Finnerty v. Shade
| Decision Date | 21 January 1930 |
| Docket Number | 39878 |
| Citation | 228 N.W. 886,210 Iowa 1338 |
| Parties | ED FINNERTY, Appellee, v. CHARLES SHADE, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 23, 1930.
Appeal from Lyon District Court.--B. F. BUTLER, Judge.
Action at law, to recover of the defendant an alleged balance due on the purchase price of a mortgage. The answer was, in legal effect, a general denial. It purported also to set forth the real contract under which the mortgage was purchased. Trial to a jury and verdict for the plaintiff, and judgment was entered thereon. From this judgment the defendant has appealed.
Affirmed.
E. C Roach, for appellant.
Fisher & Riter, for appellee.
The action was brought in March, 1927, by Ed Finnerty, who died on May 16th of the same year. Thereafter, his administrator was substituted as plaintiff. He averred, in substance, that, on April 7, 1923, he sold to the defendant, Shade, a certain $ 19,000 mortgage, at the agreed price of $ 13,000; that of such price he received the sum of $ 10,000, and no more; that Shade purported in the transaction to represent himself and one Harrison, who with Shade was a joint owner of the farm covered by the mortgage in question; that $ 7,000 of the purchase price was to be paid by the cancellation of two notes, amounting to $ 7,000, of which notes the plaintiff was maker, and the defendant, or his bank, was payee; that the balance, of $ 6,000, was to be paid by Shade or Harrison, "his co-owner;" that Shade did pay the sum of $ 3,000, and did say that Harrison would pay the remaining $ 3,000; that the plaintiff did then and there deliver said mortgage to said Shade, duly assigned to the First National Bank, of which Shade was president.
The answer of the defendant comprised a general denial, and specifically denied that the purchase price was to be the sum of $ 13,000. On the contrary, it was averred that the purchase price was to be $ 10,000, and that the same was then and there fully paid; that Harrison had no interest in the transaction, and was never mentioned therein. Such is the substance of the pleadings.
The evidence for plaintiff tended to show facts which may be briefly summarized as follows:
On March 1, 1919, the plaintiff conveyed a farm in Lyon County to one McLaughlin, and took back a purchase-money mortgage for $ 19,000, due in ten years from date, at 5 per cent interest, payable annually. The defendant was president and active manager of the First National Bank of Rock Rapids, and was likewise president of the Farmers National Bank of Inwood and the Savings Bank of Larchwood. Sometime after March, 1919, the defendant, Shade, and one Harrison became the joint owners, by purchase from McLaughlin, of the farm covered by the plaintiff's mortgage, which mortgage was assumed by the grantees in their deed. About 1921, the plaintiff became indebted to the defendant, Shade, or to the First National Bank, in the sum of $ 7,000, represented by two notes. He put up his $ 19,000 mortgage as collateral security therefor. In April, 1923, the plaintiff's notes became due, and payment was requested. They were then held by the Larchwood and Inwood banks. These were the immediate circumstances which led up to the transaction of April 7, 1923. The vital dispute between the parties is whether the purchase price of the mortgage was to be $ 13,000 or only $ 10,000. The mortgage was concededly good, and would be worth par on the date of its maturity. The only fact that depreciated its present value was the remoteness of its due date and its low rate of interest. The appellant has assigned several errors, some of which we deem minor ones. We think the one debatable question presented is whether the defendant was entitled to a directed verdict on his motion therefor at the close of all the evidence. Before taking up the discussion of that question, we will first dispose of the other alleged errors assigned.
I. At the time of his death, the original plaintiff was a resident of Sioux Falls, South Dakota. He left surviving him his widow and his son, Tom Finnerty, as his only adult survivors. Upon the application of the widow, the son, Tom, was appointed administrator of the estate of the deceased in Lyon County, Iowa. Thereupon, on motion, he was substituted as plaintiff in this action by order of the court. No resistance was offered to such substitution. After the substitution, however, the defendant moved to dismiss this action on the ground that the clerk of the district court had no power to appoint a nonresident as administrator of the estate. The motion, unverified, was submitted to the court upon its own averments, without other proof. It did, however, contain the following reference:
"The court is referred to the pretended appointment of the said Tom Finnerty in the matter of the estate of Ed Finnerty, being Probate No. 1505."
