Henry v. Henry

• Decision Date: 07 February 1922
• Docket Number: No. 34185.,34185.
• Citation: 186 N.W. 639,192 Iowa 1346
• Parties: HENRY v. HENRY.
• Court: Iowa Supreme Court

192 Iowa 1346

186 N.W. 639

HENRY

v.HENRY.

No. 34185.

Supreme Court of Iowa.

Feb. 7, 1922.

Appeal from District Court, Mahaska County; Chas. A. Dewey, Judge.

January 23, 1917, plaintiff filed her petition in two counts. The petition alleges that she was married to Jeff J. Henry, in June, 1914. The first count alleges that in November, 1915, plaintiff's husband deserted her, and that prior thereto the defendant had alienated his affections. The means employed are stated in detail. These are stated to be that defendant poisoned her husband against plaintiff by calling her names, making charges against her, and so on. The second count charges that defendant committed different assaults upon plaintiff, one with a gun July 5, 1914; another May 23, 1915; another in June, 1915; others in March, May, August, and November, 1916. Two days after this suit was brought, plaintiff also brought an action for damages against Augusta L. Ellis, in two counts. The first count charged that about November, 1916, said defendant Ellis committed an assault and battery upon plaintiff with her fists and with a hoe. The second count alleges that about the month of July, 1914, and at other times, said defendant Ellis, by means therein described, alienated her husband's affections. While the means employed are similar to those set out in the instant case, the epithets used were not the same. It is not claimed in either petition that the defendant in the instant case, and the defendant Ellis, in the other case, were acting in concert, or jointly. The instant case was tried to a jury, which resulted in a verdict and judgment for plaintiff in the sum of $1,250. The judgment was entered February 28, 1919. It is contended by appellant, and we so understand the record, that such recovery was solely on the count charging alienation. The case was appealed to this court and affirmed. Henry v. Henry, 179 N. W. 856. Before the petition for rehearing was filed, and on December 20, 1920, the other case, Henry v. Ellis, was settled by the payment to plaintiff, by Ellis, of $150, under a written stipulation which reads in this wise:

“It is hereby stipulated by and between the parties in the above-entitled case that the same is hereby settled in full of all damages arising or growing out of the things alleged in said petition for the sum of $150, the receipt of which is hereby acknowledged and accepted by the plaintiff.”

The title of the case is stated in the settlement, and is signed by plaintiff and Ellis. The settlement does not specify whether the $150 was paid for the alleged alienation by Ellis or for the assaults. Both counts were pending in the Ellis Case at the time of the settlement, and the written stipulation recites that it is to settle all matters growing out of the things alleged in the petition. After the instant case was affirmed by the Supreme Court, the defendant in the instant case brought an action in equity to enjoin plaintiff from enforcing the judgment, and at the same time filed a motion to discharge the judgment. The injunction suit and the motion were based upon the proposition that the settlement of the Ellis Case was a settlement and discharge of the judgment obtained in the instant case, because the matters set up in both cases were the same joint tort, and that the settlement of the Ellis Case satisfied and discharged the recovery in the instant case. The trial court denied the injunction, and from such decision the defendant has not appealed. The trial court overruled defendant's motion to discharge the judgment, and from such ruling the defendant appeals.

Affirmed.Malcolm & True and L. T. Shangle and D. C. Waggoner, all of Oskaloosa, for appellant.

Reynolds & Heitsman and McCoy & McCoy, all of Oskaloosa, for appellee.

PRESTON, J.

1. In appellee's resistance to defendant's motion, numerous grounds are set up and are argued at some length on this appeal. Among such objections, it is claimed that some of the attorneys for Ellis, who were also attorneys for the defendant herein, misled plaintiff's attorneys by promising that, if the settlement of the Ellis Case was made, the $1,250 judgment would be paid off, and that no petition for rehearing would be filed in the Supreme Court; that, contrary to such agreement, appellant did file a petition for rehearing, and plaintiff was put to expense in resisting the same, and attendance in the Supreme Court, and that thereby the appellant is estopped from maintaining its motion to discharge. Appellees contend further that by reason of the matters just referred to a fraud, at least in a legal sense, was practiced upon the plaintiff. Appellant says in reference to this that she was not a party to the settlement, and that, if any such promises were made by her attorneys, it was without authority from her, and that she is not bound thereby. Appellee also says that it was not the intention of plaintiff to discharge the judgment in the instant case by the settlement of the Ellis Case, and, further, that it was not the same joint tort.

[1][2][3] Appellant contends that the principal point in the case is whether the two actions were for the same joint tort. If it be held that they are not so, then it is unnecessary to consider the other questions argued by appellee, or other errors assigned by appellant. Such other assignments of error relate more particularly to the admission of evidence of the five or six attorneys who testified in regard to the negotiations, discussion, and settlement of the Ellis Case. This evidence, for the most part, went in without objection, but some objections were made, and some motions made to exclude, but as to these there were no rulings by the court, and it does not appear that appellant requested the court to rule. This being so, appellant may not complain thereof. Appellant contends that alienation, like trespass, is a complete and inseparable condition. They cite Snyder v. Telephone Co., 135 Iowa, 215, 226, 112 N. W. 776, 14 L. R. A. (N. S.) 321;Miller v. Beck, 108 Iowa, 575, 582, 79 N. W. 344;Bank v. Aldrich, 153 Iowa, 144, 133 N. W. 383, to the proposition that if the sum total of the efforts of all resulted in such wrong, then all were joint tort-feasors, and that a full settlement of the claim with one joint tort-feasor extinguishes any right of action against others, against whom an action might have been brought. Appellee does not quarrel with these rules. The rule is recognized in our later cases. Ryan v. Becker, 136 Iowa, 273, 111 N. W. 426, 14 L. R. A. (N. S.) 329;Middaugh v. Ice Co., 184 Iowa, 969, 975, 169 N. W. 395, where it is held that the transaction in regard to the alleged release is open to explanation, and that parol evidence is admissible to show that the defendant and the third person who had been released are not joint tort-feasors,...