Chandler v. Taylor

• Decision Date: 11 January 1944
• Docket Number: 46410,46411.
• Citation: 12 N.W.2d 590,234 Iowa 287
• Parties: CHANDLER v. TAYLOR, Judge (two cases).
• Court: Iowa Supreme Court

12 N.W.2d 590

234 Iowa 287

CHANDLER v. TAYLOR, Judge (two cases).

Nos. 46410, 46411.

Supreme Court of Iowa

January 11, 1944

O. M. Slaymaker, R. E. Killmar, and D. D Slaymaker, all of Osceola, for petitioners.

G C. Stuart. of Chariton, for respondent.

MILLER Justice.

This is one of the first cases to come to this court under the new rules of civil procedure. The proceedings arise out of an action in equity by Carl Rudeen as plaintiff against defendants Fred Chandler, Howard Chandler and Fred Mitchell Chandler. The petition in equity was filed on June 3, 1943. On August 12 1943, Fred Chandler died. Steps were taken to substitute the administratrix of his estate as party defendant. However, such substitution had not been accomplished at the time of the entry of the order complained of herein, so that Howard Chandler and Fred Mitchell Chandler are the only petitioners before this court in these proceedings in certiorari.

The petition in equity as later amended asserted: Plaintiff Rudeen resides near Pocatello, Idaho, and is engaged in raising live stock; defendants reside at Chariton, Iowa, and are engaged in selling live stock on a commission basis; the Chandlers are associated together but Rudeen does not know the exact interest of each, whether on a partnership basis or otherwise; Rudeen had correspondence with Fred Chandler, as a result of which Rudeen shipped to Fred Chandler 596 head of ewes to be sold on a commission basis; the ewes arrived at Chariton, Iowa, on October 24, 1942; on November 5, 1942, Howard Chandler advised Rudeen that the ewes had been sold for $4,151, against which sum Chandler claimed offsets of $1,889.64 and tendered a check for $2,261.36 as the balance due Rudeen, which was refused; the ewes were shipped to Chandler to be sold as breeding ewes, but Chandler sold them to a packing company at Ottumwa; the Chandlers are indebted to Rudeen for at least $3,000. The prayer was that the Chandlers render a full account of the handling of Rudeen's ewes, that Rudeen have judgment for the amount found to be due him and that an attachment issue to secure the payment of $3,000.

Howard Chandler filed a separate answer which asserted that his only connection with Fred Chandler was that of an employee or assistant, that he had no interest or share in the business of Fred Chandler and received no share of the profits therefrom. Fred Mitchell Chandler filed a separate answer that denied that he had any business connection with Fred Chandler and asserted that he had no connection whatever with the transaction with Rudeen in any way. Rudeen filed a reply to these separate answers and therein asserted that Howard Chandler and Fred Mitchell Chanler were partners with Fred Chandler and that each shared in the profits derived from said business, that the Chandlers intentionally conducted the business so that it would be difficult to determine the exact interest of each therein.

With the issues thus joined, Rudeen filed an unverified application for the production of books and papers which asserted: It is important for Rudeen to know the exact interest of each of the Chandlers in the business operated in the name of Fred Chandler; the office was principally under the supervision and control of Howard Chandler; the proceeds from sales on commission basis have not gone into the bank account of the Fred Chandler Live Stock Commission Account in the Nat'l Bank & Trust Co. in Chariton, but have been handled in cash or through some other bank account; Fred Mitchell Chandler has purported to purchase real estate in Lucas County and a large part of the purchase price has been paid in cash; Rudeen believes that this money was received from the business handled in the name of Fred Chandler. Production of various books and papers was requested, Rudeen asserting that they were material to a just determination of the cause, that practically all of the records requested were in the possession or under the control of Howard Chandler and those not in his possession or control were in the possession or under the control of Fred Mitchell Chandler.