The court overruled the motion. The ground of the ruling does not appear. What facts were disclosed by the probate record referred to in the motion is not disclosed in this record. In argument here, the appellant contends that the clerk had no jurisdiction to appoint a nonresident as administrator, and that, therefore, the appointment was void. The appellant purports to rely for authority upon Knight v. Moline, E. M. & W. R. Co., 160 Iowa 160, 140 N.W. 839; McClure v. Bates, 12 Iowa 77. These cited cases do not sustain the appellant's position. They go only to the proposition that a foreign administrator cannot ordinarily sue in the courts of this state unless he be appointed in this state pursuant to our statute, Section 11894, Code, 1927. In the Knight case, cited, we did in fact allow a foreign administrator to maintain his action notwithstanding that he had not been appointed in this state. We need not stop to consider the reasons for that particular ruling. The son, Tom Finnerty, is not a foreign administrator. He was appointed in Lyon County, Iowa, either by the clerk or by a judge. Argument is predicated upon the fact of his nonresidence and upon the contention that the clerk had no power to appoint a nonresident. This argument is apparently predicated upon Section 11832, which affirmatively confers power upon the clerk to appoint "resident administrators." The argument seems to contend for an implication that the conferring of power to appoint "resident administrators" implies a prohibition against the appointment of a nonresident as administrator. It is urged in argument that only the court, and not the clerk, can appoint such. If this be so the question is disposed of by Sections 11834 and 11836, whereby the clerk's order, in the absence of contest by a party aggrieved, becomes the full equivalent of an order by the court itself. Moreover, Section 11893 provides for administration to be "granted to any suitable person or persons."
Sufficient to say that there is no lack of power in the court to appoint a nonresident as an administrator in this state. Whether, in a given case, nonresidence be an influential fact, which should operate against the appointment, is a question to be determined always in the particular case. It may be added, furthermore, that the appellant had no standing as an aggrieved party by reason of the appointment made. He was not a beneficiary of the estate, and had no interest therein. Chicago, B. & Q. R. Co. v. Gould, 64 Iowa 343, 20 N.W. 464; In re Estate of Stone, 173 Iowa 371, 155 N.W. 812. We find no merit in appellant's contention at this point.
II. In this division we shall consider together two assignments of error. The first relates to the allowance of leading questions propounded to the original plaintiff, as a witness and the other relates to the introduction of the testimony of the widow of the decedent to the circumstances attending the taking of his testimony. It appears that the plaintiff, at the time of bringing his action, was suffering from a serious malady, which resulted in his death a few weeks later. It was desired by his counsel to obtain his testimony. A stipulation was entered into for the taking of the same in the form of a deposition. It was agreed in the stipulation that all questions and answers should be subject to the same objection as if the witness were present in court upon the witness stand. The testimony of the plaintiff, as it appeared in such deposition, was unsatisfactory on its face; sentences therein were broken and unfinished; and several leading questions appeared therein, to which answer had been given by the witness. When the deposition was offered upon the trial, appropriate objections were interposed, including objections to leading questions. Thereupon, counsel for the plaintiff asked leave of the court to introduce testimony as to the circumstances under which the deposition was taken. This was permitted by the court, and such was taken before the court ruled upon the objections to leading questions. The evidence thus introduced simply disclosed the fact that the witness, though alert mentally, was very weak physically, and that he gave his testimony with difficulty. The facts thus disclosed were such as would have come under the observation of the court if the witness had been testifying in court. The facts which might thus be observed by the court were proper for its consideration in exercising its discretion as to the allowance of leading questions. We think it was fairly within the discretion of the court to permit the showing. There was nothing inflammatory in the testimony, and no fact disclosed which could fairly prejudice a jury. We think the court acted within its proper discretion, both in receiving the...
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