Culligan Soft Water Service v. Berglund

• Decision Date: 18 October 1966
• Docket Number: No. 52287,52287
• Parties: CULLIGAN SOFT WATER SERVICE, Appellee, v. Douglas BERGLUND, Appellant.
• Court: Iowa Supreme Court

Page 604

145 N.W.2d 604

259 Iowa 660

CULLIGAN SOFT WATER SERVICE, Appellee, v. Douglas BERGLUND, Appellant.

No. 52287.

Supreme Court of Iowa.

Oct. 18, 1966.

Isadore Nadler, Waterloo, for appellant.

Edward D. McCoy, Waterloo, for appellee.

MOORE, Justice.

This is an action on a promissory note admittedly signed by defendant in conjunction with a conditional sales agreement for sale of a water softener by plaintiff, Culligan Soft Water Service, to defendant, Douglas Berglund. Defendant pleaded fraud in the inception of the note and agreement and election of remedies such as to bar this action. Trial to the court resulted in judgment against defendant for $284.73. Defendant has appealed. We affirm.

Despite our many warnings in the past, we again find a record which makes little pretense of complying with the Rules of Civil Procedure. We have consistently warned attorneys such failure may result in dismissal of the appeal. In re Adoption of Cannon, 243 Iowa 828, 835, 836, 53 N.W.2d 877, 882, and citations. In re Estate of Gerdes, 244 Iowa 332, 56 N.W.2d 897, we dismissed the appeal for failure to comply with the plain provisions of our rules. We might well do the same here. Beginning with the caption, which we have corrected, and in several respects, some of which we shall point out infra, the record as submitted is inadequate. Appellee's brief ignores rule 344 in that no authorities are cited to support the rulings of the trial court. Compliance with the rules assists in our better understanding the issues and the merits of the appeal.

We have nevertheless, in keeping with our desire to dispose of appeals on their merits, decided to consider the questions raised on this appeal as we are able to understand them. See Associates Discount Corp. v. Held, 255 Iowa 680, 684, 123 N.W.2d 869, 871, and citations.

I. Rule 335, Rules of Civil Procedure, as pertinent here, provides appeals to this court must be taken within 30 days from the entry of judgment or decree. Rule 336 provides: 'How taken; notice; delivery. Appeal is taken and perfected by filing a notice with the clerk of the court where the order, judgment or decree was entered, signed by the appellant or his attorney. It shall specify the parties taking the appeal, and the decree, judgment, order or part thereof appealed from. * * *'

The right to appeal is statutory and in civil cases is governed by our Rules of Civil Procedure. Only after compliance with the rules has this court jurisdiction to entertain an appeal. Hagmeier v. Dryden Rubber Division, 245 Iowa 1121, 1123, 1124, 66 N.W.2d 111, 112, and citations; Jackson v. Jackson, 248 Iowa 1365, 1368, 85 N.W.2d 590, 593, and citations.

The record here is devoid of the slightest mention of notice of appeal. Rule 340 requires all proceedings in the case material to the appeal be shown in the record. It is important the record show the notice of appeal and the date thereof. Phoenix v. Stevens, 256 Iowa 432, 434, 127 N.W.2d 640, 641. See also Plummer v. People's Nat. Bank of Independence, 73 Iowa 752, 33 N.W. 150; McLaughlin v. Hubinger Bros. Co., 135 Iowa 595, 113 N.W. 475.

As authorized by rule 341 at our request the clerk of the court below has certified to us a copy of the notice of appeal. We have also been furnished a certified copy of the trial court's order authorizing this appeal is required by rule 333. We therefore will consider the issues raised by defendant-appellant. Our leniency here is not to be construed as a precedent for future violations of the rules should there be any such.

II. Prior to trial defendant filed three motions for change of venue. Each was overruled. He assigns error only on the ruling on his third motion. Plaintiff-appellee argues the second and third motions were repetitions of the first and therefore no issue is presented on appellant's first assignment. In view of our ruling infra this claim need not be decided. The contents and basis of the first two motions are not shown by the record. Defendant's third motion was made under rule 167(e) which provides a defendant, sued in a county where he does not reside, on a written contract expressly performable in such county, who has filed a sworn answer claiming fraud in the inception of said contract as a complete defense thereto, may have the case transferred to the county of his residence.

The provisions of rule 167(e), which are the same as earlier statutes, regarding a change of venue are mandatory when the requirements of the rule are met. Sorlie v. Peters, 233 Iowa 349, 351, 7 N.W.2d 36, 37, 38, and citations.

The record fails to disclose any proof offered by defendant bringing him under rule 167(e) as to place of residence. The sales contract attached to the petition shows his address as 324 4th Street, Washburn, Iowa. This is in Black Hawk County where he was being sued.

We must take the record as made by counsel. Cale v. Great Western Supply Co., 255 Iowa 237, 238, 122 N.W.2d 455, and citations. From the scant record submitted we conclude the trial court found defendant failed to meet the requirements of the rule and therefore properly overruled the third motion for change of venue.

III. On trial exhibit A, the sales contract to which the note was attached, was received in evidence by agreement of the parties. Plaintiff then called its Vice President and General Manager, Emory Stoka, who identified the company office record, exhibit B, showing credits due defendant. He had not been with the company when the sale was made but was in charge of the records when the company was compelled to take possession of the water softener two and a half years after the sale. Stoka testified it was picked up after defendant had threatened to put it in the street. Defendant's testimony corroborates these facts. Later the softener was sold resulting in a credit of $145 on the note.

Defendant objected to exhibit B on the ground proper foundation had not been laid to make it admissible under the provisions of Code section 622.28. The trial court found exhibit B had been kept in the regular course of business and that its trustworthiness had been established. We agree the record well establishes its admissibility. See Bingham v. Blunk, 253 Iowa 1391, 116 N.W.2d 447; Moffitt Bldg. Material Co. v. United States Lbr. & Sup. Co., 255 Iowa 765, 124 N.W.2d 134. Why defendant objected to proof of credit is most difficult to understand. No prejudice to defendant could possibly result in the court's ruling.

IV. Defendant testified plaintiff's salesman, Dale Cameron, said 'at any time you are dissatisfied with the unit, you let us know, and we will take the unit back'. He further testified he relied on Cameron's statement and would not have signed but for his understanding the sale was on a 90 day trial basis. The evidence is undisputed Cameron had no authority to sell on a trial basis. The sales contract is regular on its face and contains no reservations. Defendant testified he signed on Cameron's representation it was necessary so Cameron could get his commission.

Defendant testified he had bought many articles on conditional sales agreements...