Lawrence v. Melvin
| Decision Date | 14 December 1926 |
| Docket Number | 37712 |
| Citation | 211 N.W. 410,202 Iowa 866 |
| Parties | G. W. LAWRENCE, Administrator, Appellee, v. MARTHA E. MELVIN, Appellant, et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--JAMES W. WILLETT. Judge.
Action in equity, in the name of the administrator of one tenant in common against another, for an accounting, to recover contribution for a pro-rata share of the cost of removing a mortgage incumbrance from the common property, and to have the judgment therefor established as a lien on the interest of the defendant therein. Decree as prayed, and the defendant appeals.
Reversed.
R. L Parrish and Wendell Huston, for appellant.
C. H Van Law, for plaintiff, appellee.
F. E Northup, for Rachael A. Elzy, appellee.
STEVENS, J. DE GRAFF, C. J., and FAVILLE and VERMILION, JJ., concur.
The plaintiff in this action is the administrator of the estate of M. E. Melvin, deceased. The cause of action stated in the petition is based upon the alleged payment by decedent of a mortgage incumbrance upon certain real property in Marshall County which was owned in common by decedent and appellant, and is to recover contribution for a pro-rata share of the cost of removing such incumbrance. The answer, is in effect, both a general and a special denial. During the progress of the trial, it was developed in the testimony that the incumbrance was paid by decedent in 1917. Thereupon, appellant immediately set up a plea of the statute of limitations. The amendment was met by a motion to strike, upon the grounds that appellant was a nonresident of the state of Iowa during the intervening period; that the statute does not run in favor of one tenant in common against his cotenant; that appellant admitted the cause of action pleaded; that the plea of the statute of limitations was not timely, and therefore the right to plead the same was waived. The motion to strike was submitted with the case, and, upon final consideration by the court, was sustained.
Appellant sought to introduce evidence of certain claims which she had paid to others for the cotenant, as offsets against the cause of action of appellee. The court, however, held that, while the action was, in form, an action for an accounting, it was, in reality, merely to recover contribution, and, by its terms, limited to the mortgage incumbrance paid by decedent, and that, therefore, the evidence was not, under the issues, admissible. We need consider only the plea of the statute of limitations.
It is elementary that a party relying upon the statute of limitations must specifically plead the same. Central Tr. Co. v. Chicago, R. I. & P. R. Co., 156 Iowa 104, 135 N.W. 721; Belken v. City of Iowa Falls, 122 Iowa 430, 98 N.W. 296; Knight v. Moline, E. M. & W. R. Co., 160 Iowa 160, 140
N.W. 839; Borghart v. City of Cedar Rapids, 126 Iowa 313, 101 N.W. 1120. It is equally fundamental that a failure to so plead operates as a waiver thereof. Robinson v. Allen, 37 Iowa 27; Borghart v. City of Cedar Rapids, supra; Belken v. City of Iowa Falls, supra. Not only is it incumbent upon the party seeking to avail himself of the statute of limitations as a defense to plead the same, but he must also show the facts constituting the bar. Harlin v. Stevenson, 30 Iowa 371; Tredway v. McDonal, 51 Iowa 663, 2 N.W. 567; Jenks v. Lansing Lbr. Co., 97 Iowa 342, 66 N.W. 231.
Had it appeared upon the face of the petition that appellee's cause of action was barred by the statute of limitations, advantage might have been taken thereof by demurrer. The date on which the incumbrance was paid by decedent did not appear in the petition, nor was it otherwise shown in the record until that fact was brought out in the testimony of a witness for plaintiff. The witness, who was the mortgagee, testified that the note was paid about 1917. It was then stipulated by the parties that the exact date thereof was "about July 1st, 1917." The plea of the statute was, therefore, interposed as soon as its availability became known to appellant. Authorities need not be cited to the point that the plea was altogether timely.
The stipulation that the incumbrance was paid about July 1, 1917, which was more than seven years prior to the commencement of this action, did away with the necessity for further proof on this issue. Likewise, the burden was upon appellee to allege and prove any facts relied upon by him to avoid the bar of the statute. Willits v. Chicago, B. & K. C. R. Co., 80 Iowa 531, 45 N.W. 916; Winney v. Sandwich Mfg. Co., 86 Iowa 608, 53 N.W. 421; Farrow v. Farrow, 162 Iowa 87, 143 N.W. 856. The nonresidence of appellant, if it existed for a sufficient length of time, could avail appellee in avoidance of the statute only.
No reply was filed to the amendment to the answer. Appellee now contends that the motion to strike was, in effect, a pleading, and equivalent to a reply. The motion to strike was more in the nature of a speaking demurrer than a reply. It was alleged in the motion that, upon the trial of another action in the district court of Marshall County, wherein decedent was plaintiff and appellant defendant, appellant claimed that she was a nonresident of the state of Iowa, and a resident of California, during the period in question, and that the original notice in this action was served upon her in that state. No proof of any kind was offered to sustain these allegations, except such as might be shown by the return of service of the original notice, which is not before us. This court cannot take judicial notice of the pleadings and evidence in some other case previously tried in the same county. The record in the prior case is not before us. There is nothing in the record from which this court can say that appellant was ever a nonresident of the state of Iowa. The mere fact that the original notice was served upon her in California falls far short of proving that she was a resident thereof. There was, in fact, neither plea nor proof of anything in avoidance of the bar of the statute.
It is suggested by counsel in argument that the plea of the statute was insufficient. This contention is without merit, as the facts constituting the bar are fully stated.
It is obvious that the court erroneously sustained appellee's motion to strike the plea of the statute of limitations unless, as further contended by him, it is not applicable to controversies between tenants in common wherein an accounting is asked. It is not always clear just when and under what circumstances the statute of limitations is applicable in actions by one tenant in common against another for an accounting in other actions. Prior to the enactment of Chapter 27, Laws of the Thirtyseventh General Assembly, now Section 10055. Code of 1924, authorizing the prosecution of an action by one tenant in common against another...
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