Johanik v. Des Moines Drug Co.
| Decision Date | 06 February 1945 |
| Docket Number | 46669. |
| Parties | JOHANIK v. DES MOINES DRUG CO. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
R. O. Garber, of Des Moines, for appellant.
C J. Eller, of Des Moines, for appellee.
Plaintiff filed his petition at law in three counts. Each count alleges that on May 2, 1938, plaintiff and defendant entered into a written agreement, 'copy of which is attached and made a part hereof.' The written agreement provides that plaintiff and defendant were to operate defendant's farm of 614 acres in Polk county for five years from February 28 1939.
Count I of the petition further alleges that plaintiff is the owner of a balance of half of ten specified items for the year 1943, totaling $23,461.14, 'and in addition the sum of $___, an itemized statement of which plaintiff will set forth as soon as his counsel has opportunity to examine records in possession of defendant.' The ten items (we omit the total in dollars and cents of each item) are 38 head gilts @ $33.40, 14390# feeders @ 12¢, 1 Reg. hog, 16446 bu. ear corn @ 97¢, 230 bu. shelled corn @ $1.02, 520 bu. oats @ 72¢, 23 tons 410# bedding @ $10 per T, 94 tons 720# hay @ $23 per T, 56 tons 1400# hay @ $20, silage.
In addition to embodying a copy of the written agreement, Count II of the petition alleges that there is a balance due plaintiff of the approximate sum of $25,000 for 1939 to 1942 inclusive, 'an itemized statement of which will be set out as soon as the books of account are produced and examined for plaintiff'; that defendant agreed to deliver said books and records for examination but later refused to do so.
Count III of the petition, which is not directly involved in this appeal, purports to state a cause of action at law for fraud practiced by defendant upon plaintiff to his damage, both actual and exemplary, in the sum of $15,000.
The prayer of the petition is for judgment for $60,000.
Defendant moved to transfer Counts I and II to equity because they show upon their face: (1) The alleged causes of action have been settled and no relief is available to plaintiff until the settlement has been set aside and such relief can be had only in equity; (2) plaintiff and defendant entered into a contract of partnership or joint adventure on May 2, 1938, performance of which was entered upon and continued until termination of the agreement as of March 1, 1944, during which time mutual debits and credits in extended numbers have accumulated and the accounting thereunder can be had only in equity. This motion was overruled and defendant, pursuant to authority granted under Rule 332, Rules of Civil Procedure, has appealed from the ruling.
I. Counts I and II of the petition make no reference to the agreement of settlement upon which defendant relies in ground 1 of its motion. The sufficiency of these counts depends upon the allegations therein contained and the reasonable inferences therefrom. Defendant's motion cannot be aided by extrinsic matters not appearing on the face of these counts. Ground 1 of the motion is somewhat analogous to 'a speaking demurrer' and for that reason, if for no other, does not entitle defendant to the relief asked. See In re Estate of Rinard, 224 Iowa 100, 107, 275 N.W. 485; McAnulty v. Peisen, 208 Iowa 625, 627, 226 N.W. 144; Melvin v. Melvin, 198 Iowa 1283, 1288, 201 N.W. 7.
II. Plaintiff contends that the only remedy available to defendant for the improper joinder of a cause of action in equity with one at law is a motion to strike the cause improperly joined. Reliance is had upon section 10963, Code 1939, which provided:
Section 10964 provided, 'All objections to the misjoinder of causes of action shall be waived, unless made as provided in section 10963.'
If these statutes were still in force, plaintiff's contention would have merit. See Neidigh v. American Finance System, 219 Iowa 225, 228, 257 N.W. 563; Federal Surety Co. v. D. M. Morris Plan Co., 209 Iowa 339, 342, 228 N.W. 293; Campbell v. Spears, 120 Iowa 670, 675, 94 N.W. 1126. But sections 10963 and 10964 have been superseded by Rule 27(b), Rules of Civil Procedure, which provides:
* * *'
Prior to the taking effect of the Rules of Civil Procedure, it was improper to join a cause of action in equity with one at law. Section 10960, Code, 1939; Leekley v. Short, 216 Iowa 376, 383, 249 N.W. 363, 91 A.L.R. 394; Cooper v. Erickson, 213 Iowa 448, 452, 239 N.W. 87; Murphy v. Board of Supervisors, 205 Iowa 256, 260, 215 N.W.2d 744; Watt v. Robbins, 160 Iowa 587, 593, 142 N.W. 387. However, section 10960 has been superseded by Rule 22 which expressly authorizes the joinder of a cause in equity with one at law. Rule 22 provides:
'A single plaintiff may join in the same petition as many causes of action, legal or equitable, independent or alternative, as he may have against a single defendant.'
