Reed v. Gaylord, 55955

• Decision Date: 27 March 1974
• Docket Number: No. 55955,55955
• Citation: 216 N.W.2d 327
• Parties: Margaret REED et al., Appellants, v. Larry GAYLORD, Justice of the Peace in Ross Township in Fremont County, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 327

216 N.W.2d 327

Margaret REED et al., Appellants, v. Larry GAYLORD, Justice of the Peace in Ross Township in Fremont County, Iowa, Appellee.

No. 55955.

Supreme Court of Iowa.

March 27, 1974.

Genung & Rogers, Glenwood, for appellants.

Edgar E. Cook, Glenwood, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES and McCORMICK, JJ.

MASON, Justice.

This is an appeal by plaintiffs, Margaret Reed, her husband Kenneth Reed, and Kenny Lee Reed, from the district court's ruling dismissing their petition for mandamus and quashing of writ of certiorari. Defendant, Larry Gaylord, at the time material was a justice of the peace for Ross Township in Fremont County.

Before discussing the issues presented for review it is necessary for a proper understanding of the questions presented that some details showing the factual background giving rise to the present lawsuit be set out.

January 24, 1968, Charles W. Davies entered into a written contract for the sale of certain real estate consisting of a residence and famr land in Fremont County to Margaret Reed and Kenny Lee Reed for the sum of $4500 payable in monthly installments of $75.

After the vendees defaulted in the payments due December 15, 1970, January 15, 1971, and February 15, Davies caused a notice of forfeiture of real estate contract to be served on them March 10, 1971. Section 656.2, The Code. The notice of forfeiture of real estate contract with proofs of service attached was recorded in the records of the recorder's office in Fremont County. Section 656.5, The Code. When the vendees did not vacate the premises Davies caused a three-day notice to quit addressed to Kenny Lee Reed and Margaret Reed to be served April 29.

May 12 Davies filed a petition in the justice of the peace court of Larry Gaylord naming Margaret Reed, Kenneth Reed and Kenny Lee Reed as defendants. Davies asked for judgment removing the named defendants from the premises and for judgment putting him in possession thereof.

The justice of the peace issued original notices addressed to all defendants setting the hearing for May 26, 1971, at 2 p.m. Reeds filed answer and a demand for jury trial on the appearance date.

In division I Margaret Reed and Kenny Lee Reed for separate answer admitted existence of the contract, the default and service of notice of forfeiture but alleged facts relied on to estop Davies from working a forfeiture of their rights under the contract. Margaret and Kenny Lee claimed right to immediate possession of the real estate involved.

Division II was the separate answer of Kenneth Reed. He realleged all paragraphs of the separate answer of the other two Reeds by reference and alleged he was the lessee of the real estate involved under an oral lease with Margaret and Kenny Lee. Kenneth alleged he had sublet the premises except the dwelling house thereon to Ray Powers who had entered into and taken possession of the crop land before March 1 and who was in possession thereof on March 10, but had not been served with notice of forfeiture. Kenneth asked

In division III Reeds all joined in alleging Davies' action was one in ejectment under chapter 646, The Code, and prayed that the petition be dismissed because of Davies' failure to attach an abstract of title to his petition or, in the alternative, that he be required to amend by attaching such abstract before they were required to proceed further in the matter.

In the remaining divisions Reeds alleged Gaylord, before whom the proceedings were pending, was required under the provisions of section 601.37, The Code, 1971, without proceeding further, to certify the case and papers with the transcript of the docket showing the reason for such transfer to the district court for trial of the matter on the merits.

On the appearance date and hour a hearing consisting of a discussion between counsel and Gaylord whether it was mandatory that the cause be removed to the district court and whether the action was for ejectment or forcible entry and detention was had. The justice of the peace announced he would take the matter under advisement for the purpose of studying the issues raised by that division and would make an appropriate ruling at a future date. Reeds contend there was no trial, no witnesses sworn nor evidence offered.

About June 5 Reeds' counsel received in the mail from Gaylord a 'Judgment and Decree.' It stated: (1) The action was for forcible entry and detention pursuant to chapter 648, The Code. (2) The matter of title would not be in issue. (3) 'Defendants offered no evidence whatever in support of their answer and request for jury trial was denied and request for transfer to District Court is hereby denied and there having been no evidence, the court decides this matter on the papers filed herein and finds that the contract referred to has been forfeited and cancelled in a legal and proper manner * * *.' (4) It was then ordered that Davies was entitled to the real estate and therefore the Reeds should be evicted and the vendor restored to possession.

