Kuiken v. Garrett

• Decision Date: 08 January 1952
• Docket Number: No. 47712,47712
• Citation: 51 N.W.2d 149,243 Iowa 785,41 A.L.R.2d 1397
• Parties: , 41 A.L.R.2d 1397 KUIKEN et al. v. GARRETT et al.
• Court: Iowa Supreme Court

Page 149

51 N.W.2d 149

243 Iowa 785, 41 A.L.R.2d 1397

KUIKEN et al. v. GARRETT et al.

No. 47712.

Supreme Court of Iowa.

Jan. 8, 1952.

Johnston, Shinn & Johnston, Knoxville, for appellants.

Johnson & Johnson, Knoxville, for appellees.

THOMPSON, Chief Justice.

Division I of plaintiffs' amended and substituted petition, filed May 13, 1948, alleges that they leased certain buildings and farm lands from defendants for the year from March 1, 1947 to March 1, 1948, by oral agreement; that they entered into possession; that defendants thereafter served upon plaintiffs certain notices to terminate tenancy and notices to quit, and commenced and prosecuted various forcible entry and detainer actions, amounting to a breach by defendants of the implied covenant for quiet enjoyment of the demised premises, malice being charged in the giving of said notices and the bringing of said ouster actions. Plaintiffs say they were damaged in that they lost time in attending to the notices and litigation precipitated by defendants, and that they paid or became liable to pay attorney fees; that defendants failed to pay one-half the cost of seed oats as required by the lease; and they ask exemplary damages.

In Division II plaintiffs ask the sum of $180 (reduced to a maximum of $150 in the instructions of the court) because they were entitled, under sections 562.6 and 562.7, Code of 1946, I.C.A. to hold over for another year after March 1, 1948, but they were evicted by defendants by the service of a notice to quit on February 26, 1948; that this notice constituted a constructive eviction, and they acted upon it and were compelled to pay rental for other premises for ten months at $15 per month.

The defendants admitted the giving of the notices, but denied malice, and averred that the plaintiffs had breached the lease in various ways, and that defendants were justified in their attempts to regain possession of their property. They also counterclaimed, asking damages for various alleged breaches of the lease by plaintiffs. The jury returned a verdict for plaintiffs for $845 and for defendants the sum of $10 upon their counterclaim. From judgment upon the verdict defendants have appealed.

Defendants' assigned errors are set out in eight major divisions. However, many of these are subdivided so that in all there are some seventy-one errors, major and minor, claimed as grounds for reversal. It is an obvious impossibility to discuss each of these within the reasonable length of an opinion. However, many of them are in effect duplications. We have considered each assignment and have discussed those which seem to have a semblance of merit. We believe that the opinion which follows gives attention to the substance of defendants' complaints.

I. Defendants' first proposition relied upon for reversal, and which they argue strenuously and at length, concerns what they assert to be contradictory rulings made by two different judges for the Fifth Judicial District, of which Marion County is a part. Upon the filing of plaintiffs' first petition herein, defendants attacked it by motions to dismiss and, in the alternative, motions to strike. Judge Earl W. Vincent, before whom these motions came for determination, denied the motions to dismiss, but sustained the motions to strike. This ruling left to plaintiffs only their claim for $25 damages because of the alleged failure of defendants to pay one-half of the cost of the seed oats purchased and used by plaintiffs upon the leased ground for the year 1947.

Thereupon, plaintiffs filed an amended and substituted petition, upon which they eventually went to trial. Believing that this petition was in substance no different from the first one filed defendants again attacked by motions to dismiss and to strike; the material ground of the latter being that the second pleaded cause of action was in effect identical with the first, and that the ruling thereupon had become the 'law of the case,' and therefore plaintiffs were not entitled to reassert the same claims. These motions came before Judge S. E. Prall, another judge of the same judicial district, and so of the Marion District Court. Judge Prall, believing that there was a substantial difference in the two petitions, considered the motions and eventually overruled them. It is apparent that, if there was in fct no material change in the allegations made in the amended and substituted petition, he was in effect overruling the decision of Judge Vincent. For the purpose of the discussion in this division we shall assume, without deciding, that this is what he did.