In view of Rule 22 the cases last above cited are no longer applicable. See Cook, Iowa Rules Civ.Proc., 50. Neither can it be said that the mere joinder of a cause in equity and one at law in favor of a single plaintiff and against a single defendant is an 'improper joinder of actions' under Rule 27(b) heretofore quoted. However, Rule 186 appears to have been adopted at least in part to meet a situation where there is a joinder of an action in equity and one at law. See Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83, 85, Augustus Hand, J. Apparently Rule 186 is based in part upon Code section 11437, which it supersedes, and upon Federal Rule 42(b), 28 U.S.C.A. following section 723c. Rule 186 provides:
Rule 186 confers ample authority upon a trial court to order trial as in equity of any equitable issues that arise in an action commenced at law. It has been said that the determining factors in the matter of granting separate trials under Federal Rule 42(b) are the doing of justice, the furtherance of convenience, and the avoidance of prejudice. Society of E. S. A. & C. v. W. C. A. U. Broadcasting Co., D.C.Pa., 35 F.Supp. 460, 461; Seagram-Distillers Corp. v. Manos, D.C.S.C., 25 F.Supp. 233, 234.
We deem it proper to say that where separate trials in one case are had, an attempt should be made to avoid duplication in time, effort or expense, and at a minimum of inconvenience to court, counsel, litigants and witnesses. In the federal courts, where part of the issues in a case are triable to a jury and part to the court, it has been held--we think properly--there should, where possible, be but one trial in which the jury is empaneled to hear and determine the jury issues and the court then proceeds to hear and determine the nonjury issues. Muncacsy v. Warner Bros. Pictures, D.C.N.Y., 2 F.R.D. 380; Elkins v. Nobel, D.C.N.Y., 1 F.R.D. 357. Doubtless in some cases the nonjury issues should first be heard.
It is apparent that defendant has proceeded in disregard of Rules 22 and 186. Its motion to transfer Counts I and II to equity does not specifically ask for separate trial in equity of these counts. For this reason, perhaps we would be justified in affirming the ruling below. We have concluded, however, that defendant's motion may fairly be treated as one asking for separate trial in equity of Counts I and II. If these counts state causes in equity, there is little doubt that defendant is entitled under Rule 186 to have them heard and determined by the court as equitable issues. It seems to be desirable to determine that question upon this appeal.
III. Defendant's theory, asserted in ground 2 of its motion, is that Counts I and II are triable in equity because they seek an accounting between joint adventurers. While these counts do not expressly state that plaintiff and defendant entered upon and continued the performance of the written agreement therein referred to, that is fairly to be inferred. The written agreement embodied in the petition covers ten pages of the record.
The agreement provides: First party (defendant) grants the right to second party (plaintiff) to occupy the 614 acre farm in question for five years from February 28, 1939; both parties are to have possession of the farm for the production and sale of various crops of grain and livestock; the kind of crops and the selection of that portion of the land to be used for each purpose to be agreed upon by the parties; the purchase and sale of all livestock, feed and farm products to be by first party (defendant); second party (plaintiff) to furnish all labor, work animals and farm machinery; the cost of various items such as electricity, seed, insurance, veterinary service and medicines, and taxes on cattle, to be divided equally; first party to be credited with the value of all grain and animals furnished by it; second party to be credited with the value of Guernsey cattle, not exceeding 25 in number, furnished by him; such values to be agreed upon by the parties and, if necessary, a third party selected by them; each party shall receive 4 1/2 per cent interest on the value of items so furnished; first pa...
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Johanik v. Des Moines Drug Co.
...235 Iowa 67917 N.W.2d 385JOHANIKv.DES MOINES DRUG CO.No. 46669.Supreme Court of Iowa.Feb. 6, Appeal from District Court, Polk County; Tom K. Murrow, Judge. Appeal by defendant from refusal to transfer to equity Counts I and II of plaintiff's petition. Reversed and remanded. [17 N.W.2d 387] ......