Eilers v. Frieling
| Decision Date | 20 January 1931 |
| Docket Number | No. 40450.,40450. |
| Parties | EILERS v. FRIELING ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Page County; Earl Peters, Judge.
Action on a promissory note. The obligation of defendant Wagoner is that of surety, only. He contends that, without his consent, an extension of time was granted the maker for the payment of the note, and that, by reason thereof, he is discharged from liability. Trial to the court, without a jury. Judgment in favor of said defendant. The plaintiff appeals.
Affirmed.George A. Anderson, of Clarinda, and Tinley, Mitchell, Ross & Mitchell, of Council Bluffs, for appellant.
Stephens & Thornell and Paul L. Millhone, all of Clarinda, for appellees.
The matters in controversy are only those as between plaintiff, the payee of the note in suit, and Wagoner, whose obligation thereon is only that of surety. The note bears date of September 10, 1922, due and payable March 1, 1924, is for $1,600, and bears interest “at the rate of six per cent per annum, payable annually.” The note was signed by Fritz Frieling and his wife, Sophia Frieling, and the appellee J. H. Wagoner. There is involved in this litigation no issue as between the plaintiff and the Frielings. The various complaints of the appellant will be noted as we proceed.
[1] The appellant complains of the ruling of the court in overruling his objection to a question propounded to one of his witnesses on cross-examination. If the answer to said question were excluded, the equivalent of said testimony remains in the record. Therefore, there is no error at this point of which the appellant can complain.
[2][3][4] At the conclusion of the evidence, the attorney for appellee made the statement that he desired to file an amendment to his answer to conform to the evidence, and the court remarked at the time that he would like to see the amendment before he made any ruling. In the amendment which was filed forthwith, the appellee alleged that the note of $1,600 sued upon shows upon its face that it was due upon March 1, 1924; that said note was extended by the plaintiff, J. F. Eilers, on September 1, 1924, for one year, and was again extended by the plaintiff, J. F. Eilers, on September 10, 1925, and for another year, and was again extended by the said J. F. Eilers on September 10, 1926, for another year, and was again extended by the said J. F. Eilers September 10, 1927, for another year, and said note was again extended by the said J. F. Eilers on September 10, 1928, for one year, and that said extensions were made without the knowledge or consent of the appellee, who was a surety only upon said note, etc. Plaintiff filed a motion to strike said amendment on the grounds that it was not filed in time, and that it does not conform the pleadings to the proof, which motion was by the court overruled. This ruling is now assigned as error. There is evidence in substantiation of the averments of the amendment. We find no error at this point. The appellant's attorney, on direct examination of plaintiff, asked the question whether he had at any time after the note was executed made an extension of the note. Evidence relative to the same matter was drawn out on cross-examination of the plaintiff and his wife. There was no objection to this cross-examination of the plaintiff. The proof thus elicited on cross-examination is what prompted the filing of the amendment. It is the general and well-established rule in this state that courts are very liberal in allowing amendments to pleadings, and especially where the amendment is proper to conform the pleadings to the proof. This matter rests largely in the discretion of the trial court. See Farmers' Mercantile Company v. Farmers' Ins. Company, 161 Iowa, 5, 141 N. W. 447;Fisher v. McCarty, 197 Iowa, 369, 195 N. W. 608;Blandon v. Glover, 67 Iowa, 615, 25 N. W. 830;Matheson v. Iowa State Traveling Men's Association, 180 Iowa, 1019, 164 N. W. 194;Thomas v. Town of Brooklyn, 58 Iowa, 438, 10 N. W. 849. The appellant made no allegation of surprise, could not well have done so--since he interrogated the plaintiff as a witness on direct examination concerning the same matter--did not ask for a continuance, and we fail to find any prejudice to his substantial rights. We find no abuse of discretion in the ruling of the trial court.
[5] The appellant filed a motion in arrest of judgment, which was overruled. It is the appellant's contention that the allegations of the amendment are insufficient to constitute a defense. The sufficiency of the amendment as a pleading was not attacked. While perhaps the amendment may not be considered a model and could have been more specific, yet, it cannot be said that it wholly fails to state a defense within the purview of the provisions of section 11554 of the Code of 1927. There was no error in overruling the motion in arrest of judgment.
[6][7][8][9][10] The appellant's chief complaint is that the trial court was wrong in finding against him and in favor of the appellee on the evidence. We have made repeated pronouncements to the effect that, in actions at law tried to the court without a jury, the decision of the court on questions of fact have the same weight, force, and effect as would the verdict of a jury. See Scott v. People's Monthly Co. (Iowa) 228 N. W. 263, 67 A. L. R. 413;Gregerson Bros. v. J. G. Cherry Co. (Iowa) 231 N. W. 350. The case is not triablede novo in this court. The question confronting us is not, what would be our finding on the facts from the evidence introduced? But, is there evidence in support of the findings of the trial court? In other words, is there evidence and the fair inference to be drawn therefrom from which the trial court could arrive at its findings? If so, we would not be justified in reversing.
It is well settled that,...
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