Defendants cite several authorities in support of their contention that Judge Prall had no legal right to change the holding of the court. One of them, Taylor v. Grimes Canning Corporation, 218 Iowa 1281, 257 N.W. 353, seems in point. It was there held that one of the judges of the Polk District Court had no right to change, and in effect overrule, a prior determination of another judge of the same court. See page 1286 of 218 Iowa, page 355 of 257 N.W. The holding is much weakened by the lack of supporting authority. Only one case, Farmers' Union Exchange v. Iowa Adjustment Company, 201 Iowa 78, 80, 203 N.W. 283, is cited. It is readily apparent, however, that this does not support the Taylor case. It holds only that the district court of Marshall county could not enjoin the enforcement of a judgment rendered in the municipal court of the City of Marshalltown. These were courts of concurrent jurisdiction, and, since the judgment of the municipal court was not entirely void, another court had no jurisdiction to examine its validity. The situation is in no way comparable to that existing where the same court, whether by the same or a different judge, examines and passes upon its own rulings, at any time prior to final judgment.

It has often been held that, when a demurrer, motion to dismiss, or motion to strike has been upheld as against a pleading, and the pleader attempts to plead over but fails to assert any new or different grounds for relief, that a motion to strike is proper; and, if such motion is sustained, that no error can be predicated upon the ruling. The error, if one was committed, was in the first ruling, and appeal must be taken therefrom. It was also held, under our former practice, that pleading over after an adverse ruling waived the error. This has been changed by our present rules; 58 I.C.A. Rules of Civil Procedure, rule 331(b). Authorities to the effect that a motion to strike is proper where the second pleading is but a repetition of the first, cited and relied upon by defendants here, are Weimer v. Lueck, 234 Iowa 1231, 15 N.W.2d 291; Farmers' Union Exchange v. Iowa Adjustment Company, supra; Simmons v. Western Life Indemnity Co., 171 Iowa 429, 154 N.W. 166; Swartzendruber v. Polke, 205 Iowa 382, 218 N.W. 62. They decide the right of the court to strike a second pleading which does not materially alter the allegations of the first; but, except for Taylor v. Grimes Canning Corporation, supra, they do not reach the authority of the court to change its ruling if it conceives that its first decision was in error. Ontjes v. McNider, 218 Iowa 1356, 1361, 256 N.W. 277, relied upon by defendants, holds only that the original rulings of the court were correct and since the proposed substituted petition was not different in substance, it should have been followed and the petition stricken. It is important to note, also, that many of the cases cited by defendants were decided under the rule that pleading over after an adverse ruling on a motion waived the error. This is no longer true, under RCP 331, above cited. Pleading over does not now waive error. The true rule, we think, is expressed in Richman v. Supervisors of Muscatine County, 77 Iowa 513, 524, 42 N.W. 422, 426, 4 L.R.A. 445. The situation there was identical with that in the case at bar; that is, after a change in the personnel of the court a different ruling was made. We said: 'We think the change of judges makes no difference. It is the same court. We are not prepared to hold that if during the trial of the issues of an action a court becomes convinced of an error he may not correct it.' (Italics supplied.)

To the same effect is Darling v. Blazek, 142 Iowa 355, 358, 120 N.W. 961, 962. There, in response to the argument that the first ruling upon a demurrer, which was sustained, became the law of the case, Justice Weaver, for this court, said: 'Parties to a litigation have no vested right in the court's mistakes to prevent their correction at any time before final judgment is entered.'

In Simmons v. Western Life Indemnity Company, supra, a case cited and urged by defendants, is set out the proper qualification of the doctrine contended for by them. It is there said, 171 Iowa at page 434, 154 N.W. at page 167: * * * 'such rulings, until recalled or set aside by the court, became the law of the case,' * * *. (Italics supplied.)

It is our conclusion that Judge Vincent's ruling did not become the law of the case so as to preclude either himself or another judge of the same court from changing it before final judgment. The decision in each case was that of the Marion district court rather than of any individual judge thereof, and could be corrected by the court at any time before entry of final judgment. As Justice Weaver said, the defendants had no vested right to require the court to perpetuate its mistake.

In so far as Taylor v. Grimes Canning Corporation, supra, is in conflict with the holding expressed in this division of the opinion, it is overruled.

II. By motions attacking the pleadings, objections to evidence, exceptions to instructions, and motions following the verdict, defendants raise the question of the right of plaintiffs to recover damages for wrongful eviction, as alleged in Count I of their petition, when they did not remove from the premises during the term of the lease. It will be noted...