Hubbard v. Marsh

• Decision Date: 06 April 1948
• Docket Number: No. 47202.,47202.
• Parties: HUBBARD v. MARSH.
• Court: Iowa Supreme Court

239 Iowa 472

32 N.W.2d 67

HUBBARD

v.MARSH.

No. 47202.

Supreme Court of Iowa.

April 6, 1948.

Appeal from District Court, Dubuque County; J. G. Chalmers, Judge.

Appeal from an order holding oral evidence of an alleged oral agreement is not admissible.

Appeal dismissed.

O'Connor, Thomas & O'Connor, of Dubuque, for appellant.

Kenline, Roedell, Hoffman & Reynolds, of Dubuque, for appellee.

HAYS, Justice

This is a proceeding in equity whereby plaintiff asks for an accounting and judgment. Count I of the petition alleges an agreement, partly written, partly oral and under this agreement, claims a percentage of defendant's profits for the year 1947. Defendant, in answer to count I, states that the written agreement is clear, unambiguous and complete in itself. That any evidence offered in connection therewith would violate the parol evidence rule and that plaintiff is bound by the writing, as a matter of law. Other counts of the petition, not set forth in the record but conceded by counsel to exist and to involve an entirely separate matter, are not involved. The legal questions raised by the answer were submitted to the trial court, prior to a trial of the case, and on July 28, 1947 an order was made to the effect that ‘oral evidence of the alleged oral agreement is not admissible in the case.’ Plaintiff has appealed from the ‘order, ruling and decision herein under date of July 28, 1947.’ The record does not disclose any order of this court, or a justice thereof authorizing this appeal, and the question therefore is before us as to the jurisdiction of this court to entertain the appeal. While appellee has not filed a motion to dismiss, or otherwise raised this issue, the question must be determined, as jurisdiction may not be had through consent or much less, by mere silence on the part of appellee, if as a fact no jurisdiction exists. Green v. Ronen, 59 Iowa 83, 12 N.W. 765;City Council of Marion v. National Loan & Inv. Co., 122 Iowa 629, 98 N.W. 488;Smith v. Des Moines & Central Iowa R. R., 211 Iowa 223, 233 N.W. 57;Jensen v. Nolte, 231 Iowa 1103, 3 N.W.2d 140;Whittier v. Whittier, 237 Iowa 655, 23 N.W.2d 435.

The right of appeal is not inherent nor constitutional and may be granted or withheld by the legislature. Van Der Burg v. Bailey, 207 Iowa 797, 223 N.W. 515;In re Lytle Inv. Co., 219 Iowa 1099, 260 N.W. 538.Rule 1, Rules of Civil Procedure, provides: ‘These rules shall govern the practice and procedure in all courts of the State, * * *.’ That the rules have the force and effect of statute, see State, ex rel. McPherson v. Rakey, 236 Iowa 876, 20 N.W.2d 43;Stolar v. Turner, 236 Iowa 628, 19 N.W.2d 585;Phillips v. Catterson, 235 Iowa 715, 17 N.W.2d 517.

R.C.P. 105 provides: ‘The Court may in its discretion, and must on application of either party, * * * separately hear and determine any point of law raised in any pleading which goes to the whole or any material part of the case. It shall enter an appropriate final order before trial of the remaining issues. * * * If such ruling does not dispose of the whole case, it shall be deemed interlocutory for purposes of appeal.’ It was under this rule that the order appealed from, was entered. It is conceded by count 1 in oral argument that, irrespective of the question here raised, further and other counts of the petition have not been...