Hollen v. Davis
| Decision Date | 05 October 1882 |
| Citation | 13 N.W. 413,59 Iowa 444 |
| Parties | HOLLEN v. DAVIS ET AL |
| Court | Iowa Supreme Court |
Appeal from Tama Circuit Court
ACTION upon a promissory note originally commenced before a justice of the peace where a judgment was rendered for plaintiff; on appeal by defendants to the Circuit Court a like judgment was rendered and defendants now appeal to this court. The facts of the case appear in the opinion.
REVERSED.
Stivers & Louthan and C. B. Bradshaw, for appellants.
Struble & Kinne and O. H. Mills, for appellee.
I.
This action was brought before a justice of the peace upon a promissory note indorsed to plaintiff in the following form and language:
The defendant Davis, the maker of the note, accepted service of the notice of the action before the justice, and assented "that the justice have jurisdiction to try the suit to the amount of two hundred and fifty dollars."
The defendant failed to appear to the action before the justice and judgment was rendered against him by default for two hundred and fifty dollars and costs. From this judgment defendant appealed to the Circuit Court.
By leave of the Circuit Court, defendant filed an answer and counter-claim, and afterwards plaintiff, by leave of the court, filed what is called an amended petition, setting out the note and showing that it was transferred to plaintiff who is now the holder thereof, and alleging that the amount for which the note was intended to be executed, two hundred dollars, is not expressed in the body of the note, being omitted through mistake in failing to fill up the blank, and that it was the mutual agreement and understanding of the parties that the note should be so written as to express the agreement to pay two hundred dollars. The amended petition prays that the note may be reformed and corrected by inserting the words "two hundred" in the body of the note in the proper blank, and that judgment for the sum of $ 350 be rendered in this case.
A motion to strike the amended petition on the ground that it presents a cause of action in equity, and no such claim was made before the justice, was sustained. Thereupon the cause came on for trial and plaintiff offered the note in evidence. Objection thereto on the ground that the instrument is not a promissory note, is not described in the notice of the action of the justice's court, and does not contain a promise to pay any sum of money, was overruled, and the note was admitted. The defendant thereupon withdrew his counter-claim.
The plaintiff testified, in substance, it was the intention of the parties that the note should call for $ 200, and the proper words expressing that amount were not written through oversight and mistake. This evidence was objected to by defendant. The plaintiff was permitted to file an amended petition which is in the same language as the amended petition stricken from the files. To the filing of the pleading objection was made on the ground that it introduces a new demand in the action which is exclusively cognizable in a court of equity. The objections were overruled and the cause was continued at the costs of defendants. At the next term the defendants moved to strike the amended petition for substantially the same reasons that were assigned as objections to filing it. The motion was overruled. Upon evidence showing it was the intention of the parties that the note should call for $ 200, judgment was entered reforming it to correspond with such intention, and judgment was rendered against defendant and his sureties upon the appeal bond for $ 327.38. The sureties upon the appeal bond unite with defendant in the appeal.
II. The figures in the margin...
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