Laughlin v. Franc

• Decision Date: 13 December 1955
• Docket Number: No. 48863,48863
• Citation: 247 Iowa 345,73 N.W.2d 750
• Parties: Marie LAUGHLIN, Appellee, v. Irene FRANC, Appellant, Ernest McDermott, Clerk of Monroe Township, Fremont County, Iowa, William Rogers, Frank Bradley, and W. L. Lorimor, Township Trustees of Monroe Township, Fremont County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 750

73 N.W.2d 750

247 Iowa 345

Marie LAUGHLIN, Appellee, v. Irene FRANC, Appellant Ernest McDermott, Clerk of Monroe Township, Fremont County, Iowa, William Rogers, Frank Bradley, and W. L. Lorimor, Township Trustees of Monroe Township, Fremont County, Iowa, Appellees.

No. 48863.

Supreme Court of Iowa.

Dec. 13, 1955.

Paul V. Nichols, Shenandoah, for appellant.

Keenan & Clovis, Shenandoah, for appellee.

THOMPSON, Justice.

This appeal, while involving little from a monetary standpoint, is replete with confusion and legal problems. At the outset we are met with a peculiarity in the caption of the case as it comes to us, and as we must presume it was carried below. While Marie Laughlin is named as plaintiff and Irene Franc as defendant, and the township officers merely as 'appellees', in fact as the matter was tried below Irene Franc was the plaintiff and Marie Laughlin and the other parties were defendants. Without doubt, Marie Laughlin instituted the controversies here by appealing to the township trustees to function as fence viewers; but Irene Franc appealed from their orders and carried the burden in the district court. She filed her petition and proceeded in accordance with Rule 368, R.C.P., 58 I.C.A. Marie Laughlin cross-petitioned, and in effect the trial court granted her the relief asked and confirmed the order of the fence viewers. Irene Franc's appeal was dismissed. We shall hereafter refer to Irene Franc as the plaintiff and Marie Laughlin as the defendant.

I. At the outset we are confronted with the question whether the action was tried below in equity or at law. Without doubt, an appeal to the district court from an order of fence viewers is a special proceeding, and so triable at law. Moore v. Short, 227 Iowa 380, 381, 288 N.W. 407, 408; In re Fence Dispute Between Swisher et al., 204 Iowa 1072, 1073, 1074, 216 N.W. 673. But plaintiff's petition, filed as required by Rule 368, R.C.P., asked equitable relief. The court did not rule upon objections to testimony, in accordance with general equity practice; and it entered its 'decree' when determining the case. 'Decree' is generally held to apply to judicial decisions of courts of equity; National Surety Co. v. Mulligan, 105 N.J.L. 336, 146 A. 372, 375; Eiger v. Hunt, 282 Ill.App. 399. We conclude this appeal was in fact tried in equity; and even though a cause be cognizable at law, if by agreement express or implied the court and the parties try it in equity, we will consider the cause to be in that forum and will try it de novo upon appeal to this court. McCulloch Investment Co. v. Spencer, Iowa, 67 N.W.2d 924, 925, 926, and cases cited; Knigge v. Dencker, Iowa, 72 N.W.2d 494, 495. Our consideration here is de novo. However, the point is not of great practical importance, since the decision must turn upon questions of law which would be the same in either forum.

II. The defendant Marie Laughlin has been since 1932 the owner of one hundred and twenty acres of farm land consisting of three forty acre tracts lying in a row running east and west. Michael Doyle, until his death on December 31, 1952, owned three forty acre parcels lying immediately north of and adjoining the Laughlin land, and another forty immediately east of and adjoining the east forty of the defendant. For some years there had been an oral agreement between Michael Doyle and Marie Laughlin under which Doyle maintained the partition fence between his two west forties and the Laughlin farm, and Mrs. Laughlin maintained the fence on the north between her east forty and the Doyle land, and the north and south fence between this forty and the Doyle forty immediately east of it. The litigation here concerns this north and south fence along the east end of the Laughlin land, and the west side of the Doyle forty lying east of it. The part of Mrs. Laughlin's property here involved is described as the Southwest Quarter (SW 1/4) of the Southeast Quarter (SE 1/4) of Section 4, Township 70 North, Range 40 West of the Fifth Principal Meridian, in Fremont County, Iowa; the Doyle land lying immediately to the east of it is the Southeast Quarter (SE 1/4) of the Southeast Quarter (SE 1/4) of the same section, township and range.

Michael Doyle died testate. Under the terms of his will, his son Walter Doyle became the owner of the forty acres lying farthest west; another son, Leo Doyle, was given the forty next to the east; two daughters, Cecilia Hughes and Martha McGargle (or McGargill) were given the forty next to the east of that given to Leo (and other land); and the plaintiff Irene Franc was devised the forty acres immediately to the east of the Laughlin land. It is the fence along the west side of this latter tract with which we are concerned here.

