Elson v. Nickles

• Decision Date: 08 March 1949
• Docket Number: 47386.
• Citation: 36 N.W.2d 343,240 Iowa 292
• Parties: ELSON v. NICKLES.
• Court: Iowa Supreme Court

36 N.W.2d 343

240 Iowa 292

ELSON v. NICKLES.

No. 47386.

Supreme Court of Iowa

March 8, 1949

C W. Elson, of Corydon, and Charles L. Elson, of Leon, and W B. Hays, of Centerville, for appellant.

R E. Killmar, or Osceola, and Elton A. Johnston, of Corydon for appellee.

HALE Justice.

This is an action at law by C. W. Elson, administrator of the estate of Flora B. Sallman, deceased; the petition being in two counts. Count one was for $732.28 being one-half of the amount paid by plaintiff on the promissory note to Ricka Rasmussen, signed by George T. Nickles, as principal, and Coyna Nickles, his wife, and Flora B. Sallman, as sureties. Count two was for $917.50 being one-half of the amount paid by plaintiff on a promissory note to T. W. Miles, signed by George T. Nickles, as principal, and Coyna Nickles and Flora B. Sallman as sureties.

The defendant answered, denying that she was surety for one-half of the principal as alleged in petition. She alleged that she was surety only for the payment of interest on the notes during the lifetime of Flora B. Sallman. She filed a counterclaim as a setoff, being a claim for services rendered Flora B. Sallman in her lifetime. Plaintiff filed a reply denying the allegation of defendant that she was surety only on the interest during the lifetime of Flora B. Sallman.

Flora B. Sallman was the aunt of the defendant, Coyna Nickles, who was the wife of George T. Nickles, and a widow from 1926 up to the time of her death. For four or five years Mrs. Nickles made her home with her aunt during the time she was attending school and up to the time of her marriage to George T. Nickles in 1921. A sister Lucille also made her home with the aunt up to the time of her marriage to one Littell. All were residents of Corydon.

A petition was filed August 18, 1945. There was a mass of pleadings, counterpleadings, and orders of the court, and listed by defendant, extending to June 14, 1948. So many, in fact, that they tended to obscure the issues in the case. It is unnecessary to set out, to any extent, the most of these. There is really only one issue in this appeal. When Mr. Nickles signed with Mrs. Sallman as surety on the two notes, was it intended that Mrs. Nickles was to be surety for the interest only, with Mrs. Sallman, during the lifetime of Mrs. Sallman?

The final order of the court is that the plaintiff's petition and cause of action, including both counts thereof, 'be and are hereby dismissed with prejudice and at plaintiff's costs. It is further ordered and adjudged that all claims made by the defendant, against the plaintiff, by way of set-off or counterclaim be and the same are hereby dismissed without prejudice to a right to assert the same as a setoff against the plaintiff in event of retrial of this action.' From the rulings of the court, adverse of plaintiff, plaintiff appeals.

I. The plaintiff's first assignment of error is that the court erred in overruling the plaintiff's motion to strike from the files in this case the entire amendment to answer filed April 12, 1948, by the defendant, for the reason set out in said motion. This amendment to the answer referred only to the claim which defendant filed for services she sought to have established. These were met by objections and motions to strike, but the court in its final order and decree refused to allow the claim. Whether the court was right or wrong in permitting the filing of the amendment is not material now. Plaintiff has no cause of complaint.

It is the general rule that the permission to file amendments is largely within the discretion of the court. Rule 88, Rules of Civil Procedure; Brown v. Schmitz, 237 Iowa 418, 423, 22 N.W.2d 340, and cases cited; Terpstra v. Schinkel, 235 Iowa 547, 17 N.W.2d 106. To allow such an amendment as this is the rule, and to deny it is the exception. Webber v. E. K. Larimer Hardware Co., 234 Iowa 1381, 1389, 15 N.W.2d 286, and cases cited; Green v. Phoenix Ins. Co., 218 Iowa 1131, 1143, 253 N.W. 36.

Plaintiff cites a number of authorities, some of which relate to the belated filing of the amendment, and others asserting what is a well-known rule that amendments are permissible only when they do not change the claim or defense. As, for instance, Dobson v. John Clemens & Co., 194 Iowa 1155, 1159, 191 N.W. 184, which relates to withholding a known defense; Shawyer v. Chamberlain, 113 Iowa 742, 84 N.W. 661, 86 Am.St.Rep. 411, which reiterates the rule that an amendment is permissible only when it does not change the defense; Markley v. Western Union Telegraph Co., 151 Iowa 612, 132 N.W. 37; Bays v. Herring, 51 Iowa 286, 1 N.W. 558. The record in the Bays case was incomplete but the ruling was sustained as being within the discretion of the court.

Various other cases cited by plaintiff refer to different circumstances and conditions and are not in conflict with the general rule. However, the circumstances in this case sustain the court's ruling. The amendment was filed by way of counterclaim or offset before the trial was started, but we think the most serious objection to plaintiff's assignment of error is that it appears from the record that plaintiff was in no way prejudiced. The court failed to sustain the defendant's counterclaim. In its final ruling the counterclaim was dismissed, not without prejudice but without prejudice to its being urged as a defense in any subsequent retrial of the issues in this case. It is not available to the defendant as an independent cause of action so that the filing of the amendment did not prejudice the plaintiff as the plaintiff's own claims were not allowed by the court.

II. Plaintiff urges that the court erred in overruling his motion to strike from the files in this case the defendant's amendment to her answer filed May 26, 1948, to make her pleadings conform to the proof, because there was no proof to support said amendment to answer.

The amendment to answer was filed at the suggestion of the court in its oral ruling and consists of a denial; sets out an oral agreement between Flora B. Sallman and defendant; states that the agreement was that Flora B. Sallman did sign as surety for the payment of the principal amount of said obligation, and defendant signed as surety for the payment of the interest during the lifetime of Flora B. Sallman; and that it was further agreed that defendant should perform services for Flora B. Sallman, specifying such services including collection of Mrs. Sallman's rents and an-answering complaints of tenants, and the repair of Mrs. Sallman's real estate, and that the interest on the obligation was not in default; that Flora B. Sallman was not required to pay the principal part of said obligation during her lifetime; and that the principal should be paid from Mrs. Sallman's estate; that the Rasmussen note, dated July 5, 1943, was a renewal of a prior note and the contract between Mrs. Shallman and Mrs. Nickles was made at and before the time of the execution of the prior note.

The amendment sets out the performance of the obligations on the part of Mrs. Nickles; that the interest was kept paid during Flora B. Sallman's lifetime. The same allegations are made in the amendment as to the note to Judge Miles. The objections to the filing of the amendment were overruled by the court, and also the motion to strike, which overruling the defendant assigns as error.

Plaintiff argues that an amendment to an answer which sets up a new or independent action or cause of defense is not allowed under our statute. It was not necessary to file an amendment to conform to proof for the reason that the pleadings, even after certain parts of the defendant's answer were struck out by the court, still left sufficient allegations to warrant the admission of testimony as to a contract and agreement. In the original ruling on plaintiff's motion to strike all of paragraph 5 of Division I of defendant's answer, said paragraph 5 was as follows:

'She denies that the said note sued on in Court Two was signed by Coyna Nickles as surety as alleged in paragraph 2 of the petition and alleges that sh...