Brown v. Rose

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

7 N.W. 133

55 Iowa 734

BROWN v. ROSE

Supreme Court of Iowa, Des Moines

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 ten 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.

REVERSED.

A. W C. Weeks and C. C. Cole, for appellant.

McCaughan & Dabney, for appellee.

OPINION

DAY, J.

I.

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 13th 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 14th day of September the plaintiff filed a motion for judgment in his favor on the special findings, notwithstanding the general verdict. On the 20th day of September this motion was overruled. On the 21st 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 reverse 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. Company, 29 Iowa 102; Johnson v. Semple, 31 Iowa 49: Presnall v. Herbert, 34 Iowa 539; Drefahl v. Tuttle, 42 Iowa 177.

II. 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 eleven 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. Reilly v. Ringland, 44 Iowa 422; Morris v. The C. B. & Q. R. Co., 45 Iowa 29; Oschner v. Schunk, 46 Iowa 293; Tomblin v. Ball, 46 Iowa 190; Bardwell v. Clare, 47 Iowa 297; McCormick v. C. R. I. & P. R. Co., 47 Iowa 345.

III. Prior to the December term, 1879, of this court the argument of the appellant and of the appellee were filed. On the 8th 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 this 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. The City of Glenwood, 52 Iowa 124, 2 N.W. 1012.

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 8th 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.

IV. 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 28th 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 uninclosed 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 northwest 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 northwest 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 northwest 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 eighty 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 prairie land. I broke twenty acres in the spring of 1866, and fenced it in winter of 1866-7, and sowed it in wheat in spring of 1867."

John Rose testified: "I was on the land with defendant before any breaking was done. We went to look for northwest corner, and trace the lines. We dug into...