Klopp v. Chi., M. & St. P. Ry. Co.
| Decision Date | 26 June 1912 |
| Citation | 136 N.W. 906,156 Iowa 466 |
| Parties | KLOPP v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; Milo P. Smith, Judge.
Action of mandamus wherein plaintiff, an owner of property on either side of defendant's line of railway, seeks to compel the defendant to construct an underground crossing on its roadbed for use in connection with plaintiff's premises; and for judgment for $500 damages for failure to maintain an adequate crossing from August 1, 1906, down to the date of the institution of the action. Over defendant's protest and exceptions the case was tried to a jury, resulting in a verdict for plaintiff, and a finding that he was entitled to an underground crossing at or near the point asked for by him, and that he had sustained damages in the sum of one dollar. The jury also returned an answer to a special interrogatory as follows: Judgment having been rendered on this verdict, the defendant appeals. Reversed and remanded.Cook, Hughes & Sutherland, of Cedar Rapids, for appellant.
Rickel & Dennis, of Cedar Rapids, for appellee.
The petition filed by plaintiff was denominated a petition at law, but was really an action of mandamus to require the defendant to construct an underground crossing, connecting his lands on either side of the defendant's right of way, and asking a judgment for damages. In due season defendant filed an answer to this petition. Thereafter the defendant was given leave to withdraw its answer, and to file a motion to transfer the cause to the equity side of the docket. This motion was overruled by the court on the 12th day of November, 1910; the defendant preserving its exception. Thereupon the defendant filed an answer, setting forth various defenses, and, after filing its second answer, the defendant filed its second motion to transfer the case to the equity side of the docket. This last motion was overruled by the court on the 14th day of November, 1910. The case was assigned for trial and came on for hearing on the 14th day of November. When the case was reached, the defendant made the following objection: “The defendant objects to the calling, swearing, or impaneling of a jury in this cause, and objects to the cause being tried before a jury, because section 4341 of the Code Supplement of 1907 provides that all such causes shall be tried as equitable actions, and the court has no right, authority, or jurisdiction to try the same before a jury.” This objection was overruled, a jury was impaneled, and the case proceeded to trial to a jury. At the conclusion of plaintiff's evidence defendant moved for a directed verdict, which motion was overruled, and the defendant excepted. At the conclusion of all the evidence, the defendant renewed its motion for a directed verdict, which motion was overruled and exception again taken. The jury was then instructed and returned a verdict with the answer to the special interrogatory heretofore set out. Defendant excepted to the verdict, and thereupon filed a motion for decree and judgment denying the writ of mandamus. This motion was based upon the defenses pleaded in defendant's answer, and raised practically all the questions which it relied upon as a defense to plaintiff's suit. This motion was overruled, and a judgment and order for writ of mandamus granted as prayed.
[1] The appeal challenges many of the rulings and orders of the trial court. The only one which we need now consider is the trial of the case to a jury over the defendant's objections, which were interposed at the time the jury was called; and perhaps the ruling on the first motion made by the defendant to transfer the cause to the equity docket. The statute with reference to actions of mandamus in force when this action was tried reads as follows: Code Supplement, § 4341. That the action was of mandamus and was properly brought as such is practically conceded. Indeed, such is the holding in Boggs v. Railway, 54 Iowa, 435, 6 N. W. 744. Whether it be proper to entitle it in the petition as an action at law or in equity is not, as we think, material. Until the change in the statute, it was generally recognized as a special proceeding, or an action at law and triable to a jury, but the statute now says that “all such actions (no matter whether at law or in equity) shall be tried as equitable actions.” Section 3650 of the Code provides that: This section has not been regarded as applicable to what are now denominated in the Code (section 3425) as special actions. See In re Bresee, 82 Iowa, 573, 48 N. W. 991;Porter v. Butterfield, 116 Iowa, 729, 89 N. W. 199;Green v. Smith, 111 Iowa, 185, 82 N. W. 448;Frank v. Hollands, 81 Iowa, 166, 46 N. W. 979;In re Culver's Estate, 133 N. W. 722. As the statute expressly provides that the action shall be tried as an equitable one, the court had no right or authority, over defendant's objections, to order the case tried to a jury; and was not justified in shifting the responsibility to such a tribunal. The parties were entitled to the personal judgment and decision of the court, and the designation of the petition as one at law, instead of a petition in equity, did not warrant the court in refusing to try the issues, where the request was made before the trial was actually begun. This question is settled, as we think, in Hobart v. Hobart, 51 Iowa, 513, 1 N. W. 780. This, it is true, was a divorce suit, which, over the objection of the defendant, the court referred to a jury, received the jury's verdict, and entered a decree in accord with the verdict so returned. The question arose upon appeal as to the validity of such a verdict, and in the course of the opinion the court said: ...
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