Kellar v. Lindley
| Citation | 203 Iowa 57,212 N.W. 360 |
| Decision Date | 15 February 1927 |
| Docket Number | No. 37787.,37787. |
| Parties | KELLAR ET AL. v. LINDLEY. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Monona County; C. C. Hamilton, Judge.
Action to recover for a breach of warranty. The jury returned a verdict in favor of plaintiffs and defendant appeals. Affirmed.Prichard & Prichard, of Onawa, for appellant.
Bolter & Murray, of Logan, for appellees.
On the 16th day of April, 1920, appellant, Lindley, being then the owner in fee of a certain lot in the town of Little Sioux, conveyed the same by warranty deed to Catherine V. Kellar. This deed contained the usual covenants of warranty that the premises were free and clear of all liens and incumbrances, and a covenant to warrant and defend the title against the lawful claims of all persons whomsoever.
On June 9, 1922, the Heinrich Chemical Company commenced the foreclosure of a mortgage on said property. This mortgage was dated February 26, 1917, and due March, 1, 1918. Notice in that proceedings was served on Catherine V. Kellar and William A. Kellar, who were husband and wife. Whereupon it is claimed that by proper proceedings, D. H. Lindley, appellant, was vouched into said case, that he failed to appear and defend his title, judgment was rendered foreclosing the mortgage, and the same was sold on execution. To prevent the same from going to deed, William A. Kellar, as executor of the estate of Catherine V. Kellar, deceased, and on his own behalf as sole beneficiary of said estate, paid said costs and accrued costs, amounting to $325.79. He then brought this action against Lindley, alleging breach of the warranty and asking to recover the aforesaid amount, with interest, as provided by law.
[1] In the original petition filed by appellees, the pleading was indefinite as to just what was done about vouching Lindley into the foreclosure suit. An amendment was filed thereto which alleged an oral vouching. On the trial of the case, on ruling of the court that an oral vouching was not sufficient under the Iowa law, an amendment was made alleging that written notice was given to Lindley to appear and defend in the foreclosure case. Bitter complaint is made of this last amendment, because it is claimed it changed the issues in the case. The record, however, shows that, at the time this question was raised, the appellant was given opportunity to have the case continued if he so elected, but he elected to proceed with the trial. This gave appellant all he was entitled to under our practice.
[2] On the trial, after this amendment was filed, J. A. Murray, who was one of the attorneys for appellees, took the witness stand and testified to having written a letter to appellant in which he referred to the foreclosure suit and advised Lindley that he would expect him to defend the same. This testimony was objected to on the ground that, being an attorney in the case, he was incompetent to testify. Waiving the question of ethics of the profession, we have rather frowned upon this practice of attorneys testifying as witnesses in a lawsuit where they were engaged as counsel, but we realize that there are cases which arise when it becomes absolutely necessary for an attorney to testify. While condemning the practice, we have never held that it was error for the court to permit an attorney to testify. We have held that in a jury trial, where an attorney testifies, the court is warranted, if requested, in giving an instruction as to the weight and crediblity to be given to his testimony. The last time we had this question before us was in Waterman v. Bryson, 178 Iowa, 35, 158 N. W. 466, where we passed on this question and approved an instruction of this character.
[3] The question of whether the notice given was sufficient to vouch the appellant Lindley into the foreclosure case is discussed. Suffice to say that, under the circumstances in this case, it was a question for the jury, was submitted to the jury accordingly, and the jury found against appellant.
Other propositions, five in number, all surround or are involved in the question as to the admissibility of the judgment entry and record in the foreclosure case, and, if it should be held that such record were properly admitted in evidence, then there is nothing left in the contention of appellant in these propositions.
[4] Appellant Lindley having been properly vouched into the foreclosure case, he is bound by the record made in that...
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