Folsom v. Grove

• Decision Date: 19 October 1943
• Docket Number: 46327.
• Citation: Folsom v. Grove, 233 Iowa 1140, 11 N.W.2d 368 (Iowa 1943)
• Parties: FOLSOM v. GROVE.
• Court: Iowa Supreme Court

11 N.W.2d 368

233 Iowa 1140

FOLSOM v. GROVE.

No. 46327.

Supreme Court of Iowa

October 19, 1943

Leslie E. Francis, of Des Moines, for appellant.

Grimm Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellee.

SMITH Justice.

It is difficult to determine satisfactorily just what record was before the district court. We have "Appellant's Abstract of Record," "Appellee's Denial of Abstract of Record and Amendment Thereto," and "Appellant's Denial of Appellee's Amendment."

Upon our order the clerk of the district court has certified to us "a true copy of the Court files *** which file includes a so-called transcript from the Justice of the Peace Court ***." This latter language of the clerk's certificate evidently refers to a "Return on Writ of Error" signed by the justice. This "Return" seems to have been prepared by someone else for the justice's signature. It is typewritten but has been changed by hand-written interlineations and pen and ink deletions, presumably made by the justice before he signed it. It is not self-explanatory but refers to the thirty paragraphs of the "application for writ of error," copy of which was served on the justice with the writ. This copy of the "application" is also marked and corrected in a quite unintelligible manner and the references in the "Return" to the paragraphs of the "application" are not always self-explanatory.

The net result is that our own statement of the record may leave much to be desired in the matter of exactness. However, we have conscientiously sought to find out just what was or should have been reviewed by the district court.

The clerk's transcript shows that plaintiff-appellee filed a verified "Motion to Dismiss and Resistance to Writ of Error" which purports to set out testimony not contained in the justice's return. The transcript also shows a "Motion to Strike Plaintiff's Affidavit" based on the proposition that the cause must be "determined solely upon the return of the Justice filed herein." We are not told what the district court did with this motion.

Plaintiff's action was upon a promissory note. The sole defense was a plea of payment based upon a transaction in which defendant quitclaimed to plaintiff his home in Spirit Lake. Plaintiff was not present when the deed was executed and had no personal contact with defendant in the negotiations which led to its execution. Both parties seem to have depended on plaintiff's father (who was also defendant's father-in-law) as an intermediary. Defendant claims the deed was given not only in satisfaction of a mortgage on the premises held by plaintiff but also in consideration of a cancelation of the note in question here (which was unrelated to the mortgage) and a payment by plaintiff of some small debts owing by defendant to others.

Defendant's testimony, as returned by the justice, is as follows:

That he owed the bank at Spirit Lake by mortgage upon his said home which mortgage became due and payment was demanded; that plaintiff's father, one Frank Folsom, advised defendant that plaintiff would make a loan upon said home in amount sufficient to cover said indebtedness and that said loan was duly made; that when it became due defendant was still unable to pay the same and that plaintiff's said father advised him that plaintiff demanded a deed of said home or would foreclose; that after some negotiations it was agreed that defendant would execute the said deed if plaintiff would pay three certain items of indebtedness of defendant, towit, one of $6 or $8 to the telephone company, another of similar amount to the electric light company and a grocery bill of about $180 and in addition thereto would cancel the note herein sued upon; that said matter was fully discussed between plaintiff's father and defendant and later defendant was taken by plaintiff's father to H. E. Narey an attorney at law in Spirit Lake, to whom the understanding relative to said three items and said note was repeated; that said Narey then prepared the said deed and same was signed and acknowledged by defendant and his...