Lessenich v. Sellers

• Decision Date: 30 January 1903
• Citation: Lessenich v. Sellers, 119 Iowa 314, 93 N.W. 348 (Iowa 1903)
• Parties: LESSENICH v. SELLERS ET AL.
• Court: Iowa Supreme Court

119 Iowa 314

93 N.W. 348

LESSENICH

v.SELLERS ET AL.

Supreme Court of Iowa.

Jan. 30, 1903.

Appeal from district court, Woodbury county; Frank R. Gaynor, Judge.

April 22, 1897, the plaintiff entered into a written contract with defendant by the terms of which she agreed to convey to him three lots, with flats thereon, in Sioux City, for 1,770 acres of land in Cherokee county, subject to incumbrance of $6,000, and to pay in difference $4,000 in cash and $12,000 upon the completion of the deal. Each agreed to convey to the other by warranty deed, “with abstract showing perfect title.” “Each of the above parties agree to place their respective deeds in the Merchants' National Bank of Sioux City, Iowa, until the abstracts are completed, or the deal is to be completed, on or before thirty (30) days from date. * * * The said Mary A. Lessenich is to give the rents to the said Warren Sellers of all her property from May 1st, 1897, and the said Warren Sellers is to give possession of his property in March 1st, 1898, according to a lease thereon.” Each party signed and acknowledged deeds to the other and deposited them with contract in said bank. The plaintiff paid $3,400 down, and shortly afterwards defendant forwarded abstracts of his land, which were handed by agents, without plaintiff's authority, as she claimed, to an attorney for examination. In a memorandum the attorney pointed out certain incumbrances which should be removed, and this was forwarded to Sellers, who made the required corrections. Plaintiff then demanded the abstract in order to submit them to her attorney, and they were delivered to the latter May 17th; and on the 21st of that month he dictated a letter to defendant, which she signed and mailed, to the effect that she revoked the agreement on the following grounds: (1) That it was obtained by fraud; (2) that the abstracts failed to show perfect title; and (3) that the abstracts affirmatively showed it beyond defendant's power to so correct them as to exhibit perfect title; and demanded the return of the money paid. Thereafter, as the petition alleges, but subsequent to the lapse of 30 days within which the transaction was to be closed, defendant contracted to exchange his land to one Shepard, and on the 18th day of August, 1897, this action was begun by plaintiff to recover the amount she had paid, with interest. The petition further averred that the place of performance was in Woodbury county; that defendant claimed an interest in her lots; and prayed, in addition to recovery of the money, that the contract be canceled, and that the bank deliver back her deed, and the defendant be decreed to have no title or interest in the lots. The defendant moved that the cause be transferred to the county of his residence, but this was denied. He then answered, and upon hearing the relief prayed was granted. He appeals. Modified and affirmed.E. C. Herrick and Lewis & Lewis, for appellant.

T. F. Bevington, for appellee.

LADD, J.

The plaintiff, at the beginning of this action, was a resident of Woodbury county, where the defendant's bank also was located. The defendant Sellers was a resident of Cherokee county, and to it he moved the cause be transferred on the ground of such residence, that he was the sole party in interest, and that the bank was in no wise interested in the controversy. The contract stipulated that “each of the above parties agree to place their respective deeds in the Merchants' National Bank of Sioux City, Iowa, until the abstracts are completed, or the deal is to be completed, on or before 30 days from date.” The only possible interest the bank had in the transaction was as custodian of these deeds. The petition alleged that Sellers had put performance beyond his power, and failed to aver refusal of the bank to deliver plaintiff's deed to her upon demand. Affidavits were filed to the effect that Sellers made no claim to the deed, and had not done so for some time prior to the beginning of the action. As the bank made no appearance or objection to the transfer, much might be said in support of appellant's contention. Railway Co. v. O'Neill, 81 Iowa, 463, 46 N. W. 1100;Mill Co. v. Bowen, 7 Iowa, 465. Unfortunately for him, however, the ruling has not been challenged in the manner essential to invoke the jurisdiction of this court. The constitution prescribes two methods of trial: “The supreme court shall have appellate jurisdiction only in cases in chancery and shall constitute a court for the correction of errors at law under such restrictions as the general assembly may by law prescribe.” Section 4, art. 5. The jurisdiction thus conferred in equity suits is that possessed by chancery courts at the time of the adoption of the constitution, and, in the absence of restrictions, an appeal brings the whole case before us for review and the retrial of facts as well as the law. See 2 Enc. Pl. & Prac. 31. Hence errors of any character which do not involve the power of the court to finally dispose of the case need not be assigned. Thus rulings on the admissibility of evidence contained in the record may be reviewed without assignment of error, for the evidence is before the court to consider or reject, according to its conclusion. Smith v. Wellslager, 105 Iowa, 140, 74 N. W. 914.

So, too, the ruling on a motion or demurrer may be reviewed in passing on the merits when the propriety of finally disposing of the case is not involved. But it seems to be quite well settled in this state that rulings which go to the very right to a hearing de novo and a determination on the merits cannot be questioned without an assignment of error. As said in Powers v. O'Brien County, 54 Iowa, 501, 6 N. W. 720, after referring to several statutes: “When an equitable case is tried anew upon an appeal to this court, that is ordinarily an end of the controversy. It is a trial anew of the whole controversy between the parties. But where there is an appeal from an order sustaining or overruling a demurrer or motion, and there has been no trial anew in this court of the whole controversy, the general rule is that the cause is left in such condition as to require that it be remanded for a trial in accord with the opinion of this court.” See, also, to the same effect, Patterson v. Jack, 59...