June 14, 1971, Reeds instituted an action in the Fremont district court. In division I of their petition the facts of Davies' action which had culminated in Gaylord's judgment and decree were set out. It was allged Gaylord had refused to treat the proceedings instituted by Davies as being an action for ejectment pursuant to chapter 646, The Code. Plaintiffs sought a writ of mandamus commanding Gaylord to vacate his actions in denying Reeds a jury trial and directing him to transfer the cause to the district court.

In the other division Reeds sought a writ of certiorari and a determination after hearing thereon that Gaylord's acts of continuing to exercise jurisdiction over the proceedings after Reeds had failed their verified answer placing title in issue be annulled and decreed void. In the alternative, plaintiffs asked that Gaylord's acts in purporting to render a decree and judgment without granting Reeds' demand for jury trial be annulled and decreed void.

The writ was issued and the execution on the property was stayed by Judge Martin. The writ required defendant to return a transcript of the record and proceedings of the action between Davies and Reeds. Writ and transcript were returned by Gaylord June 18, 1971. Judge Johnson found that Davies' action was for forcible entry and detention and not ejectment. He found Gaylord correct in holding title not in issue and refusing to grant transfer of the cause to district court. The request for mandamus was held improper because plaintiffs' proper remedy was appeal alleging error.

The court quashed the writ of certiorari after finding that no factual issue was presented for the consideration of a jury, the matter was moot, and was waived by the Reeds when they elected to present only divisions III and IV of their answer in the justice of the peace court. Thus, Gaylord did not exceed his jurisdiction and did not act illegally. Finally, the court stated even if a fact issue had been generated there is no general right to a jury trial in special or other proceedings such as an action for forcible entry or detention.

Reeds contend the district court erred: (1) in dismissing the writ of mandamus and (2) if mandamus was properly denied, then in the alternative, in quashing the writ of certiorari.

As noted in divisions I and II of the answer filed in justice court, Reeds had stated facts allegedly constituting an estoppel to declare a forfeiture of the land contract. In division III they asserted the petition was an action for ejectment and in division IV they sought transfer of the action to the district court. However, both in justice court and district court the only argument concerned divisions III and IV. Note this statement by the district court, 'Only Divisions III and IV were presented by the defendants (Reeds) at the hearing. This is conceded by the defendants even though in their petition for the writ of mandamus and certiorari the defendants state that only division IV was presented below.' The contentions asserted relating to estoppel were not urged on Reeds' appeal to the district court. Nor are they a basis for reversal under either assignment argued in this court under our view.

I. Reeds' first contention is that district court erred in dismissing the writ of mandamus.

Section 661.1, The Code, defines mandamus: 'The action of mandamus is one brought to obtain an order commanding an inferior tribunal, board, corporation, or person to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust, or station.'

There are several well-established statutory or judicial principles governing mandamus. Mandamus can compel an inferior tribunal to act but cannot control its discretion. Section 661.2, The Code; Stith v. Civil Service Com'n of Des Moines, 159 N.W.2d 806, 808 (Iowa 1968). If there is a plain, speedy and adequate remedy in the ordinary course of the law mandamus does not lie. Section 661.7. Mandamus will not lie where certiorari is available, because certiorari offers a plain, speedy and adequate remedy in the ordinary course of the law. Stith v. Civil Service Com'n of Des Moines, 159 N.W.2d at 809; Riley v. City of Des Moines, 203 Iowa 1240, 1244, 212 N.W. 716, 718; Sullivan v. Robbins, 109 Iowa 235, 238--239, 80 N.W. 340, 341. Where there is right to appeal or to take writ of error such is a plain, speedy or adequate remedy in the ordinary course of the law and therefore mandamus is improper. Pierce v. Green, 229 Iowa 22, 45, 294 N.W. 237, 251; 55 C.J.S. Mandamus § 22; 52 Am.Jur.2d, Mandamus, section 9.

Since mandamus is a summary and extraordinary writ it will not be issued in doubtful cases but only where the rights and duties are clear and there is no other speedy and adequate remedy in the ordinary course of the law. Headid v. Rodman, 179 N.W.2d 767, 770--771 (Iowa 1970).

Reeds had alleged as a basis...