Frank v. Hollands

• Decision Date: 16 October 1890
• Parties: FRANK v. HOLLANDS ET UX.
• Court: Iowa Supreme Court

81 Iowa 164

46 N.W. 979

FRANK

v.HOLLANDS ET UX.

Supreme Court of Iowa.

Oct. 16, 1890.

Appeal from district court, Osceola county; C. H. LEWIS, Judge.

Action to recover the amount of a promissory note, and to foreclose a mechanic's lien. A decree was rendered in favor of plaintiff. The defendants appeal.D. D. McCallum, for appellants.

C. M. Brooks, for appellee.

ROBINSON, J.

The note in suit purports to have been given for $93.13 by defendant James Hollands. It was given for lightning-rods erected upon a dwelling-house owned by his wife and co-defendant, Hulda Hollands. Plaintiff asks judgment for the amount of the note against both of said defendants, and a foreclosure of a mechanic's lien on the building and land upon which it is located. The answer of Hulda Hollands is a general denial. James Hollands alleges in his answer that the note, as originally drawn and signed, was for $13, and that since it was made it has been changed, without his knowledge or consent, so as to appear to have been given for $93.13; that plaintiff is not an innocent purchaser for value; and that the note is the property of the original payees, Cole Bros. On a motion of James Hollands to transfer the cause, so far as it related to him, to the law side of the docket, it was “ordered that the question of fact could be submitted to the jury,” at his request. A jury was impaneled, and, after the evidence was introduced, it was required to answer three interrogatories. They answered, in substance, that the words “ninety-three,” which appear in the body of the note, were not written therein when it was signed by Hollands; that they have not been changed since they were written; and that the figures in the upper left-hand corner of the note, when first written therein, were “$13.13.” The plaintiff thereupon filed a motion for judgment on the special findings, and the motion was sustained. Additional evidence was offered on the issues presented by the answer of Hulda Hollands, and on the 23d day of March, 1889, judgment was rendered in favor of plaintiff, and against defendant James Hollands, on the note in suit, for $101.65, and costs; and in favor of plaintiff, and against defendant Hulda Hollands, for $93.13, and interest; and a mechanic's lien for the amount of the judgment against James Hollands established, and a sale of the premises ordered.

1. Appellee contends that the evidence introduced on the trial in the district court was not so preserved and made a part of the record as to authorize a trial de novo in this court of any part of the cause, and that as to appellant James Hollands the cause was tried in the court below as at law, and cannot be reviewed on errors assigned, so far as they are based upon the evidence. We do not understand from the record that the case, as to James Hollands, was treated and tried as an action at law; but rather that certain questions of fact were submitted to a jury for its determination. That practice was authorized by the Revision of 1860, and is in harmony with the earlier chancery practice. The verdicts of the jury were designed to inform the conscience of the chancellor, and might be followed or disregarded, as he deemed proper. McDaniel v. Marygold, 2 Iowa, 502; section 2999, Revision 1860. In such cases this court was not deprived of jurisdiction to try the cases de novo on appeal. Chambers v. Ingham, 25 Iowa, 225. But it was held in Hobart v. Hobart, 51 Iowa, 512, 1 N. W. Rep. 780, that the Code of 1873 so changed the practice as to require issues of fact in equitable actions to be tried by the court. The court below therefore erred in submitting any of the issues to a jury. But appellants do not complain of that action, nor do they complain that the cause, as to James Hollands, was not fully transferred to the law docket, and tried as an action at law. Although the court sustained the motion for judgment in favor of plaintiff and against James Hollands on the special findings, yet it is evident that the special findings alone did not warrant such a judgment; but that the special findings were considered in connection with the evidence...