Mueller Lumber Co. v. McCaffrey

• Decision Date: 19 December 1908
• Citation: 141 Iowa 730,118 N.W. 903
• Parties: MUELLER LUMBER CO. v. MCCAFFREY.
• Court: Iowa Supreme Court

141 Iowa 730

118 N.W. 903

MUELLER LUMBER CO.

v.MCCAFFREY.

Supreme Court of Iowa.

Dec. 19, 1908.

Appeal from District Court, Scott County; A. B. Barker, Judge.

“Not to be officially reported.”

Jack and H. S. McCaffrey and C. W. Major became indebted to plaintiff for lumber in the sum of $324.76 and for material to the Penn Oil & Supply Company in the sum of $63.31, which was assigned to plaintiff. On December 8, 1904, the defendant entered into a written agreement with said persons to pay the same. It appears that they were in partnership in the opening and improvement of a coal mine in Illinois with a view to its operation. The Henepin Coal Company has been incorporated by them, but neither the property nor their lease of the land had been transferred to it, the land belonging to John McCaffrey Towing & Mining Company, of which defendant was principal stockholder. According to the recitals in the contract, the lease has been forfeited. All the property acquired by the parties first mentioned, together with the lease, tracks, tools, machinery, and the like used in connection with the mine, were turned over to defendant in consideration of his agreement to pay the debts of the copartnership Several defenses were interposed, all of which were resolved by the court and jury against defendant, and he appeals. Affirmed.Sharon & Donegan, for appellant.

Isaac Petersbergher, for appellee.

LADD, C. J.

The appeal was not perfected within six months from the entry of judgment, and for this reason errors in the record other than disclosed in the motion for new trial cannot be considered. The order overruling the motion for new trial was within six months before the appeal, and for this reason is reviewable in this court. Section 4110 provides that: “Appeals from the superior and district courts may be taken to the supreme court at any time within six months from rendition of the judgment in any cause or order appealed from and not afterward.” Section 4106 obviates the necessityof filing a motion in order to challenge any ruling in the record, and this even though such motion be pending at the time. Hunt v. Railway, 86 Iowa, 15, 52 N. W. 668, 41 Am. St. Rep. 473. The ruling by which a motion for new trial is overruled remains an appealable order, however, and the subject of review. In re Estate of Bishop, 130 Iowa, 250, 106 N. W. 637. The result is, a litigant may, but is not required to, challenge the correctness of the court's rulings a second time. Section 3755 of the Code expressly authorized a motion for new trial based on any or all of nine grounds. These need not be enumerated. It is enough for present purposes to say that one of these is “for error of law occurring at the trial, excepted to by the party making the application,” and another that the verdict is not sustained by sufficient evidence. The manifest design of such motion is to enable the court to review its rulings entered during the trial at greater leisure and upon full investigation, to the end that, if errors are discovered, these may be corrected, rather than the parties be put to the trouble and expense of an appeal. The ruling on each point raised, though it may be but a repetition of a previous ruling, is quite as decisive. The statute expressly authorizes either party to challenge the correctness of any ruling during the trial by motion for new trial, and he is entitled to a ruling thereon. This involves a decision covering each ground of the motion, and, as the order granting or denying a new trial, is appealable. This necessarily authorizes a review of each of the several grounds asserted. For this reason, separate assignments of error were exacted under a former statute requiring assignments of error. Moffit v. Albert, 97 Iowa, 213, 66 N. W. 162. Because errors asserted in a motion for new trial appear in the record and might be taken advantage of on appeal, had no such motion been filed, furnishes no ground for saying that they may not be reviewed when raised in a motion for new trial, if the appeal from the ruling thereon be timely, even though more than six months has elapsed since judgment. Kendall v. Lucas County, 26 Iowa, 395. Otherwise, the right to appeal from the ruling on a motion for new trial, save because of something transpiring subsequent to the verdict or decree, would be valueless. In the recent case of McLaughlin v. Hubinger Bros. Co., 135 Iowa, 595, 113 N. W. 475, it appears to have been held in such a case that only errors not inhering in the judgment may be reviewed. The decision last above cited, in which the contrary was held, evidently was overlooked, and the authorities relied on do not appear, upon closer examination, to support the conclusion. In Cohol v. Allen, 37 Iowa, 449, the amendment to the motion for new trial was treated as a petition therefor on the ground of newly discovered evidence, and the motion for new trial at once overruled, and judgment entered. The amendment was ruled on long after, and, as the appeal was taken more than six months subsequent to the entry of judgment, only the ruling on the amendment was considered. In Carpenter v. Brown, 50 Iowa, 451, the petition for new trial on the ground of newly discovered evidence was filed more than six months after the entry of judgment, and therefore after all right to appeal from rulings inhering therein had expired. In so far as appears, there was no motion for new trial. In Patterson v. Jack, 59 Iowa, 632, 13 N. W. 724, the motion for new trial was not filed until four months after judgment, and was therefore too late, save on the ground of newly discovered evidence, and for this reason none other than the ruling on this ground was reviewed. In Bosch v. Bosch, 66 Iowa, 701, 24 N. W. 517, the appeal was 10 months after the entry of judgment, and, though the motion for new trial was overruled within six months prior to the appeal, no assign ments of error were made, and for this reason the court declined to consider those argued and dismissed the appeal. In Jones v. Railway, 36 Iowa, 68, the court merely held that the ruling on a motion for change of venue might be challenged on appeal from the judgment subsequently entered. It does not appear in Wambach v. Grand Lodge, 88 Iowa, 313, 55 N. W. 516, whether a motion for new trial had been filed. In Palmer v. Rogers, 70 Iowa, 381, 30 N. W. 645, the court adjudged that in an appeal from final judgment an order setting aside default may be reviewed. There are decisions in other jurisdictions to the effect that time of appeal may not be extended by delay in ruling on motions for new trial, but these are based on statutes limiting the period within which an appeal may be taken from the entry of judgment and not, as in this state, from the entry “of...