Rowe v. Barnes

• Decision Date: 10 February 1897
• Citation: 70 N.W. 197,101 Iowa 302
• Parties: ROWE v. BARNES ET AL.
• Court: Iowa Supreme Court

101 Iowa 302

70 N.W. 197

ROWE

v.BARNES ET AL.

Supreme Court of Iowa.

Feb. 10, 1897.

Appeal from district court, Buena Vista county; W. B. Quarton, Judge.

Action at law to recover the amount alleged to be due on a promissory note. There was a trial, in which a jury was impaneled, but discharged before the cause was submitted to it, and a judgment was rendered in favor of the defendant. The plaintiff appeals. Reversed.I. W. Bane, for appellant.

A. D. Bailie, for appellees.

ROBINSON, J.

The note in suit was made by the defendants to the plaintiff on the 2d day of July, 1891, for the sum of $300, payable two years after its date. The note was given for whatever interest the plaintiff might have in certain land in the state of Wisconsin. The defendant Miranda A. Barnes is the widow, and the plaintiff is the daughter, of Simeon F. Barnes, who died testate, seised of the land referred to. The defendant Newell F. Douglas is a son-in-law of Mrs. Barnes and a brother-in-law of the plaintiff. It is claimed that the will of the decedent devised the land to Mrs. Barnes, but that the description was erroneous, in that it located a part of the land in the wrong quarter section. The plaintiff claimed an interest in the land as an heir of the decedent, and the note was given to her for a release which she executed in the form of a deed without covenants of title or warranty. It purported to convey to Douglas “all the estate, right, title, interest, and claim whatsoever” of the plaintiff and her husband in the land. After that and the note were given, it is claimed that Mrs. Barnes applied to the proper court in Wisconsin for an interpretation of the will, and that the court held and adjudged that it gave to her an absolute title to the land in question. The defendants now contend that there was no consideration for the note.

1. The plaintiff filed to the answer of the defendants a reply which contained several paragraphs, some of which were stricken out on motion of the defendants. The motion assailed the entire reply, and not any specific portion of it; but the plaintiff was not prejudiced by the ruling, even if technically erroneous, for the reason that the portion of the reply stricken out contained mere denials, which were implied by law, or averments in regard to matters which, so far as material, could have been proven under the issues presented by the petition and answer.

2. The court permitted the defendants to introduce in evidence an instrument which is claimed to be a copy of proceedings of the county court of Walworth county, Wis., in regard to the will and the judgment of that court construing it. The defendants were also permitted to introduce a certificate of the county judge of that county, which certifies that the instrument referred to was a true copy of the proceedings on file and of record in his office in the matter of the estate of Simeon F. Barnes, deceased, and that by the statutes of the state of Wisconsin the county judge is made clerk of his own court, and has charge of the records, and custody of the seal of the court. The alleged copy of the proceedings of that court was...