Fisher v. McCarty
| Citation | 195 N.W. 608,197 Iowa 369 |
| Decision Date | 13 November 1923 |
| Docket Number | 35326 |
| Parties | GIDEON W. FISHER, Appellant, v. GEORGE F. MCCARTY, Appellee |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED FEBRUARY 16, 1924.
Appeal from Mahaska District Court.--D. W. HAMILTON, Judge.
ACTION at law, to recover a sum of money claimed to belong to plaintiff and to be in the hands of the defendant. The cause was tried to the court without the intervention of a jury and judgment was rendered for the defendant. Plaintiff appeals.
Affirmed.
L. T Shangle and D. C. Waggoner, for appellant.
T. J. Bray, for appellee.
This appeal is prosecuted with little regard to the rules of this court. It is scarcely possible that our observations respecting Rule 53 in Reynolds & Heitsman v. Henry, 193 Iowa 164, 185 N.W. 67, have been unnoticed by counsel for appellant. In State v. Wallack, 193 Iowa 941, 188 N.W. 131, we said:
See, also, Riggs v. Hatfield, 187 Iowa 685, 174 N.W. 353; Pascoe v. Chicago, B. & Q. R. Co., 187 Iowa 987; Wine v. Jones, 183 Iowa 1166; Stilwell v. Stilwell, 186 Iowa 177, 172 N.W. 177.
The appellant, by reply brief, attempts to supply omissions in his original argument, as to brief points and propositions. Rule 53 requires that the original brief of appellant shall set out the errors relied upon for reversal and the brief points and propositions, and provides that no alleged error or point not contained in this statement of points shall be raised afterward by reply brief or in oral or printed argument. The case must be disposed of, under this rule, on the grounds selected by appellant in his original presentation of the case. Richardson v. City of Centerville, 137 Iowa 253, 114 N.W. 1071; State v. Thomas, 173 Iowa 408, 155 N.W. 859; Dodge v. Grain Shippers' Mut. Fire Ins. Assn., 176 Iowa 316, 157 N.W. 955; Floyd & Newland v. Serenado Mfg. Co., 196 Iowa 6, 193 N.W. 581.
In December, 1919, appellant and one Leatherman held a public sale of personal property. A portion of the property sold belonged to appellant personally, a part of it belonged to Leatherman, and a part was owned by said parties jointly. The appellee was at said time the cashier of a bank, and was employed by the parties to act as clerk of said sale, and did so act. He took into his possession the proceeds of the sale, and, as we understand the record, they were deposited in the bank to the credit of Leatherman. Thereafter, the parties met for an accounting and settlement in respect to the proceeds of the sale. The net amount ascertained to be due appellant, after making proper adjustments with Leatherman, was the sum of $ 1,434.05. At the conclusion of said settlement, Leatherman delivered to appellant his check for the said sum of $ 1,434.05, drawn on the bank of which appellee was cashier. This was after banking hours. Before the bank in which appellant had deposited the check presented it for payment, Leatherman had stopped payment on the same, by notice to the bank, and appellant was notified that payment had been stopped. It also appears that some question had arisen in the meantime in regard to a claim which Leatherman asserted against appellant, which was not involved in the matters growing out of the public sale or settlement thereof. It appears that at said time Leatherman had on deposit in the bank on which the check was drawn an amount in excess of the sum specified in the check. Shortly after payment on the check had been stopped, appellant called upon appellee in regard to said matter, and was then informed that payment on the check had been stopped by Leatherman. There was some discussion at the time between the parties relative to the holding of the money in the bank, pending an attempted settlement between appellee and Leatherman. The check which Leatherman had drawn was left with appellee at the time, and appellee at said time executed and delivered to appellant a written instrument, reciting as follows:
About a week later, appellant again called on appellee, and at said time was informed by appellee that he did not desire to attempt to hold the money any longer, and that, if appellant and Leatherman did not effect a settlement, he would not attempt to hold the money beyond the 9th of January, 1920. Nothing further appears to have been done by any of the parties, and Leatherman in due time, and after January 9, 1920, checked out his account. About a year later, appellant instituted this action, seeking to recover from appellee the said sum of $ 1,434.05.
The appellee filed an answer to the petition on April 16, 1921. The cause was called for trial on March 10, 1922. On March 14, 1922, appellee filed a "substituted answer to meet the proof." On March 20, 1922, appellant filed a motion to strike the said substituted answer. The court overruled said motion to strike, and on March 23d, appellant filed his "reply to defendant's substituted answer to meet the proof."
It is the general and well established rule that the courts in this state are very liberal in allowing amendments to pleadings, especially so where no substantial change is made in the issues, and where the amendment is proper to conform the pleadings to the proof offered. Blandon v. Glover, 67 Iowa 615, 25 N.W. 830; Farmers Mercantile Co. v. Farmers Ins. Co., 161 Iowa 5, 141 N.W. 447; Pace v. City of Webster City, 138 Iowa 107, 115 N.W. 888. It is a matter resting largely within the discretion of the trial court.
We find no error on the part of the court in permitting the filing of said substituted answer.
The grounds of the motion to strike the amendment were...
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