. & P. R. Co. Id. 305.

3. Prior to the December term, 1879, of this court, the agreement of the appellant and of the appellee was filed. On the eighth day of December, 1879, the appellant filed an amendment to the assignment of errors, making the twenty-sixth and twenty-seventh assignment of errors sufficiently specific. The appellee made a motion to strike the amended assignment from the files. The court determined that this motion should be submitted with the cause, and added that the cause should stand continued, if the appellee so desired. The appellee then intimated that he desired the cause continued, if the motion was submitted with the cause. Accordingly, the cause was continued to the June term, 1880. The appellee filed a supplemental argument. It is now insisted that the motion to strike the amended assignment of errors from the files should be sustained. Appellee relies upon Betts v. City of Glenwood, 2 N. W. REP. 1012, Iowa 552. Section 3183 of the Code requires assignments of error to be filed ten days before the first day of the trial term. The amended assignment was filed on the eighth day of December, but the trial term for this case was not until the following June. The assignment was, therefore, in time under the statute.

4. It is conceded that the plaintiff is the owner of the legal title to the land in controversy, and that he is entitled to recover unless his right of action is barred by the statute of limitations. The action was commenced on the twenty-eighth day of December, 1875. The evidence tends to show that the defendant purchased the land in controversy about October 1, 1865, of Arthur Connelly, through his agent, M. Glazebrook. The contract was verbal. It does not appear when payment for the land was made. The deed from Connelly to the defendant was executed May 2, 1867. The land was unenclosed prairie. The evidence as to possession prior to December 28, 1865, is as follows:

The defendant testified: “I went on it a month or so after I bought it, to hunt for the north-west corner, with an object of improving it the next spring--breaking. I had a spade with me and was digging around where I supposed the north-west corner was to ascertain where the north and west lines were. I dug on the land in controversy. I was on it frequently. I went on the land and engaged in those operations by virtue of my contract with Glazebrook. My object in ascertaining the north-west corner and the lines was to find them, so I could tell where to break the next spring. John Rose was with me. I then claimed the whole 80 acres by virtue of my contract with Mr. Glazebrook. My cattle ran on the land the summer and fall of 1865. I drove them on there. This land was...