Jeffords v. Stockton

• Decision Date: 16 October 1962
• Docket Number: No. 50684,50684
• Citation: 117 N.W.2d 497,254 Iowa 273
• Parties: Clem JEFFORDS, Appellee, v. Frank L. STOCKTON, Thurman Mills and Lewis Small, Appellants, Mae Alberta Vining, Cross-Petition Defendant.
• Court: Iowa Supreme Court

Page 497

117 N.W.2d 497

254 Iowa 273

Clem JEFFORDS, Appellee, v. Frank L. STOCKTON, Thurman Mills and Lewis Small, Appellants, Mae Alberta Vining, Cross-Petition Defendant.

No. 50684.

Supreme Court of Iowa.

Oct. 16, 1962.

Brierly, McCall & Girdner, Newton, for appellants.

Harold Newcomb, Des Moines, and Ray Uhl, Mitchellville, for appellee.

Irish & Haughey, Altoona, for cross-petition-defendant.

PETERSON, Justice.

On August 12th, 1959, defendant on cross petition Mae Alberta Vining, gave a written option to defendant, Frank L. Stockton, to sell him a tract of land approximately 100 feet square in the town of Altoona, for $22,000. In the option Mrs. Vining retained ownership of the dwelling located on the tract of land. If the option was exercised, it provided she should remove such dwelling from the land within 45 days thereafter.

Defendant Stockton exercised the option, and on November 18th, 1959, Mrs. Vining executed and delivered a warranty deed conveying the tract of land to him.

September 16th, 1959, Mrs. Vining sold the dwelling house located on said land to plaintiff Clem Jeffords for $400. It was provided in the bill of sale conveying the house that Mr. Jeffords should remove the dwelling house or tear same down and remove material within 90 days from the date of the bill of sale.

I. Shorty after Mr. Jeffords bought the house it was agreed in verbal conversation between him and defendant, Frank L. Stockton that Mr. Stockton could use the dwelling on the property during the winter as a storage place for tools and as a warm place to which his workmen could go while the super market was being built on the remaining part of the real estate. The dwelling was located on the northwest corner of the tract and did not interfere with the part of the real estate on which the super market was being erected.

Mr. Stockton used the dwelling for several months until a sufficient part of the super market had been erected so they could use the super market building for such storage and shelter.

During March and early April, according to his testimony, Mr. Stockton had two or three conversations with plaintiff in which he told him that he was all though with use of the dwelling and Mr. Jeffords could remove it or tear it down at any time. Defendant stated plaintiff each time said he would take care of it in a few days.

On April 14th, 1960, defendant Stockton told plaintiff that he would have to have immediate removal of the dwelling. Plaintiff asked him if he filed a performance bond could he have until April 27th to remove it and defendant Stockton agreed. Plaintiff attempted to get a bond but was not able to secure it.

II. Immediately after April 14th defendant Stockton by his workmen proceeded to demolish the dwelling house. On April 20th plaintiff filed petition in this case for injunction against defendant and his workmen, who were the co-defendants Thurman Mills and Lewis Small, enjoining the tearing down of the dwelling house and removal of the lumber and material from the premises, and in the alternative suing for $10,000 damages, the alleged value of the dwelling house.

Plaintiff secured a temporary injunction and the wrecking or demolishing of the house was temporarily stopped. Shortly after the securing the injunction it was dissolved by mutual agreement of the parties.

Defendants then proceeded with the demolishing of the dwelling house and the record indicates that in course of time they fully wrecked and demolished the house and removed all lumber and material from the premises.

Defendants filed a motion to bring Mae Alberta Vining into the case as a cross petition defendant. The motion was sustained and defendant filed cross petition alleging that if there was any judgment in favor of plaintiff against defendants, such defendants should have judgment over against Mrs. Vining. Answers and replies were filed in due course.

III. November 20th, 1961, the case proceeded to trial in the District Court of Polk County and a jury was duly impanelled.

Plaintiff's evidence was offered and he rested. When plaintiff rested defendants filed motion for directed verdict. Mrs. Vining filed a motion to dismiss and also motion for directed verdict. The motions were all overruled by the trial court.

Defendants then offered their evidence.

When the case resumed trial on the third morning plaintiff filed a motion for a leave to dismiss. Defendants filed resistance to the motion. Defendants filed a motion to dismiss the cross petition.

In a colloquy between the trial court and the attorneys for plaintiff, defendants, and defendant on cross petition it was developed that both motions for dismissal were filed on the basis of dismissal without prejudice. The trial court then proceeded to make an order on the record that the motion of plaintiff and the motion of defendant Stockton as to the cross petition were both sustained.

In due course defendants appealed to the Supreme Court.

Defendants assigned two errors as basis for reversal. 1. The court erred in not directing a verdict for defendants at the close of plaintiff's evidence. 2. The court erred and abused its discretion in permitting plaintiff to dismiss his action without prejudice after all evidence had been offered, when no reasons were given by the court for such dismissal.

At any rate, discussion of Error No. 1 is moot. It would only have significance if we should reverse as to alleged Error 2. Affirming, we have no occasion to consider the action of the trial court as to motion for directed verdict. Bethany Cong'l Church v. Morse, 151 Iowa 521, 132 N.W. 14; Hawthorne v. Andrew, 208 Iowa 1364, 227 N.W. 402; Morrison v. Carroll Clinic, 204 Iowa 54, 214 N.W. 705; Joslin v. Continental & Commercial Nat. Bank, 213 Iowa 107, 238 N.W. 715.

IV. Prior to the Report of 1943 as to new rules, a case could be dismissed by plaintiff any time before final submission to jury or court. Under R.C.P. 215, 58 I.C.A. the trial court's consent is necessary.

The part of the rule pertinent to case...