North Iowa Steel Co. v. Staley

• Decision Date: 12 December 1961
• Docket Number: No. 50350,50350
• Citation: 253 Iowa 355,112 N.W.2d 364
• Parties: NORTH IOWA STEEL COMPANY, A Partnership, Plaintiff-Appellee, v. Glenn STALEY, Staley Farm Supply Company, A Corporation, and Minneapolis & St. Louis Railway Company, A Corporation, Defendants, Glenn Staley, Staley Farm Supply Company, Defendant-Appellants.
• Court: Iowa Supreme Court

Page 364

112 N.W.2d 364

253 Iowa 355

NORTH IOWA STEEL COMPANY, A Partnership, Plaintiff-Appellee, v. Glenn STALEY, Staley Farm Supply Company, A Corporation, and Minneapolis & St. Louis Railway Company, A Corporation, Defendants Glenn Staley, Staley Farm Supply Company, Defendant-Appellants.

No. 50350.

Supreme Court of Iowa.

Dec. 12, 1961.

Hobson & Cady, Hampton, for appellants.

Levinson & Bryant, Mason City, for appellee.

SNELL, Justice.

The question presented on this appeal is whether a counterclaim is permitted in an action to foreclose a mechanic's lien. The appeal is from a ruling on a motion to dismiss the counterclaim. Only the pleadings, motions and rulings thereon are before us. Our consideration is limited thereto.

Plaintiff claims that pursuant to contract two grain storage buildings were erected for defendant. $30,000.00 has been paid and $30,230.00 remains unpaid on the contract price. Plaintiff filed a mechanic's lien and sought foreclosure thereof. Defendant answered alleging breach of warranty and counterclaimed for damages resulting from defective materials, workmanship and misrepresentations of plaintiff as to mechanical soundness and fitness of the structures. Plaintiff moved to dismiss the counterclaim as violative of Sec. 572.26 of the Code, I.C.A. The trial court relying on this statute sustained the motion. Defendant appealed.

Sec. 572.26 of the Code, I.C.A. provides: 'An action to enforce a mechanic's lien shall be by equitable proceedings, and no other cause of action shall be joined therewith.'

In considering this statute, Rule 29, R.C.P., 58 I.C.A., should not be overlooked. This rule provides: 'A pleading must contain a counterclaim for every cause of action then matured, and not the subject of a pending action, held by the pleader against any opposing party and arising out of the transaction or occurrence that is the basis of such opposing party's claim, unless its adjudication would require the presence of indispensable parties of whom jursdiction cannot be acquired. A final judgment on the merits shall bar such a counterclaim, although not pleaded.'

Cook's Rules of Civil Procedure, Volume I, page 205, in discussing Rule 29, states:

'The counterclaim is compulsory where it arises out of the transaction or occurrence that is the basis of the opposing party's claim if:

'1. It is then matured.

'2. If it is not the subject of a pending action.

'3. It must be held by the pleader against the opposing party.

'4. It must not require the presence of indispensable parties of whom jurisdiction cannot be acquired.'

The counterclaim in the case at bar meets these tests.

I. While the procedure of pleading a counterclaim may not be unusual in trial courts, neither appellants' brief nor our research disclose any decisions by our court on the right to counterclaim under Sec. 572.26 of the Code, I.C.A. However, persuasive authority is found in the use and defining of the same words in cases under other statutes.

Joinder of other causes of action is barred or limited not only in mechanic lien foreclosures but also in actions for divorce, partition and replevin. Partition is by equitable proceedings with a limitation as to joinder and counterclaims. Rule 275, R.C.P. Replevin is an ordinary proceeding with a statutory bar against joinder and counterclaims. Sec. 643.2, Code of Iowa, I.C.A. The prohibition against counterclaims does not appear in the divorce and mechanic lien statutes.

Where a counterclaim is to be barred the legislature said so. We are not justified in erecting a bar where the legislature did not so provide. The express mention of the one thing implies the exclusion of the other. This rule is expressed in the often quoted Latin phrase 'expressio unius est exclusio alterius.' We have said: 'The legislative intent is expressed by omission as well as by inclusion.' Dotson v. City of Ames, 251 Iowa 467, 471, 472, 101 N.W.2d 711, 714. Archer v. Board of Education, 251 Iowa 1077, 1084, 104 N.W.2d 621. In mechanic lien foreclosure, a counterclaim is not specifically barred.

II. If counterclaims are not barred by specific mention, are they barred by the prohibition against joinder? The authorities say no. In Linscott v. Linscott, 243 Iowa 335, 51 N.W.2d 428, 30 A.L.R.2d 789, the plaintiff, husband, brought an action to set aside...