Low v. Fox

• Decision Date: 10 June 1881
• Citation: 9 N.W. 131,56 Iowa 221
• Parties: LOW AND ANOTHER v. FOX.
• Court: Iowa Supreme Court

56 Iowa 221

9 N.W. 131

LOW AND ANOTHER

v.FOX.

Supreme Court of Iowa.

Filed June 10, 1881.

Appeal from Madison circuit court.

Action upon an account. It is averred in the petition that the account originally accrued against defendant and in favor of Samuel Low, and that Samuel Low assigned the same to E. H. Low, and that said account is now the property of the latter. The defendant answered in denial of the claim made against him by the plaintiffs, and by setting up an account against Samuel Low, and claiming judgment against him thereon. He also, by way of counter claim, set up a claim against the said E. H. Low for $25, based upon the following alleged facts: That in the year 1879 one Hordly executed a chattel mortgage to one Ratcliff and that afterwards said Ratcliff sold and assigned to E. H. Low the note which the chattel mortgage was given to secure; that defendant bought a part of the mortgaged property and assumed the payment of the note, and, after paying the same, demanded of E. H. Low that he should enter satisfaction of the mortgage, which he refused to do, and for such refusal the sum of $25 is claimed as a statutory penalty. There was a trial by jury, which resulted in two verdicts-- one in favor of the defendant and against E. H. Low, for the statute penalty of $25; and another in favor of the defendant and against Samuel Low, for $37.28. A motion for a new trial was made by the plaintiffs, which was sustained as to the verdict against E. H. Low, and overruled as to the verdict against Samuel Low. All of the parties appeal.Polk & Seevers, for plaintiffs.

A. W. C. Weeks, for defendant.

ROTHROCK, J.

1 The judgment must be affirmed upon the plaintiff's appeal, because of the insufficiency and inexplicitness of the assignment of errors. The only attempt at an assignment of errors found in the record is as follows: “(1) Assignments of errors are that the court should have sustained in full the motion for new trial, and should have set aside both verdicts; (2) the other errors assigned are set out at length in Nos. 2, 3, 4, 5, 6 and 7 of grounds for new trial, on pages 12 and 13 of record.” It is scarcely necessary to say that this assignment of errors is too general to meet the requirements of the statute as interpreted by repeated decisions of this court.

2. The next inquiry is, did the court err in granting a new trial as to the verdict for the statute penalty? The Code, § 3327, provides that “whenever the amount due on...