Kreuger v. Sylvester

• Citation: 100 Iowa 647,69 N.W. 1059
• Parties: KREUGER v. SYLVESTER.
• Decision Date: 23 January 1897
• Court: United States State Supreme Court of Iowa

100 Iowa 647

69 N.W. 1059

KREUGER

v.SYLVESTER.

Supreme Court of Iowa.

Jan. 23, 1897.

Appeal from district court, Floyd county; P. W. Burr, Judge.

Action at law to recover damages for an alleged assault and battery. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Boulton & Brown, for appellant.

H. F. Fitzgerald and J. S. Root, for appellee.

DEEMER, J.

The appellant's abstract does not state that it contains all the evidence introduced upon the trial, nor is there a statement or certificate from the attorneys that it embraces any or all of the record upon which the case was tried and determined in the court below. Appellee has filed an amended abstract, supplying some parts of the record; but in this he denies the correctness of many of the pleadings and exhibits set forth in appellant's abstract; denies that the abstract contains all the instructions, and asserts that the instructions were not excepted to; denies that the two abstracts contain all the evidence or all the evidence on any particular point; denies that the evidence was properly made of record, by bill of exceptions or otherwise. The only reply to these denials is found in appellant's argument. In this he “admits” that he has set out only sufficient of the record to show fairly that part of it which he claims is error; and he further sets out a skeleton bill of exceptions, signed by the judge of the district court, which seems to have been filed within the time allowed by law.

The condition of the record is such that we cannot examine any question involving a consideration of the evidence. Turning now to those matters which we may review, and we find the first error assigned relates to rulings on the pleadings. The defendant filed a supplemental answer, in which he stated that the plaintiff had sold and transferred his cause of action to his attorneys, and that he was not the real party in interest. To this supplemental answer, plaintiff filed a reply, denying that any assignment of the cause of action was ever made to his attorneys except as security for their fees, and avers that this assignment was made after the action had been commenced. While the trial was in progress, the plaintiff submitted a reply, denying the allegations of the supplemental answer. To this, defendant filed a motion to strike. The motion was overruled, and defendant excepted. We think the ruling was right. The first reply was practically a general denial, but it was incumbered with an admission that some sort of an assignment was made as security for fees. The substituted denial presented no new issue, but, if it did, we are not prepared to hold that the court abused its discretion in allowing it to remain on file. If the ruling be said to be erroneous, the error was without prejudice, for the reason that the so-called “assignment” was not an absolute one. It was a contract for contingent fees, and, as such, it did not transfer the cause of action. Again, the assignment was made after the action was commenced, and it was perfectly proper for the court to allow the case to proceed in the name of the original plaintiff. McClain's Code, § 3766; Chickasaw Co. v. Pitcher, 36 Iowa, 593.

2. Early in the trial, and before resting his case, plaintiff filed an amendment, praying for exemplary damages. He made no additional allegations of fact, but simply demanded $5,000 as additional damages, on the facts already pleaded. Defendant moved to strike this amendment. His motion was overruled, and this ruling presents the second question argued by counsel. We do not think the court abused the discretion vested in it in such matters, and find no just ground for complaint.

3. During the trial the defendant filed a motion to dismiss the case, because it appeared that plaintiff was not the real party in interest, because of the assignment of the cause of action before referred to. This motion was properly overruled, for the reasons stated in the first paragraph of this opinion.

4. Defendant complains of some of the instructions given by the court. We cannot consider this complaint, for the reason that we do not have all the instructions before us. State v. Lauderbeck (Iowa) 65 N. W. 158;State v. Stanley, 48 Iowa, 221;State v. Nichols, 38 Iowa, 110. The instructions seem to announce correct abstract propositions, and we see no error in those which are embodied in the record. There was certainly no such error as that it may not have been cured by other instructions.

5. In presenting his views of the law to the trial court, the following colloquy occurred between counsel and the judge...