Kennedy v. Roberts
| Decision Date | 18 May 1898 |
| Citation | 75 N.W. 363,105 Iowa 521 |
| Parties | W. H. KENNEDY v. NELLIE M. ROBERTS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Montgomery District Court.--HON. A. B. THORNELL, Judge.
ACTION in replevin to recover the possession of a promissory note. The note is for five thousand dollars, and was executed by plaintiff to Nellie M. Roberts. Plaintiff claims that it was obtained from him without consideration, through fraud and duress, and is therefore void. Defendant interposed what was in effect a general denial. The case was tried to a jury resulting in a verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
C. E Richards, R. W. Beeson and P. W. Richards for appellant.
J. M Junkin and Smith McPherson for appellee.
Plaintiff and defendant were married in the state of Massachusetts in the year 1866. Defendant then had a husband living, from whom she had not been divorced. Almost immediately after their marriage they took up their residence in the state of Illinois, where they resided until the year 1871, when they moved to Montgomery county, Iowa where they lived as husband and wife until the year 1883. In the latter part of that year defendant left Iowa for the state of Rhode Island, ostensibly upon a visit, but really with the intention of abandoning her husband. Soon after she was discovered living with one Roberts, a former resident of Montgomery county, in the city of Providence, R. I. Discovering this fact, plaintiff brought suit for divorce against his wife, and obtained a decree in the district court of Montgomery county in the year 1887. Defendant's former husband obtained a divorce from her in the year 1867. After plaintiff obtained his decree, he gave his wife a house and lot in the town of Villisca worth about four thousand dollars, and also made an agreement whereby he undertook to pay her the sum of one hundred dollars per year for support. Sometime in the year 1884 a letter came to the post office addressed to the defendant. The plaintiff took this letter from the office, opened, read, and burned it. Some time in the year 1894 a man, who represented his name to be Snell, and who claimed that he lived in the state of Maine, appeared at plaintiff's home in Montgomery county. He claimed to be defendant's brother, and said he had come to get some money for his sister. Plaintiff claims he threatened that, if it was not given him, he (Snell) would have plaintiff arrested, not only for opening the letter, but for living in adultery with his sister. Afterwards defendant and Snell both met plaintiff, and, as he claims, by threats of arrest and of prosecution for the offenses above named, induced him to give the note which is in controversy. The note was taken away by the defendant. Acting upon the advice of an attorney, plaintiff wrote a letter to defendant's daughter, saying, in effect, that if her mother wanted the interest on the note she had better send it to some bank in Montgomery county. The note was sent, and plaintiff thereupon brought this suit to recover it.
I. Appellant's first claim is that the court had no jurisdiction of the case, for the reason that there is no allegation in the petition that the defendant wrongfully detained the note. In support of this contention, reliance is placed upon the case of Draper v. Ellis, 12 Iowa 316. That case is not in point, for the reason that the Code of 1851, under which that case was decided, in express terms required a statement of that kind in the petition. See section 1995 of that Code. Aside from this, the defect is not jurisdictional. It goes to the right of the plaintiff to recover in the particular case, and is such a defect as may be waived. See Reed v. City of Muscatine, 104 Iowa 183, 73 N.W. 579; Fulliam v. Drake, 105 Iowa 615. The question was not presented to the lower court, and is here made for the first time. The petition follows the requirements of the statute (Code 1873, section 3225), and is sufficient. But, whether technically accurate or not, the defect was waived by failure to object at a proper time. See authorities cited above.
II. The petition recites that "the note is of no value excepting as a matter of evidence to the plaintiff, and for that purpose, and that only, is of the value of $ 500." Defendant moved to strike out this allegation, claiming that it was surplusage and redundant matter, and not the actual or apparent value, as required by the statute to be alleged. The motion was properly overruled. See Savery v. Hays, 20 Iowa 25.
III. Appellant moved that plaintiff be required to give an additional bond, for the reason that the property was worth at least five thousand, two hundred and thirteen dollars; and that the bond was for but one thousand dollars. While this motion was pending the note was brought into court, and deposited with the clerk, to abide the order and judgment of the court. The court thereupon overruled the motion for an additional bond. We see no error in this ruling. But, whether there was or not, appellant suffered no prejudice. The jury found plaintiff was entitled to the note because it was obtained through duress. He was therefore entitled to it whether the bond as originally given was sufficient or not. Had the bond not been given, plaintiff was entitled to have the right of possession decided, and, as the matter was determined in his favor, defendant has no reason to complain of the insufficiency of the bond.
IV. In an amendment to an amendment to the petition plaintiff alleged malicious threats on the part of the defendant and Snell in almost the exact language of section 3871 of the Code of 1873. Defendant moved to strike this amendment, because a mere repetition of prior pleading; and to require plaintiff to state whether he was in fact guilty of the offense of which defendant threatened to accuse him. This motion was overruled, and, as we think, correctly. If the pleading was a mere repetition, the ruling was without prejudice. If it was not then we must determine whether plaintiff should also have pleaded his innocence. An indictment, under the statute just referred to, is sufficient, although it does not allege that the person so threatened was not guilty of the offense. State v. Waite, 101 Iowa 377, 70 N.W. 596. If this be true, surely it is not necessary to plead the innocence of the one threatened in a civil suit bottomed upon duress. The law presumes that plaintiff was innocent of the offenses of which the defendant threatened to accuse him. This presumption of innocence supplies the alleged defect, even if it be found that one may not predicate duress upon a threat to prosecute him for an offense of which he is in fact guilty.
V. Defendant demurred to the petition as amended for the reason that there was no allegation therein that plaintiff was in fact, innocent of the charges. This demurrer was overruled. It is said in argument that to constitute duress per minas there must be a threat of unlawful imprisonment, and that the pleading must show plaintiff was not in fact guilty of the offenses of which defendant threatened to prosecute him. What we have said in the last preceding division of this opinion fully answers this contention. It is also claimed that the petition, with its amendments, fails to show that the threats were immediate and without immediate means of prevention, and were such as would operate upon a person of reasonable firmness and courage, to cause him to do an act against his will. We think the pleadings sufficiently cover these points. It is alleged that defendant wantonly and maliciously made the threats for the purpose of extorting the note, and as a result of these threats plaintiff was put in fear, and compelled to execute the note without any consideration whatever.
VI. Over defendant's objection, plaintiff was permitted to show a demand for the note before bringing suit. It is argued that this evidence was irrelevant and immaterial. We are inclined to think this is true, for, if the note was wrongfully obtained as alleged, no demand was necessary. B...
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