Mathews v. Silsby Brothers
| Decision Date | 11 December 1924 |
| Docket Number | 36233 |
| Parties | J. H. MATHEWS, Appellant, v. SILSBY BROTHERS et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--O. D. WHEELER, Judge.
PLAINTIFF appeals from the ruling of the court below dismissing his cause of action and entering judgment against him for costs.
Reversed.
Bolter & Murray, for appellant.
P. E Roadifer, for appellees.
A demurrer was sustained by the court to the original petition, and an amended and substituted petition was, on motion, stricken. Appellant having elected to stand upon his substituted petition, and refusing to plead further, the cause was dismissed at his costs. These rulings present the questions for review in this court.
It appears from the allegations of the original petition that, on or about October 12, 1920, appellant and one William H. Barsby entered into a contract in writing whereby the former agreed to convey a certain residence property in Pisgah, Harrison County, to the latter, upon the final payment of certain annual installments on the purchase price; that, on or about September 1, 1921, Barsby vacated the premises; and that, during the same month, appellees Silsby Brothers entered thereon and removed a furnace, furnace pipes, registers, etc., and also certain plumbing and bathroom fixtures, all of which they had installed at the request of Barsby during the time he was in possession of the property.
The petition is in two counts. In Count 1, appellant asked judgment for the value of the furnace and bathroom fixtures, and in Count 2, for damages caused to the building by the removal thereof. A demurrer to the petition was interposed by appellee, upon the grounds that the only interest of appellant in the property at the time the alleged trespass was committed was that of a lien holder, in the nature of a mortgage, and that he therefore had no right of recovery, either for the trespass or for the conversion of the fixtures. The demurrer being sustained, appellant filed an amended and substituted petition, also in two counts. Appellees moved to strike the substituted petition, upon the sole ground that it merely repeated the allegations of the former pleading to which the demurrer had been sustained.
We are confronted at the outset with a controversy between counsel as to the nature of the causes of action pleaded in the original petition, and also in the substituted one. Appellant, in his brief and argument, interprets the latter as an action for damages to his security for the unpaid purchase price: whereas appellees contend that the theory of both pleadings is the same, and that the action is for trespass upon real property and for the conversion of personalty upon which appellant had no lien, and that neither action can be maintained by a mere lien holder; that the right to recover therefor, if any, is exclusive in the holder of the equitable title to the property.
If a different cause of action is stated in the amended and substituted petition, or if, by elaboration of the allegations of the former pleading, the same result is attained, then the ground of the motion to strike was not good, and should have been overruled. If the ruling of the court on the motion to strike was erroneous, then the amended and substituted petition is still open to attack by demurrer; as the grounds of the motion preclude it from being treated as a demurrer, and hence the sufficiency of the allegations of the amended and substituted petition to state a cause of action is not before us for decision.
It seems quite clear to us that the cause of action, if any is stated in the substituted pleading, proceeds upon a wholly different theory from that of the original petition, particularly as to Count 1 thereof. Without attempting to analyze the substituted pleading, or expressing an opinion as to its sufficiency to state a cause of action, we are of the opinion that it is susceptible of the interpretation placed thereon by counsel for appellant: that is to say that the theory of the pleader, notwithstanding some of the language used, tends to indicate that the attempt was to state a cause of action for damages to appellant's security, and not for trespass or conversion, in the sense suggested by appellees. With whether the cause of action is one that may be split, or should be pleaded in different counts of the petition, we are not now concerned. Many of the ultimate facts set up in the two pleadings are identical; but the relief sought in the substituted pleading, however unfortunate the language used, is, we think, for damages to appellant's security.
It is alleged in the substituted petition that the acts of appellees in removing the furnace and bathroom fixtures, together with the damages caused to the building in effecting such removal, were unlawful, and in disregard of the plaintiff's interest as a lien holder.
The right of a mortgagee to maintain an action against the mortgagor or a third party for damages to his security will not be denied for the sole reason that the diminution in the value thereof is the result of some wrongful act on the part of the mortgagor or of a third party, amounting to trespass or conversion. Appellees concede that a lien holder is not wholly without remedy in such cases, but suggest that it is exclusively in equity. With this contention we do not agree but, as will be observed from what we have already said, the question before us is a narrow one, and does not involve the sufficiency of the substituted pleading to state a cause of action on the theory contended for. We think the causes of action stated in the two pleadings are distinguishable, and that the motion to strike the substituted petition, which superseded the original pleading, should have been overruled. This conclusion...
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