Chi. Joint Stock Land Bank v. Eggers, 41211.
| Decision Date | 24 June 1932 |
| Docket Number | No. 41211.,41211. |
| Citation | 243 N.W. 193,214 Iowa 710 |
| Parties | CHICAGO JOINT STOCK LAND BANK v. EGGERS ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Harrison County; Earl Peters, Judge.
Suit to recover for rent, aided by an attachment. On the trial certain specific questions were answered by the jury adversely to the defendants. A motion for a new trial was sustained by the court and the plaintiff appealed from this ruling. In the trial defendants pleaded counterclaim and set-off in four counts. At the close of the case, on motion, the court dismissed the counterclaim and set-off. From this action of the court, defendants appeal.
Affirmed on both appeals.Ben J. Gibson, of Des Moines, and Bolter & Murray, of Logan, for appellant.
P. W. Harding, of Denison, and Robertson & Wolfe, of Logan, for appellees.
[1][2] Plaintiff sued defendants to recover unpaid rent on a 500-acre tract of land which defendants had previously rented from the plaintiff under a written lease. The case was submitted to the jury under instruction requiring the jury to answer two questions therein submitted. The jury having performed its duty and answering such questions adversely to the defendants, they filed a motion for a new trial, setting out fourteen different grounds therein. All the grounds of the motion were overruled except the court sustained the ground charging misconduct on the part of one of the jurors and granted a new trial on this ground alone, and the correctness of this ruling by the court in sustaining this motion is the sole question raised by the plaintiff on its appeal.
Generally speaking, the record shows that during the trial of this case, which was held at Logan in Harrison county, this juror rode in an automobile from Logan to Dunlap, a distance of 18 miles, with one C. F. Maynard, who was the field representative and the principal witness for the plaintiff in this case. Without further detail of the evidence had on hearing on this motion, we are disposed to think the ruling of the court thereon was correct. The granting of the motion for a new trial is a discretionary matter with the trial court, and we have persistently refused to interfere therewith unless it appears there has been an abuse of the exercise of this discretion. See Rosche v. Bettendorf Axle Co., 168 Iowa, 461, 150 N. W. 663, and cases there cited; also Utseth v. Pratt-Mallory Co., 208 Iowa, 1324, 227 N. W. 115;Jelsma v. English, 210 Iowa, 1065, 231 N. W. 304.
A hearing was had on this motion for a new trial and evidence taken of the recalcitrant juror and some other parties. The court heard these witnesses testify, saw their action and demeanor, and therefrom, and from the testimony, reached a conclusion that “the conduct on the part of said juror is such that the defendants should be granted a new trial on the ground of her misconduct.” We cannot find anything in the record which would lead us to overrule the action of the court in this matter. It evidently followed the rule laid down in Lynch v. Kleindolph, 204 Iowa, 762, 216 N. W. 2, 55 A. L. R. 745, and made no error in so doing. It follows, therefore, that the action of the court is affirmed on the plaintiff's appeal.
[3] As to the defendants' appeal, their complaint is from the action of the court in striking out the counts set up as set-offs in their answer and counterclaim, and directing a verdict against them thereon.
The first count of the counterclaim for set-off is an alleged breach of the lease by the plaintiff for its failure and refusal to furnish any material, posts, wire, or staples to construct and maintain the fence on said farm.
The second count is also an alleged breach of the lease by the plaintiff for its failure to furnish material to rebuild and repair a chicken house.
The third count is another alleged breach of the lease for a failure to furnish the material, posts, wire, and staples to repair a fence other and different from that referred to in the first count.
The fourth count was withdrawn by the defendants.
The said motion as to count 1 of this counterclaim was bottomed on the grounds: (1) That there was no evidence offered to support the provisions thereof; (2) that under the undisputed evidence, the plaintiff was under no obligations to furnish any of the material necessary to repair and rebuild the pasture fence, and there is no covenant in the lease to that effect; (3) that there was no evidence offered of any damage sustained by the defendants by reason of the failure to furnish the material in question, nor is there any evidence of any expenditure, on the part of the defendants, for the material necessary for the repair or rebuilding of fence in question.
Each of the grounds above stated attacking the first count of the counterclaim were repeated as to the second count, and further objection is made that there is no proper measure of damages shown.
As to the third count, the same grounds are made the basis of attack as those attacking the first ground, and it is...
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