Gaynor v. Magoun

• Decision Date: 15 October 1940
• Docket Number: 45295.
• Citation: 294 N.W. 256,229 Iowa 134
• Parties: GAYNOR v. MAGOUN et al.
• Court: Iowa Supreme Court

294 N.W. 256

229 Iowa 134

GAYNOR v. MAGOUN et al.

No. 45295.

Supreme Court of Iowa.

October 15, 1940

Appeal from District Court, Woodbury County; Miles W. Newby, Judge.

Action in equity under the provisions of Sections 11815 to 11818, 1935 Code of Iowa. From an order overruling motion of plaintiff for continuance and dismissing petition, plaintiff has appealed.

Affirmed.

Ward R. Evans, of Sioux City, for appellant.

Gill & Gill, Corbett & Corbett, Stewart & Hatfield, and Milcrist & Marshall, all of Sioux City, for appellees.

HAMILTON, Justice.

There is but one error assigned-that of overruling plaintiff's motion for continuance and dismissing plaintiff's cause of action. The law governing a party's right to a continuance is well settled and requires no citation of authorities. A motion for a continuance is addressed peculiarly to the sound legal discretion of the court and will not be interfered with on appeal unless the Supreme Court is clearly satisfied that this discretion has been abused and injustice thereby done. With this rule in mind let us look at the situation presented by the record in this case.

In substance, the petition alleges that the plaintiff was bringing his action under the provisions of Sections 11815 to 11818, inclusive, of the 1935 Code of Iowa; that plaintiff was the owner and holder, by written assignment, of a judgment obtained by the receiver of a failed bank against J A. Magoun which judgment was obtained in the United States District Court, Northern District of Iowa, June 1, 1931; that execution had been issued and returned wholly unsatisfied that the banks named as defendants have certain monies, currency, stocks, bonds, notes, mortgages, certificates of indebtedness and other personal property, which is in their possession and which is, in fact, the property of J. A. Magoun; that all of the defendants have real estate standing in their names which is in fact the property of J. A. Magoun, and praying that title to said property be established in said J. A. Magoun, the judgment debtor, and plaintiff's judgment be established as a lien against said real estate and that execution issue for the sale of the same and for the sale of said personal properties as provided by law.

By way of answer, it is alleged that plaintiff's action was not commenced until the 6th day of September, 1939, which said action was prior thereto and is now barred by the special statute of limitations on judgments set out in Chapter 487-E1, 1935 Code of Iowa, and the bringing of said action is prohibited by the provisions of Sections 11033-e1 and 11033-g2 of said chapter and Code of Iowa for any purpose except that of offset; and demanding that the action be abated and plaintiff's petition be dismissed at plaintiff's costs.

To this answer, plaintiff made reply denying each and every affirmative allegation and specifically denying that plaintiff's action was barred and denying that a certain deed, referred to in the answer, was given as security for the note upon which the plaintiff's judgment is based and alleging the fact to be that the note was unsecured and was received by the receiver of said bank as an unsecured asset.

The record shows that the case was brought for the November, 1939, term and had been assigned for trial on or about the 14th day of November, but had been passed at the request of counsel for plaintiff until December 18, 1939, at two o'clock P. M., at which time the case came on for trial. A colloquy between the court and counsel immediately took place as follows:

" The Court: Proceed with the case.

Mr. Evans: If the Court please: Yesterday I informed Mr. Gill we would want Mr. Magoun as the first witness, so we will call Mr. J. A. Magoun.

Mr. Frank E. Gill: We stated what the situation was and the certificate from the physician may have been brought over by this time. Dr. Charley McHugh was to bring that over.

The Court: Well, the Court can see that after it is brought over.

Mr. Gill: I think we should have a little record. We contend that the only issue on which any evidence is competent here, whatever evidence may be offered by this plaintiff would have to be evidence on the issue as to the plea in abatement, raising the question of the Statute of Limitations. * * *

The Court: Any further evidence on the part of the plaintiff,

Mr. Evans: Let the record show that on Friday when this case was set for trial for 2 o'clock on Monday, that the attorney for the plaintiff informed counsel for the defendants that he desired the various defendants to be in Court, and especially J. A. Magoun, for the reason that he wished to take the testimony of J. A. Magoun as his first witness, as that is necessary to the proper presentation of his case, and he asks that he be presented in court.

Mr. Gill: The defendant resists any such request and asks that the counsel make a statement of what he expects to prove by J. A. Magoun that is competent or material or relevant to the issues on a hearing here bearing on a Plea in Abatement.

Mr. Evans: In reply to that we will say we expect to prove by the evidence of J. A. Magoun the material allegations of plaintiff's Petition.

Mr. Gill: Would the Court want to take up and hear any discussion of the law?

The Court: I want the plaintiff to proceed with his evidence, if he has any to introduce; that the Court is informed that J. A. Magoun never will be in a condition to give any testimony in this Court. When was this case assigned for trial?

Mr. Gill: It was set for trial November 14th or 15th, along in there.

The Court: This is the third time that this case has been before the Court the last few days, and the Court at the request and accommodation of the counsel for the plaintiff, because of the absence of counsel who was to assist him, continued the case to 2 o'clock this afternoon, at which time the counsel was informed that the case today would proceed on its merits, and according to what the Court has heretofore stated at this time the case will proceed to trial upon its merits. If counsel for the plaintiff has any evidence to introduce the Court will hear him, and if, after the evidence is introduced he thinks that in order to decide the case further evidence should be had, and the plaintiff desires to introduce further evidence, the case will be held open for that purpose, but under the circumstances he thinks this case should proceed to trial."

At this point, counsel for plaintiff strenuously protested, contending he was entitled to have J. A. Magoun as his first witness and asserting he was not incapacitated.

" The Court: Proceed with the case.

Mr. Gill: I think, your Honor, we might have this certificate of the doctor marked and made a part of the record concerning said J. A. Magoun's condition.

(Dfs.' Ex. ‘ 1’, Certificate of Dr. Charles McHugh; marked for the defendants.)

To all of which the plaintiff duly excepts."

Thereupon the plaintiff, without waiving any rights as to the objections made, called as a witness the son of J. A. Magoun who testified, in substance, that he was cashier of the Sioux National Bank when it closed December 6th, 1930; that his father was the president of the bank; that he did not know the contents of the safety deposit boxes in the bank standing in the name of J. A. Magoun or J. A. Magoun, trustee; that he knew of no real estate in Sioux City, Iowa, standing in the name of J. A. Magoun or J. A. Magoun, trustee; that he knew that J. A. Magoun gave a deed to the Sioux National Bank early in the 1920's for security on the note on which this action is based; (The deed was not recorded until some years later.) that he did not know why the deed was not filed for record until May 1, 1931; that the deed did not recite that it was given for security for " this" note; that it was a straight deed...