State v. Cordaro

• Citation: 233 N.W. 51,211 Iowa 224
• Decision Date: 18 November 1930
• Docket Number: 40576
• Parties: STATE OF IOWA, Appellee, v. JOE CORDARO et al., Appellees; VERNON W. LYNCH, Appellant
• Court: United States State Supreme Court of Iowa

233 N.W. 51

211 Iowa 224

STATE OF IOWA, Appellee, v. JOE CORDARO et al., Appellees;

VERNON W. LYNCH, Appellant

No. 40576

Supreme Court of Iowa, Des Moines

November 18, 1930

Appeal from Polk District Court.--O. S. FRANKLIN, Judge.

This was a proceeding brought by the State of Iowa, as plaintiff to recover on an appeal bond in a criminal case, after the judgment of the Polk County district court had been affirmed by the Supreme Court. Joe Cordaro was the defendant in the criminal proceedings, and the principal on the appeal bond while Wilbert J. Smith was the surety thereon. Vernon W Lynch was impleaded by the defendant Wilbert J. Smith through a cross-petition. The theory of the cross-petition was that the cross-defendant, Lynch, had agreed to indemnify the cross-petitioner, Smith. After a jury trial, a verdict was returned in favor of the cross-petitioner, Smith, and judgment accordingly entered against the cross-defendant, Lynch. Consequently Lynch, the cross-defendant, appeals.

Reversed.

Ralph N. Lynch, for appellant.

Carl S. Missildine, County Attorney, for the State, appellee.

Bradshaw, Schenk & Fowler, for Wilbert J. Smith, appellee.

KINDIG, J. MORLING, C. J., and EVANS, FAVILLE, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

On December 10, 1926, the defendant Joe Cordaro was indicted by a Polk County grand jury for the crime of uttering a forged instrument. Thereafter, during the January, 1927, term of the Polk County district court, Cordaro was convicted by a jury, and later, the district court sentenced him to serve a term of 15 years in the penitentiary and pay a $ 1,000 fine. The appeal bond was fixed at $ 1,000. Cordaro appealed from the Polk County district court to the Supreme Court, and executed a bond therefor, as principal. Wilbert J. Smith, defendant and cross-petitioner and appellee, signed that bond, as surety. As a result of the appeal, the Supreme Court, on March 13, 1928, affirmed the judgment of the district court. Hence, the principal and surety on the appeal bond became liable for the $ 1,000 fine and costs, according to the conditions of that bond. This proceeding was then instituted by the State against the principal and surety on the bond, to recover the $ 1,000 fine and costs. Whereupon, Wilbert J. Smith, the surety, defendant in the State's action to recover on the bond, became a cross-petitioner against the cross-defendant and appellant, Vernon W. Lynch.

In the cross-petition, the appellee Wilbert J. Smith asked judgment against the appellant, Vernon W. Lynch, for any amount of money which the said Smith might, under the foregoing appeal bond, be adjudged liable for by the district court. The basis for recovery set forth in the cross-petition was that Lynch, the appellant, had agreed to indemnify and save the appellee Smith harmless from any liability on the bond. Judgment was entered against Cordaro and Smith in favor of the State. No appeal is taken therefrom, and therefore the same has become a finality. Furthermore, the jury returned a verdict in favor of the appellee Smith against Vernon W. Lynch, appellant, on the issues raised by the cross-petition, and judgment thereon was entered accordingly. From this Vernon W. Lynch has appealed, and the matters involved in the cross-petition are the only issues now before us.

Many reasons are assigned by the appellant, Lynch, as to why the judgment of the district court should be reversed; but we find it necessary to consider but one of them, and that one relates to the action of the district court in admitting in evidence an exhibit known in the record as "3," which, in words and figures, is as follows:

"EXHIBIT 3

"No. 108. 9/17, 1926. Received of George Cordaro Thirty-nine Hundred and no/100 Dollars to be used for the purpose of settlement with Surety Companies $ 3900.00. Sgn. Vernon W. Lynch."

