Liberty Loan Corp. of Des Moines v. Williams, 55116
| Decision Date | 18 October 1972 |
| Docket Number | No. 55116,55116 |
| Citation | 201 N.w.2d 462 |
| Parties | LIBERTY LOAN CORPORATION OF DES MOINES, Appellee, v. Harold V. WILLIAMS and Laura Williams, Appellants. |
| Court | Iowa Supreme Court |
W. Lawrence Oliver, Des Moines, for appellants.
Paul Noser, Jr. of Jones, Hoffmann & Davison, Des Moines, for appellee.
Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REES, JJ.
On September 5, 1969 a default judgment was entered in the within case in favor of plaintiff and against defendant Harold V. Williams in the amount of $209.35 purporting to represent the balance due on a promissory note allegedly executed by defendant Harold V. Williams in favor of plaintiff, together with interest accumulations and costs. The judgment was entered in a law action instituted in the district court of Polk County and designated as cause number 92795 in said court.
On September 3, 1970 defendant Harold V. Williams filed his petition to set aside the judgment in accordance with rule 253, Rules of Civil Procedure. In a second division of his motion to set aside judgment, defendant Williams alleged he had been damaged by the wrongful entry of judgment and the wrongful issuance of a writ of execution under which a joint bank account of both defendants in the Valley Bank & Trust Company of Des Moines had been subjected to garnishment. In such second division of his petition to set aside judgment, defendant Harold Williams prayed for judgment for actual damages for mental anguish, humiliation, embarrassment and inconvenience in the sum of $10,000, plus exemplary and punitive damages of $25,000. Plaintiff resisted the petition to set aside judgment and answered the prayer and division II of said petition.
On December 7, 1970, after hearing, the district court set aside and vacated the judgment so entered against defendant Harold Williams on September 5, 1969.
Subsequent to the ruling of the court setting aside the judgment, defendant Harold Williams filed answer denying the allegations of plaintiff's petition and affirmatively alleging that the promissory note had been paid in full. In a second division of his answer, which he denominated a 'cross petition', he again asserted his damage and prayed for judgment for compensatory damages in the sum of $10,000 plus punitive and exemplary damages in the sum of $25,000.
Thereafter both defendants, Harold V. Williams and Laura Williams, instituted a separate action in the district court of Polk County identified in the records of that court as law number 94912. Their petition was in two divisions; in division I defendant Harold Williams prayed for judgment against plaintiff in the amount of $10,000 actual damages and $25,000 exemplary damages. In division II Laura Williams (bottoming her claim on the fact the account in Valley Bank was a joint account and was subjected to garnishment, which inconvenienced her and caused her mental anguish, humiliation and embarrassment) sought compensatory damages in the sum of $20,000 plus punitive and exemplary damages in the amount of $50,000.
After Liberty Loan had filed answer in the second suit, that is to say, cause number 94912, Liberty Loan filed its motion to consolidate cause number 94912 with the action originally instituted on the promissory note of defendant Harold Williams. On December 28, 1970 hearing was had on the motion to consolidate, which motion had been resisted by the defendants, and the court entered its order consolidating both causes for trial on all issues. This ruling of the court consolidating the causes is assigned in the matter before us now as error requiring reversal.
The cause thereupon proceeded to trial to the jury, and during the course thereof the defendants Williams sought to introduce evidence respecting the value of services rendered them by their counsel as an element of damage. Objection was lodged to such line of testimony and a record was made out of the presence of the jury in the nature of a profert of testimony respecting the services rendered Williams by their counsel, Mr. Oliver, and the reasonable value thereof. Ruling on the profert was not immediately made by the court; in fact, it was reserved until plaintiff Liberty Loan Corporation dictated into the record as respects both causes of action motions to dismiss the claim of both defendants on the grounds Liberty Loan Corporation, in instituting its action, had acted under and upon the advice of counsel and relied thereon and that such reliance constituted a complete defense to the cross petition and counterclaim of defendant Harold Williams in cause number 92975 and upon the claim of both defendants in cause number 94912. The motions to dismiss were sustained by the court. Whereupon the matter was submitted to the jury only as to the claim of plaintiff Liberty Loan against defendant Harold Williams, which resulted in a verdict in favor of defendant Harold Williams and against the plaintiff Liberty Loan Corporation.
I. Defendants complain the trial court erred in its ruling consolidating for the purposes of trial the original action brought by plaintiff against Harold Williams on the promissory note and the action brought by both defendants against Liberty Loan for damages.
The modern trend evidenced by the almost universal reform in rules and laws affecting civil procedure is to combine in one litigation all actions arising out of one transaction, and all rules of civil procedure are to be liberally construed to this end. Best v. Yerkes, 247 Iowa 800, 816, 77 N.W.2d 23, 32. Rule 185, Rules of Civil Procedure, provides, 'Unless some party shows he will be prejudiced thereby the court may consolidate separate actions which involve common questions of law or fact or order a single trial of any or all issues therein. * * *'
The question as to whether actions should be consolidated for trial is largely within the discretion of the trial court. Davis v. Walter, 259 Iowa 837, 841, 146 N.W.2d 247; Hamdorf v. Corrie, 251 Iowa 896, 901, 101 N.W.2d 836, 839; Iowa Development Co. v. Iowa State Highway Comm., 252 Iowa 978, 983, 103 N.W.2d 487, 490, and citations.
Our present rule (185, R.C.P.) requires a showing rather than a mere statement of prejudice. The rule was amended in 1955, prior to which time a party could prevent a consolidation by merely claiming prejudice. The record does not disclose any showing on the part of defendants that they would be prejudiced by a consolidation of the cases for trial.
We find no abuse of discretion on the part of trial court with respect to its order consolidating the causes for trial.
II. Defendants further assert trial court erred in overruling its proffered testimony with respect to the services rendered by counsel for defendants and the charges made therefor. This assignment of error is so interrelated with the other assignments of error (namely, that trial court erred in dismissing the petitions of defendants and in overruling their motion to reconsider filed after verdict) that we shall treat...
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