Gulliher v. C., R. I. & P. R. Co.

• Decision Date: 04 October 1882
• Parties: GULLIHER v. C., R. I. & P. R. CO
• Court: Iowa Supreme Court

13 N.W. 429

59 Iowa 416

GULLIHER v. C., R. I. & P. R. CO

Supreme Court of Iowa, Davenport

October 4, 1882

Appeal from Lee Circuit Court.

THIS is an action to recover for a personal injury received by the plaintiff while in the employment of the defendant and engaged in coupling cars. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals. The facts appear in the opinion.

REVERSED.

Anderson Bros. & Davis and M. A. Low, for appellant.

Dryden & Dryden and Hagerman, McCrary & Hagerman, for appellee

OPINION

ROTHROCK, J.

I.

During the progress of the trial numerous exceptions to the rulings of the court were entered at the instance of the defendant. These exceptions were principally made to the refusal by the court to give instructions to the jury. The verdict was returned on the 21st day of June, 1881, and judgment was entered on the same day. There is no formal exception entered at the end of the judgment entry. On the 24th day of the same month, the defendant filed a motion for a new trial which set out the errors complained of pending the trial, and also the objection that the verdict was not sustained by sufficient evidence, and was contrary to law. This motion was overruled on the 27th day of June, and the defendant excepted to the ruling at the time. The body of the notice of appeal is in these words: "You are hereby notified that defendant in the said action has appealed from the judgment of the Circuit Court aforesaid, in favor of plaintiff, at the June term, 1881, on the 21st day of June, 1881, to the Supreme Court of Iowa and that said appeal will come on for hearing and trial at the regular term of said court to be held at Des Moines commencing on the first Monday of June, 1882."

The plaintiff by a motion seeks to have all the instructions to the jury, including those given and refused, and the assignments of error, and other parts of the record objected to by appellant, stricken from the record, because the notice of appeal is not sufficient to bring up any ruling except the judgment entry. In other words, it is claimed that the appeal has not been taken from any ruling or act of the court excepting the entry of judgment. It is further claimed that no appeal will lie from the judgment because it was not excepted to.

These objections to the standing of appellant in this court are urged at length and with great earnestness, and reliance is placed on section 3178 of the Code which is as follows:

"An appeal is taken by the service of a notice in writing on the adverse party, his agent or attorney who appeared for him in the court below, and also upon the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defining such part."

It is argued that, as the appellant in its notice defined the judgment as the part appealed from, it cannot be heard to complain of any other part of the proceedings, and, as he did not except to the judgment, it cannot be heard to complain of that. It is urged that the appellant should have stated in the notice that it appealed from the "proceedings," and that the use of the word "judgment" instead is not sufficient. It appears to us that this is a very technical view to take of the statute. We have no disposition to go into nice technical distinctions as to the meaning of the word "proceedings". If we were to hold that a notice in the form of that found in the record in this case does not bring up all of the objections properly saved upon the trial of the case, including the motion for a new trial, we would surprise the profession throughout the State, and, no doubt, with one dash of the pen, dispose of about nine-tenths of the appeals now pending for submission in this court.

It remains to be determined, so far as this question of practice is involved, whether the appellant has lost all right to complain of the judgment because no exception was noted thereto at the time it was entered. The verdict was found June 21st, and judgment was entered the same day. The defendant, as was its right, filed its motion for a new trial within three days. Code, § 2838. It had this right, no matter what judgment had been entered up in the meantime. This motion for a new trial, and to set aside the verdict, set forth fully the errors complained of. It was as much an attack on the judgment as on the verdict, for the former could have no validity without the latter. If the motion had been sustained, the judgment would have gone with the verdict. But the motion was overruled, and to the ruling defendant excepted. That is, the exception was to the ruling denying a new trial. This was a sufficient exception to the judgment.

In Aldrich v. Price, 57 Iowa 151, 9 N.W. 376, we held that, where a motion in arrest of judgment was overruled and the ruling excepted to, it was unnecessary to except to the judgment afterwards rendered. And in Barnhart v. Farr, 55 Iowa 366, 7 N.W. 644, where no exception was taken to the judgment, we held that an exception taken to the conclusion of law upon which the judgment was founded was sufficient.

We are cited by counsel for appellant to Eason v. Gester, 31 Iowa 475; Joliet Iron & Steel Co. v. C. C. & W. Railway Co., 50 Iowa 455; Redding v. Page, 52 Iowa 406, 3 N.W. 427; and other cases which, it is claimed, hold that the judgment entry must be excepted to. An examination of those cases will show that they are unlike the case at bar. None of them determine the effect of an exception to the overruling of a motion for a new trial where a judgment has been actually entered after verdict and before the motion is made.

II. The defendant in its answer set up as a settlement of the cause of action an instrument in writing in the following language:

"K. & D. M. DIVISION.

"Name, John G. Gulliher, Keokuk. For the consideration of $ 104.68 received of the Chicago, Rock Island & Pacific Railroad Co., I hereby release and discharge said company from all claims and demands against it, and especially from all liability for loss or damage to me by reason of having my thumb and two fingers on left hand crushed while coupling cars in yard at Keokuk station (which necessitated the amputation of said thumb and two fingers), which occurred on or about the third day of March, A. D. 1879.

"Received payment, Keokuk, Iowa April 30, 1879.

"Keokuk Division. "JOHN G. GULLIHER [L. S.]"

Examined and correct,

C. F. WINSLOW, Auditor.

F. K. HAIN, Approved.

A. KIMBALL, Gen'l Sup't.

The above was read to and signed by the said John G. Gulliher in our presence, at Keokuk, on the 30th day of April, 1879.

W. K. LUCAS.

C. H. HAIN.

The plaintiff replied to the plea of settlement by averring in substance that a paper which purported to be a receipt, but which he supposed to be a receipt for time lost, was obtained from him, but that it was obtained through fraud and misrepresentation. The reply does not set forth in what the fraud and misrepresentation consisted. The court gave to the jury the following among other instructions upon this branch of the case:

"13. The defendant pleads a settlement in full with the plaintiff for the injury complained of, and sets out a copy of the contract of settlement and receipt relied upon in his answer plaintiff does not deny the genuineness of the signature under oath thereto, and it must in law be deemed genuine and admitted, and the burden of proof rests upon plaintiff to show that it was procured by fraud. If he has not so shown, your verdict should be for the defendant.

"14. If the jury find from the evidence that plaintiff signed the receipt in evidence by reason of the fraud of the managers of the defendant, who by fraud and artifice induced him to believe that it related only to money due him for time lost, and that it had nothing to do with his claim for damages sued...