Vernon W. Lynch, who signed the foregoing exhibit, is a practicing attorney in Des Moines, and the appellant here. Appellant was the attorney for the defendant Cordaro in the Polk County district court and the Iowa Supreme Court, respectively, during the trial and appeal of the case above-mentioned, known as "State of Iowa v. Joe Cordaro." Accordingly, appellant prepared and procured the appeal bond aforesaid, on which the appellee Smith was the surety. For his cause of action against the appellant in the cross-petition, the appellee states, among other things:

" * * * 3. That to induce this defendant [the appellee] to sign said bond [the appeal bond above-mentioned], said defendant [appellant] Vernon W. Lynch orally stated, represented, and promised to this defendant [appellee] that he, the said Lynch [appellant], had collected from said defendant Joe Cordaro [the principal on the bond] ample funds and security to pay said fine ($ 1,000) imposed by the district court of Polk County, Iowa, and all costs that might be taxed against said Cordaro in the event of an affirmance of his said conviction by the Supreme Court of the state of Iowa; that this defendant [appellee] need never worry about paying said bond; that he, the said Vernon W. Lynch [appellant], would see to it that said bond would be paid, and that this defendant [appellee] would be indemnified and saved harmless. That this defendant [appellee], in consideration of, and relying upon said inducements, statements, representations, promises, and agreements of the said defendant Vernon W. Lynch [appellant], and at the special instance and request of said Lynch [appellant], thereupon signed said bond as surety for said defendant Joe Cordaro.

"4. That this defendant [appellee], except for the inducements, promises, and representations of said defendant Vernon W. Lynch [appellant], would not have signed said bond as aforesaid. * * *"

Those allegations of the cross-petition were denied by the appellant.

I. During the trial, the appellee, in order to prove the aforesaid averments of the cross-petition, offered, and, over appellant's objections, introduced in evidence, the Exhibit 3 above set forth.

George Cordaro, named in Exhibit 3, was Joe Cordaro's father, and Jim Cordaro, hereinafter mentioned, is Joe's brother. It is to be recalled that Exhibit 3 declares that the receipt of money there acknowledged by appellant was from George Cordaro. Likewise, that exhibit specifically states the reason the appellant was intrusted with the money: to wit, "for the purpose of settlement with the surety companies." Under the record, it fairly appears that "surety companies," before the receipt was given, had signed certain bonds wherein Joe Cordaro was principal. Resulting from that transaction appears to have arisen an obligation on Joe Cordaro's part in favor of said surety companies. Then, for the purpose of discharging that obligation, the $ 3,900 amount named in the receipt, Exhibit 3, was given to the appellant. Nothing in the receipt or in the entire record, however, indicates that the said $ 3,900 came from Joe Cordaro. Nor is it shown by that instrument or the whole record that such money could be used by Lynch for any other purpose than to settle with the surety companies. Appellee Smith, in his cross-petition, it is to be recalled, as a foundation for a cause of action, stated that appellant had obtained sufficient money from the aforesaid defendant Joe Cordaro (not George or Jim Cordaro) for the express purpose of satisfying any contemplated liability on the appeal bond. Although the exhibit indicates that the money named therein came from George Cordaro, yet it appears in that part of the record relating to appellant's evidence that said funds may have belonged to Jim Cordaro, Joe's brother. Such evidence was produced subsequent to the introduction of the exhibit, and after appellee had rested his case. Perhaps the money did not belong to George Cordaro, but this does not mean that it was the property of the defendant Joe Cordaro. The inference to be drawn in this regard is that the money was the property of Jim Cordaro. Moreover, that portion of the exhibit which limited the use of the money to the settlement of the surety companies' cases is still unimpeached. Nothing in the record suggests that the funds named in the exhibit could be used for any other purpose. Appellee Smith had the burden of showing the materiality of the exhibit, and failed to do so.

Consequently Exhibit 3 fails to support any allegation in the cross-petition; for the receipt, considered with the whole record, shows that the money was obtained from George or Jim Cordaro, rather than Joe, and that it was to be used for the purpose of settling with certain surety companies, and not to secure the appellee from loss on the appeal bond in question. So there are at least two reasons why the exhibit does not support the allegations of appellee's cross-petition. They are: First, that the money named did not come from Joe Cordaro; and second, that it should be used for a specific, definite purpose, which was to settle with the surety companies. That exhibit, therefore, furnished no support whatever for appellee's cause of action, and hence was not admissible, because immaterial.

II. But it is said by the appellee that the appellant did not make proper objections to the introduction of the exhibit. Appellant did object when the offer was made, and at the close of all the evidence, he moved the court to withdraw the exhibit from the jury's consideration. Both the objection and the motion were overruled. Two grounds are named in the objection to the exhibit. Generally stated, they are that the exhibit shows on its face that it is incompetent and immaterial, because not tending to prove any issue in the case. Irrelevancy was not specifically named in the objection, and the appellee contends that immateriality was...