Keplinger v. Barer

• Decision Date: 28 July 1944
• Docket Number: No. 46492.,46492.
• Citation: 234 Iowa 1135,15 N.W.2d 284
• Parties: KEPLINGER v. BARER.
• Court: Iowa Supreme Court

234 Iowa 1135

15 N.W.2d 284

KEPLINGER

v.BARER.

No. 46492.

Supreme Court of Iowa.

July 28, 1944.

Appeal from District Court, Johnson County; H. D. Evans, Judge.

A suit in equity for decree cancelling an execution issued on a judgment entered in the district court of Johnson County, Iowa, on or about September 26, 1936. The grounds alleged for the relief prayed for are that the judgment of the above-noted date was in an action on a claim for rent, and its enforcement was barred after two years from its entry, by section 11033.1 of the Code of 1939. From the decree granting the relief the defendant appealed.

Affirmed.

Messer, Hamilton & Cahill, of Iowa City, for appellant.

D. C. Nolan, of Iowa City, for appellee.

BLISS, Justice.

The judgment on which the execution was issued was procured by the appellant's mother on a petition containing two counts. The first count being on a note for $700 executed by the appellee, and the second count being on an account for rent. On February 18, 1941, the judgment creditor, who subsequently died, assigned the judgment to appellant. The execution was issued on May 28, 1943, and after the limitation period specified in said Code, section 11033.1.

The petition herein was filed July 20, 1943. The judgment appealed from was entered on October 2, 1943, the appeal was perfected October 29, 1943, and the appellate proceedings are under the new rules. The trial court found and decreed that the $700 note in count one of the petition on which the judgment was based was given for rent owing by the appellee to the judgment creditor, which note was merged in the judgment in an action on a claim for rent, within the purview of said code section, and that the enforcement of the judgment by execution was therefore barred.

It is our judgment that the record amply sustains the findings and decree of the able trial court.

The appellant relies for reversal upon the following propositions: (1) The judgment was not rendered in an action on a claim for rent within the meaning of the statute; (2) the judgment was based on a note executed as the result of either an accord and satisfaction, or a novation; (3) the court erred and abused its discretion in reopening the case to permit the appellee to offer additional testimony.

In support of propositions 1 and 2 the appellant relies upon the testimony of herself and another witness that: During the years 1932 and 1933 and prior thereto the appellee paid all rentals, but borrowed money from the appellant's assignor on numerous occasions and gave her notes therefor; sometime in 1934 a dispute arose as to the amount of the indebtedness and it was compromised at $700, and the note in question was executed. She contends that this was either an accord and satisfaction, or a novation, and that even though the note had been given for rent, a judgment secured thereon would not be within Code, section 11033.1. In support of the theory of an accord and satisfaction appellant cites Sparks v. Spaulding Mfg. Co., 158 Iowa 491, 139 N.W. 1083;Shayan v. Bayer Vehicle Co., 179 Iowa 923, 162 N.W. 221;Olson v. Shuler, 203 Iowa 518, 210 N.W. 453;Munn v. Town of Drakesville, 226 Iowa 1040, 285 N.W. 644. In support of the novation theory appellant cites Hannan v. Murphy, 198 Iowa 827, 200 N.W. 418;Des Moines Joint Stock Land Bank v. Allen, 220 Iowa 448, 460, 261 N.W. 912;Wheeler v. Woods, 205 Iowa 1240, 1245, 219 N.W. 407;Wade & Wade v. Central Broadcasting Co., 227 Iowa 422, 288 N.W. 439; In re Estate of Eitzen, 231 Iowa 1169, 3 N.W.2d 546. Appellant also cites Berg v. Berg, 221 Iowa 326, 264 N.W. 821, for its interpretation of section 11033.1. We do not find it necessary to pass upon the rule of any of these cases as none of them aid the appellant or are applicable under the facts in the record. There is evidence given by the appellee and two other witnesses sufficient to establish that: The appellee came to Iowa City in 1913 to send her daughter to the State University, and she thereafter remained in the city following her profession of nursing; for seventeen and more years she occupied a residence owned by appellant's assignor and regularly paid the rent; but in 1932 and 1933 she had so little...