Mitchell v. Beck

• Decision Date: 13 December 1916
• Docket Number: No. 30385.,30385.
• Citation: 160 N.W. 232,178 Iowa 786
• Parties: MITCHELL v. BECK.
• Court: Iowa Supreme Court

178 Iowa 786

160 N.W. 232

MITCHELL

v.BECK.

No. 30385.

Supreme Court of Iowa.

Dec. 13, 1916.

Supplemental opinion. Petition for rehearing overruled.

For former opinion, see 156 N. W. 428.

SALINGER, J.

The major argument of appellant for his claim that we should reconsider our position on his being denied trial by the equitable method rests upon his having alleged in answer that he had some credits due from the plaintiff which were not known to him, the defendant. We have declined heretofore to pass on the effect of this allegation because same was withdrawn. It is now contended we have erred because the allegation was not withdrawn at the time when transfer to equity was moved, though withdrawn some days later. The reasoning is that we have lost sight of our declaration that the right to transfer must be tested by the state of the pleadings at the time when transfer is asked. The flaw in the reasoning is that we have nowhere held that the transfer should have been granted if this withdrawn allegation had been in the pleadings when transfer was moved. What we have said consists of two unrelated statements: (1) The right to transfer to equity must depend on the state of the pleadings when the transfer is moved; (2) the effect of a withdrawn allegation need not be passed upon if such allegation is not put in evidence. Neither alone, nor the two together, declare that the pleadings as they were at the time the motion to transfer was made require the sustaining of that motion.

[1] What we are in effect asked to hold now is that, if the only allegation claimed to support a transfer is withdrawn after a motion to transfer has been overruled, we should disregard the rule of harmless error and reverse because there would be prejudicial error if an allegation which was abandoned had been retained. We must decline to do this.

[2] Passing this, and conceding for the sake of argument that, since said allegation was in the pleadings when the transfer was asked, this justified transferring something, it still remains true that the motion to transfer asked only that the entire case be transferred and tried as an equity suit, and that there were issues present which it should be conceded were law issues. If we assume there were equitable defenses to transfer, this could not deprive plaintiff of a jury trial on whether, for instance, defendant owed plaintiff for labor done. If it be conceded defendant had the right to have part of the case tried in equity, he did not ask for this, and, as we have before said, the court neither had the power nor the obligation to reframe the motion or to rule upon what the motion did not present.

II. It is said we have reversed Blair v. Walker, 50 Iowa, 376, and Burt v. Harrah, 65 Iowa, 643, 22 N. W. 910, and have, in effect established the rule that equity lacks jurisdiction in cases of complicated and mutual demands between parties. We think neither contention is well taken. We have not held that equity lacks power...