There was no trouble about the fences during the lifetime of Michael Doyle. But thereafter it apparently developed that the west 160 rods of the partition fence, which had been maintained by Doyle, needed replacing. Walter and Leo Doyle, the owners of the two forty acre tracts of which this fence was the southern line, required the defendant Laughlin to build or pay for building one-half thereof. Mrs. Laughlin, feeling that if she were to be called upon to pay for one-half of this fence she should have some compensation for the fences along the Hughes-McGargle land and Mrs. Franc's forty which she had maintained, contacted Mrs. Hughes and Mrs. McGargle, and believed she had reached an agreement with them. Mrs. Franc was a resident of Denver, Colorado. On July 28th, 1954, Mrs. Laughlin wrote her a letter, the substance of which was that Mrs. Hughes and Mrs. McGargle had agreed to pay each one-third of the cost of the new fence along the line between Walter and Leo and the Laughlin land. (The total estimated cost of this fence was about $75 to $80, a sum considerably less than the printing costs alone on this appeal.) The letter requested Mrs. Franc to pay the remaining one-third, and estimated the cost to each of the three sisters--Mrs. Hughes, Mrs. McGargle and Mrs. Franc--at $25 to $27. Mrs. Franc replied promptly, saying that she would pay her one-third. Apparently some trouble developed between Mrs. Hughes and the defendant Laughlin, and the agreement was not consummated. Without notifying Mrs. Franc of the failure to work out the plan which had been suggested to her and to which she had agreed, Mrs. Laughlin appealed to the township trustees of Monroe Township to act in determining the supposed controversy. The only notice given Mrs. Franc of the time fixed for hearing was by a letter from the township clerk, dated September 4, 1954, and advising her a meeting to 'get a settlement * * * agreeable to all parties concerned' would be held on September 9, 1954, at 1 p. m. Mrs. Franc received the letter at Denver on September 6th or 7th, and did not appear at the hearing. The fence viewers met as scheduled, assigned the north half of the partition fence to Mrs. Franc to build and maintain and the south half to Mrs. Laughlin, and granted Mrs. Laughlin permission to remove the north half of the fence, apparently on the theory that it belonged to her since she had under the verbal agreement with Doyle maintained it and she might do with it as she pleased. On the next day, September 10, 1954, Mrs. Laughlin removed this part of the fence. It should be said that the entire fence in question, between the Laughlin land and the forty acres devised to Mrs. Franc by her father's will was a legal and tight fence except that it had only two strands of barbed wire, instead of three, above the woven wire. Mrs. Franc appealed from the orders of the fence viewers to the district court. After trial, the court entered its decree assigning the north one-half of the fence to Mrs. Franc to builld and maintain, the south one-half to Mrs. Laughlin, and ordering Mrs. Franc to erect and maintain a hog-tight fence along the one-half assigned to her. It will be observed this in effect confirmed the findings and orders of the fence viewers.

III. We are confronted with another procedural question at this point. It is the contention of the appellee that by appealing from the decision of the fence viewers the appellant-plaintiff Franc waived any question of the jurisdiction of the viewers. It is conceded no proper or legal notice of the time fixed for hearing was given the plaintiff. See sections 113.7 and 113.9, Code of Iowa 1954, I.C.A. Nor was there any request first made in writing upon her which was refused, or any existing controversy, both of which are essential prerequisites to jurisdiction and action of the fence viewers. Kruse v. Vail, 238 Iowa 1277, 1281, 30 N.W.2d 159, 162; Nichols v. Fierce, 202 Iowa 1358, 1360, 1361, 212 N.W. 151, 152; Sinnott v. District Court, 201 Iowa 292, 296, 297, 207 N.W. 129, 131; Scott v. Nesper, 194 Iowa 538, 542, 188 N.W. 889, 891. The letter from Mrs. Laughlin to Mrs. Franc under date of July 28, 1954, was in no proper sense a request. It was a friendly suggestion as to the manner in which the fence problem which had arisen because there were several owners of the Doyle land instead of one as theretofore might be settled. Mrs. Franc agreed with the suggestion; there was no slightest controversy between her and Mrs. Laughlin about the fence between their lands. That some trouble arose between the defendant and Mrs. Hughes over the partition fence between lands with which the plaintiff had not the least concern did not make a controversy between Mrs. Laughlin and Mrs. Franc. Indeed, it may well have been that if Mrs. Franc had been advised that the plan suggested by Mrs. Laughlin and consented to by her had been abandoned, an agreement might still have been reached. But Mrs. Laughlin did not notify her of the failure of the proposed adjustment; she went to the fence viewers. These facts do not show a demand or an existing controversy, except between the defendant and Mrs. Hughes.

It follows that the fence viewers had...