Koepke v. Rohwer (In re Kahl's Estate)
| Decision Date | 22 September 1930 |
| Docket Number | No. 40267.,40267. |
| Parties | IN RE KAHL'S ESTATE. KOEPKE v. ROHWER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Crawford County; M. E. Hutchison, Judge.
Mrs. Ferdinand Koepke, the claimant, filed her claim in the amount of $6,000 against the estate of deceased. Her claim consists of two counts. In the first count, she asks for said amount, under an alleged express oral contract, for services rendered. In the second count, she asks said amount for her said services upon quantum meruit. Upon trial, the jury found for the claimant on the second count, in the amount of $3,000. The defendant-executor appeals.
Reversed.P. J. Klinker and L. W. Powers, both of Denison, for appellant.
Clark & Clark, of Ida Grove, and Sims & Page, of Denison, for appellee.
In the first count of her petition, the claimant alleges, in substance, that on the 2d day of December, 1923, she entered into an oral contract with the decedent, by which he agreed to pay her $1,500 per year, said amount to be paid at decedent's death, provided she would furnish him during his lifetime with one warm meal a day at the place of his residence until the time of his decease, and act as practical nurse for him at his home during said time; that she fully performed her part of the contract; and that by reason thereof, there is due her the sum of $6,000.
In the second count, she alleges, in substance, that on and between the 3d day of December, 1923, and the 26th day of November, 1927, she furnished to the deceased, at his special instance and request, certain services and meals, as shown by the statement of account thereto attached as an exhibit, and constituting a part thereof; that said services consisted of caring for the deceased as a practical nurse and attending to his personal needs and wants during said period of time; that the fair and reasonable value of said services thus rendered, and the meals thus furnished to the decedent, as shown by said exhibit, was the sum of $1,500 per year, or a total sum of $6,000.
The decedent was a bachelor, advanced in age. During the latter years of his life, he lived in a two-room shack in the town of Schleswig. He was afflicted with rheumatism to such an extent that it was difficult for him to move about, and was also suffering from a hernia. The claimant is a married woman, whose husband is living, and she has a family. On December 2, 1923, the decedent appeared at the claimant's home, about two and one-half blocks from his shack. There is testimony from which the jury could have found that on the occasion of this visit, the contract, as alleged by the plaintiff in count 1, was entered into. There is also testimony to the effect that the claimant furnished meals and rendered services to the decedent as alleged.
The court submitted both counts to the jury and also a special interrogatory as to whether the claimant and decedent made an oral agreement by which the latter was to pay the former $1,500 per year for furnishing him meals and caring for him, as set forth in count 1 of the claim. The jury answered this special interrogatory in the negative, but found for the claim on count 2 upon quantum meruit in the amount of $3,000.
The appellant filed a motion for a new trial, including exceptions to instructions given and one which was requested and not fully given. This motion was overruled.
At the close of all the evidence, the appellant moved for a directed verdict upon count 2, for the alleged insufficiency of the evidence to support a verdict upon said count. This motion was overruled, and said ruling was urged as error in the motion for a new trial and is now urged as error in this court. From a careful reading of the record, it is apparent that there was ample evidence to sustain a verdict based upon the allegations of count 2, and appellant's contention in this respect is devoid of merit.
We detect nothing in the record indicating that the verdict is the result of passion and prejudice, as asserted by the appellant. There is no merit in appellant's contention at this point.
[1] It is shown by the record that on March 2, 1927, the claimant and her husband executed unto the decedent their note for $100, due six months after date. The appellant asked the court to instruct the jury that by reason of the execution of said note by the claimant to the decedent, the law presumes that a settlement was made between the parties as of that date, and there could be no recovery by the claimant for services rendered prior to March 2, 1927. The failure to give said instruction, as asked, is also urged as error in the motion for a new trial. The court did incorporate, in his instructions, the thought contained in the requested instruction, by telling the jury that, by reason of the execution of said note, the law presumes that a settlement was made between the parties on that date, and that their mutual claims were merged in the note, and the court added that the burden is upon the claimant to show, by a preponderance of the evidence, that there was no such mutual settlement, and that unless she has so shown, then their verdict should be for the defendant-executor as to the period prior to the date of the execution of said note. It is a well-recognized rule of law that the execution and delivery of a note is prima facie evidence of the settlement of all existing demands between the parties up to the date of the execution of the note. See 12 C. J. 364; Grimmell v. Warner, 21 Iowa, 12; Allen v. Bryson, 67 Iowa, 591, 25 N. W. 820, 56 Am. Rep. 358;Clement, Bane & Co. v. Houck, 113 Iowa, 504, 85 N. W. 765. The presumption which thus arises is not conclusive, but is rebuttable by the facts and circumstances disclosed by the evidence and the fair inferences to be drawn therefrom. There is ample evidence in the record from which the jury could well find that the presumption thus arising had been overcome. There is no error at this point, of which the appellant can complain.
