Eller v. Newell
| Decision Date | 14 April 1913 |
| Citation | 141 N.W. 52,159 Iowa 711 |
| Parties | C. L. ELLER and L. R. ELLER, Appellants, v. L. F. NEWELL, ELLA A. NEWELL, his wife; CARRIE E. STONE, W. S. STONE, her husband, Defendants and Cross-Petitioners; FRANK W. NEWELL and LAURA NEWELL, Interveners and Cross-Petitioners, Appellees |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--HON. C. W. VERMILLION, Judge.
APPEAL from an intermediate order transferring a cause to the equity side of the calendar, and from a further order overruling plaintiffs' motion to strike a cross-petition. The plaintiffs appeal from both orders.
Reversed.
Chester J. Eller, Steck & Steck and McNett & McNett, for appellants.
Tisdale & Heindel and J. W. Lewis, for appellees.
On June 24, 1911, the plaintiffs and defendants entered into a contract whereby the former agreed to pay the latter $ 31,500 for two hundred and forty-six acres of land, $ 1,000 down, $ 1,000 July 10, 1911, $ 13,000 March 1, 1912, and at that time execute a mortgage thereon securing notes for $ 16,500 payable in five years, and the latter undertook "to convey by warranty deed on or before March 1, 1912, to said party of the second part [plaintiffs], or his assignees the real estate of the party of the first part [defendants] situated in Wapello county [describing it] together with all and singular the appurtenances thereto belonging and to deliver such conveyance, as aforesaid together with abstract of title showing clear title of record in the said party free from incumbrance, abstract to be ready for examination not later than Jan. 3, 1912." Possession was to be given March 1, 1912, and it was further "understood that, providing either party thereto fails to fulfill this contract, then said party so failing pays as liquidated damages the sum of $ 2,000." In their petition filed March 12, 1912, plaintiffs allege the execution of the contract, payment thereon of $ 2,000, omission by defendants to furnish abstract of title until January 18, 1912, and defects therein not curable, save by action to quiet title, their readiness to perform March 1, 1912, the tender by defendants at that time of a deed without covenant sufficient to warrant title against defects appearing in the abstract, and of an abstract of title not legally signed by the abstractor, inability to give possession, and praying judgment for the money paid, with interest, and for the liquidated damages stipulated. The minutes of examination of the abstract by plaintiffs' attorney were attached, disclosing only thirty-eight defects.
By way of answer and cross-petition the defendants admit the payments alleged, say that the abstracts were ready at the place agreed, though not reaching plaintiffs at the time stipulated, deny that plaintiffs were ready to perform, allege defendants' readiness to perform March 1, 1912, and the tender of a sufficient warranty deed; that "they at the time the transaction was to be closed, expressed a readiness and willingness to meet all reasonable objections made to said title, and to cure all defects therein as soon as the same could be done with reasonable dispatch; that they have employed attorneys for said purpose, and have instructed them to perfect said title, in so far as there are any defects therein, at the earliest, reasonably practical time, and they will have same so done; that they are ready to protect plaintiffs against any substantial defects in the title by having the notes and mortgages to be executed left in escrow until the title is perfected, or to give bond with good security to perfect same within a reasonable time; that plaintiffs leased the land, and the tenant went into possession, and by agreement the tenant is to pay rent to no one until it is determined who is entitled to the same." A counterclaim of defendant Carrie E. Stone for wrongfully suing out a writ of attachment, and praying for damages in the sum of $ 500, was included. They pray for specific performance; that a time be fixed within which plaintiffs shall comply with their agreement, and if they do not comply that forfeiture of the $ 2,000 be enforced. By amendment they asked that a vendor's lien for the unpaid purchase money be established against the land. On April 18, 1913, defendants moved that the cause be transferred to the equity side of the calendar, and if this were denied that all issues of equitable nature be heard in equity.
On July 25, 1912, Frank Wilber Newell and Laura Newell, his wife, filed a petition of intervention, and with L. F. Newell and Carrie Ellen Stone a cross-petition, in one pleading, with thirty or forty named defendants and unknown claimants, in substance praying that title to the land in controversy be quieted in the defendants L. F. Newell and Carrie E. Stone. On August 6, 1912, plaintiffs moved that this pleading be stricken from the files on several grounds to be referred to hereafter. The court sustained the motion to transfer the cause to the equity side of the calendar and overruled the motion to strike the petition of intervention and cross-petition praying that title be quieted. These rulings alone are challenged on this appeal.
I. The petition stated an action at law only. The defendants by answer put the allegations of the petition in issue, by cross-petition prayed for equitable relief, and one of the defendants pleaded a counterclaim at law. Unless the determination of the issues raised by the cross-petition will necessarily adjudicate the issues raised by the petition and answer, there was prejudicial error in transferring the cause to the equity side of the calendar.
The several statutes bearing on the question may be set out:
Section 3433: Such error may be corrected by the plaintiff without motion at any time before the defendant has answered, or afterwards on motion in court.
Section 3434: The defendant may have the correction made by motion at or before the filing of his answer, where it appears by the provision of this Code wrong proceedings have been adopted.
Section 3435: Where the action has been properly commenced by ordinary proceedings, either party shall have the right, by motion, to have any issue heretofore exclusively cognizable in equity tried in the manner hereinafter prescribed in cases of equitable proceedings; and if all the issues were such, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of equitable proceedings.
Here there was no error in the kind of proceedings, for the petition stated an action at law, and for this reason there was no occasion for a motion by either party to transfer. Having been begun on the law side of the docket, it should have continued there, notwithstanding the interposition of equitable defenses, counterclaims, or cross-petitions. Byers v. Rodabaugh, 17 Iowa 53; Morris v. Merritt, 52 Iowa 496, 3 N.W. 504; Johnston v. Robuck, 104 Iowa 523, 73 N.W. 1062; Tufts v. Norris, 115 Iowa 250, 88 N.W. 367. If equitable issues are so raised by the defendant by motion, he may have these issues heard separately by the court; but this does not involve a change to the equity docket. Marquis v. Illsley, 99 Iowa 135, 68 N.W. 589; Marling v. Railway, 67 Iowa 331 at 335. The rule is different where legal defenses or counterclaims at law are interposed in a suit cognizable in equity, for in that event all are triable to the court without the interposition of the jury. Ryman v. Lynch, 76 Iowa 587, 41 N.W. 320; Frost v. Clark, 82 Iowa 298, 48 N.W. 82; Crissman v. McDuff, 114 Iowa 83, 86 N.W. 50.
The ruling, then, by which the cause was transferred to the equity side of the calendar was erroneous, and may have been prejudicial in depriving plaintiffs of the right to trial by jury, at least of the issue with respect to liquidated damages. See Kelly v. Fejervary, 111 Iowa 693, 83 N.W. 791.
Whether the portion of the motion asking that the issues raised by the cross-petition be heard in equity would seem necessarily to have been included in the ruling of the court. But there was no ruling on that portion of the motion, save as so included. If it really states a cause of action for specific performance, there can be no doubt as to the propriety of an order directing that the hearing be as in equity. It is to be observed, however, that the circumstance alleged, that plaintiffs leased the land, and their tenants took possession, is not pleaded as a waiver of performance on the day stipulated, or reason for delay. See Lillienthal v Bierkamp, 133 Iowa 42, 110 N.W. 152. Nor is other...
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