Howard Chandler filed a verified resistance to the application for the production of books and papers which asserted: The application was inadequate to confer jurisdiction upon the court; the application fails to identify the books and papers or to disclose that they are material to a just determination of the cause; the application is fatally defective for lack of a verification and because it does not contain an affidavit of any person knowing the facts recited therein; the facts recited are insufficient to entitle applicant to relief; the application is a palpable fishing expedition, designed to rifle an adversary's files; Howard Chandler has no books, papers, letters, files or other documentary evidence under his control that will in any way show or tend to show any interest in the business operated by Fred Chandler; all the personal effects of Fred Chandler are in the custody of the administratrix of his estate. Fred Mitchell Chandler filed a verified resistance of similar import.

The court ordered Howard Chandler and Fred Mitchell Chandler to produce the following books, papers and records, or such part of them as may be in the possession or control of either of them, to-wit:

"1. Bank statements of, and cancelled checks drawn on the account of 'Fred Chandler Live Stock Commission Account' in the National Bank and Trust Co., of Chariton, Iowa from September 1, 1942 to September 1, 1943, both dates inclusive.

"2. All books and records showing all transactions handled in the name of Fred Chandler, relative to the handling and sale of all live stock on commission whether said live stock was the property of any one or more of the defendants originally named in the petition filed in this cause, and for the period from September 1, 1942 to September 1, 1943, both dates inclusive.

"3. All correspondence received either in the name of Fred Chandler, Howard Chandler or Fred Mitchell Chandler, and copies of all letters sent and signed by any one or more of said defendants, or signed Fred Chandler by either or both of the other two defendants, and pertaining to the purchase, sale or handling on a commission, in the name of Fred Chandler of any live stock which was the property of any one or more of said three defendants within the year from September 1, 1942 to September 1, 1943, both dates inclusive.

"4. All books, papers and records, including bank statements or bank deposit records, showing the individual income of each and all of the defendants, Fred Chandler, Howard Chandler and Fred Mitchell Chandler, and the sources from which said income was received.

"5. All books, papers and records of every nature and kind which refer, in whole or in part, to the receipts and disbursements made in connection with the purchase, sale or handling upon commission any live stock by Fred Chandler, or in his name by any other person, or which tends to disclose in any respect the manner in which, the persons by whom such business was conducted, and the interest therein, and income therefrom as to any one or more of the three defendants named in the original petition filed in this cause, for the year from September 1, 1942 to September 1, 1943, both dates inclusive."

Two writs of certiorari were issued by the chief justice of this court to review the legality of such order. The two causes have been ordered consolidated and were submitted together.

I. The sufficiency of the application for the production of books and papers is challenged because it was not verified. Heretofore the procedure for such relief was prescribed by Sections 11316, 11317 and 11318, Code 1939. Section 11317 specifically provided, "The petition for that purpose shall be verified." However, Rule 1 (d) of the Rules of Civil Procedure, adopted by this court pursuant to Chapter 311, Acts of the 49th G.A., provides: "After these Rules take effect courts and litigation shall no longer be governed by the statutes listed in column 1 of the Table appended to these Rules as Appendix I, and the practice and procedure shall no longer be in accordance therewith." In Column 1 of said Appendix I are listed Sections 11316, 11317 and 11318. Accordingly, our practice and procedure are no longer governed by such statutes. In their stead, we must look to Rules 129, 130, 131 and 134. These rules contain no provision for verification of the application involved herein. There is no merit in the contention that a verification thereof was necessary.

II. It is also contended that the application is fatally defective because it is not supported by the affidavit of some person knowing the facts. Reliance is had upon Rules 68, 69, 109, and 80 of the Rules of Civil Procedure. Rule 68 provides: "The pleadings shall be: petition, answer, and such counterclaim, reply, amendment, cross-petition or petition of intervention, as these Rules allow." Rule 69 provides: "'Pleadings' as used in this Division, do not include motions. They are the parties' written statements of their respective claims or defenses." Rule 109 provides: "A motion is an application made by any party or interested person for an order. It may contain several objects which grow out of, or are connected with, the action. It is not a 'pleading'."

Rule 80 provides:

"(a) Pleadings need not be verified. Counsel's signature to every motion or pleading shall be deemed his certificate that there are good grounds for making the claims therein, and that it is not interposed for delay.

"(b) Any motion asserting facts as the basis of the order it seeks and any pleading seeking interlocutory relief, shall contain affidavit of the person or persons knowing the facts requisite to such...