The appellant contends that the court erroneously permitted the claimant to answer questions over his objections that the witness is incompetent and the interrogatories call for a personal transaction as between the claimant and the deceased, in violation of the provisions of section 11257 of the Code.
The appellee contends that the assignment, or statement of error, in the motion for a new trial is too general to present to the trial court the question now urged by the appellant, and that for said reason the same cannot now be reviewed on this appeal. There are numerous rulings as disclosed by the record upon the introduction of evidence, other than those now urged as error by appellant. In his motion for a new trial, the appellant avers: “The court erred on the trial of the case in admitting evidence on the part of the plaintiff which was objected to by the defendant as shown by the record and the shorthand notes of the court reporter.” It will be observed that this in no way points out any specific ruling of the court on the introduction of the evidence, but is an omnibus, sweeping statement of claimed error. It does not specify the rulings now complained of, other than as the same are included in the broad, sweeping, quoted allegation.
In support of appellee's contention that the aforesaid statement of error in the motion for new trial is insufficient to present to the trial court the question now urged as error by the appellant, he relies on Liddle v. Salter, 180 Iowa, 840, 163 N. W. 447, and Feister v. Kent, 92 Iowa, 1, 60 N. W. 493. In Liddle v. Salter, 180 Iowa, 840, 163 N. W. 447, the appeal was not perfected within the statutory time for the taking of an appeal from the judgment, but was taken in time for an appeal from the entry of the order overruling the motion for new trial. Therefore, only the errors arising on the ruling of the court in overruling the motion for new trial were considered.
[2] It has been the rule of long standing in this court that an appeal does not lie from the ruling of the trial court upon the admission or exclusion of evidence. Richards v. Burden, 31 Iowa, 305;Siemonsma v. Chicago, Milwaukee & St. Paul Railway Co., 137 Iowa, 607, 115 N. W. 230.
This court has appellate jurisdiction over all judgments and decisions of all courts of record, except as otherwise provided by law. See section 12822, Code 1927. This court also has jurisdiction to determine an appeal taken from an order, either granting or refusinga new trial. See paragraph 3, § 12823, Code 1927; In re Estate of Fetterman, 207 Iowa, 252, 222 N. W. 872;Pride v. Inter-State Business Men's Accident Association of Des Moines, 207 Iowa, 167, 216 N. W. 62, 62 A. L. R. 31. Section 12828 of the Code 1927, provides:
“The supreme court on appeal may review and reverse any judgment or order of the municipal, superior, or district court, although no motion for a new trial was made in such court.”
[3] It is the contention of the appellant that a motion for a new trial is not necessary in order to present to this court such errors as are claimed by him to have been made by the trial court in the rulings on the evidence. In this contention, he is correct when the appeal is taken from the judgment. See Mueller Lumber Co. v. McCaffrey, 141 Iowa, 730, 118 N. W. 903;Clement, Bane & Co. v. Drybread, 108 Iowa, 701, 78 N. W. 235;Brown v. Rose, 55 Iowa, 734, 7 N. W. 133;Drefahl v. Tuttle, 42 Iowa, 177;Delvee v. Boardman, 20 Iowa, 446;Presnall v. Herbert, 34 Iowa, 539.
[4] The question now confronting us is: Is the appeal to be considered by us as an appeal from a judgment or only one from the order of the court overruling appellant's motion for a new trial? If it be the former, then appellant is right in his contention at this point, and if it be the latter, then in accordance with our holding in Liddle v. Salter, 180 Iowa, 840, 163 N. W. 447, the question which the appellant urges at this point is not before us for review.
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