McCormick v. Lundburg

• Decision Date: 28 May 1888
• Parties: MCCORMICK v. LUNDBURG et al
• Court: Iowa Supreme Court

38 N.W. 409

74 Iowa 558

MCCORMICK v. LUNDBURG et al

Supreme Court of Iowa, Des Moines

May 28, 1888

Decided May, 1888

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

PLAINTIFF executed to defendant Lundburg his promissory note for four hundred dollars, and to secure the same gave a mortgage on real estate. Lundburg indorsed and delivered the note to defendant Morgan. He subsequently gave to the Chicago Lumber Company a written assignment in which he recited that Morgan held it for collection, and that he had no other interest in it. Before the maturity of the note, plaintiff brought an action in equity for the cancellation of it and the mortgage. Morgan answered, alleging ownership of the note, and that he was an innocent purchaser for value; and in a cross-petition the note in the meantime having matured, prayed judgment for the amount. The Chicago Lumber Company intervened, claiming title to the note under the assignment from Lundburg, and praying for judgment against plaintiff for the amount. It was subsequently stipulated between the parties that the amount of plaintiff's indebtedness on the note was $ 332.80, and that he should pay that amount to the intervenor, and it should pay to Morgan the amount of his interest in the note as the same should be determined by the court on the hearing. Plaintiff paid the stipulated sum to intervenor, and the note and mortgage were ordered to be cancelled and surrendered to him. On the hearing the court found that Morgan's interest was one hundred and twenty-five dollars, and entered judgment in his favor for that amount against intervenor. It however, refused to allow him anything for attorney's fees; the note containing a provision for attorney's fees in case suit should be brought on it. Both parties appeal.

AFFIRMED.

E. S Wishard, for intervenor.

Seth Morgan, pro se.

OPINION

REED, J.

I.

A preliminary question is whether the action is triable de novo in this court. Plaintiff's action was in equity, and the issue between intervenor and defendant was tried to the court. Counsel for the intervenor contends that as no order was made in the court below transferring the issue to the law side for trial, the case should be regarded as an equitable one, and tried according to the rules governing the trial of causes of that character. The uniform practice of this court has been to regard cases which were tried in the lower courts under the rules governing the trial of equitable actions as belonging to that class, whether any question of strictly equitable jurisdiction arose or not. But, in determining whether a case shall here be regarded as at law or in equity, the mere fact that it was tried to the court, rather than...