State v. Cordaro
| Decision Date | 08 March 1932 |
| Docket Number | No. 41044.,41044. |
| Parties | STATE v. CORDARO. SMITH v. LYNCH. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Loy Ladd, Judge.
Action on a cross-petition of a surety on an appeal bond to recover under an alleged oral agreement for reimbursement. The cause was submitted to a jury and a verdict returned for the cross-petitioner, and the defendant in the cross-petition appeals.
Reversed.
Ralph N. Lynch, of Des Moines, for appellant.
Bradshaw, Schenk & Fowler, of Des Moines, for appellee.
This is the second appeal of this case. The opinion in the former appeal is reported in 211 Iowa, 224, 233 N. W. 51, and the facts as they appeared at said time are set forth in said opinion.
Briefly stated, Cordaro was the defendant in a criminal case. He was convicted and appealed to this court. Appellee Smith was surety on the appeal bond. The state brought suit on said bond. Smith impleaded appellant Lynch by cross-petition, and alleged:
“* * * 3. That to induce this defendant to sign said bond, said defendant Vernon W. Lynch orally stated, represented, and promised to this defendant that he, the said Lynch, had collected from said defendant Joe Cordaro 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 need never worry about paying said bond; that he, the said Vernon W. Lynch, would see to it that said bond would be paid, and that this defendant would be indemnified and saved harmless. That this defendant, in consideration of, and relying upon said inducements, statements, representations, promises, and agreements of the said defendant Vernon W. Lynch, and at the special instance and request of said Lynch, thereupon signed said bond as surety for said defendant Joe Cordaro.
4. That this defendant, except for the inducements, promises, and representations of said defendant Vernon W. Lynch, would not have signed said bond as aforesaid. * * *”
Upon remand to the district court, and on the eve of the trial, the appellee amended his petition as follows:
“Comes now Wilbert J. Smith, defendant and cross-petitioner in the above entitled cause and amends his cross-petition by striking from line 4, paragraph 3, thereof, the words ‘said defendant Joe Cordaro,’ and substituting therefor, the words ‘the Cordaro family’; and by striking from the first sentence the last clause thereof, reading, ‘and that this defendant would be indemnified and saved harmless,’ and substituting therefor the words ‘and that he would pay it’; and by transposing said allegation as to indemnification; so that said paragraph 3 as amended will read as follows:
3. That to induce this defendant to sign said bond said Defendant Vernon W. Lynch orally stated, represented and promised to this defendant that he, the said Lynch, had collected from the Cordaro family ample funds and security to pay said fine 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 need never worry about paying said bond; that he, said Vernon W. Lynch would see to it that said bond would be paid, and that he would pay it. That in consideration of, and relying upon said inducements, statements, representations, promises and agreements of said Defendant Vernon W. Lynch, and believing that he, the defendant, would be indemnified against liability, this defendant, at the special instance and request of said Lynch, thereupon signed said bond as surety for said Defendant Joe Cordaro.”
Appellant moved to strike this amendment upon the following grounds:
“1. That said amendment to cross-petition changes said cross-petition from an action on an oral promise of an agent to answer for the debt, default or miscarriage of his principal out of funds of the principal, to an action wherein cross-defendant is alleged to be and made principal, and is alleged to be making an oral original promise to answer on his own account for the debt, default or miscarriage of a third party. And the cross-defendant respectfully shows the Court that before either of the first two trials of this case in the District Court and before the trial of this case in the Supreme Court cross-defendant filed a motion for more specific statement, which was resisted by cross-petitioner and eventually overruled, and cross-defendant by reference makes his original motion for more specific statement a part of this motion to strike. Cross-defendant shows the Court that an attempt was made to make the petition more specific before any trial of this case and that said amendment so substantially changes the cause of action as to make it in fact not the same cause of action which has been tried twice in the District Court and in the Supreme Court.
That cross-petitioner had a full knowledge of the facts during the first and second trials of this case in the District Court, and he assumed a particular position and adopted a certain cause of action, and he is now estopped to assume the inconsistent position of entirely changing his cause of action and in substance trying a new case against cross-defendant to cross-defendant's prejudice.
2. In the alternative, and if Ground 1 of the motion to strike Cross-petitioner's Amendment is overruled, then and in that event the case becomes one of an original independent promise and not that of an agent, and cross-defendant moves the Court to strike from paragraph 3 of the cross-petition as amended all reference to the collection of funds or securities from Joe Cordaro or the Cordaro family, for the reason that the same is an attempted pleading of evidence and immaterial to the cross-petitioner's action upon an original promise, and immaterial and incompetent to the issues remaining in the cross-petition, and partakes of irrelevant matter against the doctrine of res inter alios acta.”
The court overruled said motion to strike said amendment.
Code, § 11182 is as follows: “The court may, on motion of either party at any time, in furtherance of justice and on such terms as may be proper, permit such party to amend any pleadings or proceedings by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense by conforming the pleading or proceedings to the facts proved.”
[1] It is a well-established rule that trial courts are liberal in the allowance of amendments to pleadings, and that we hesitate to interfere with the action of the trial court in allowing or denying amendments. But, notwithstanding these recognized rules, it is a fact that we, not only have the power to review the action of the trial court in ruling on amendments, but it is our duty so to do when substantial legal rights are involved.
The appellee's cause of action as originally pleaded in his cross-petition was discussed in our opinion on the former appeal. In said cross-petition it clearly appeared that appellee's cause of action was predicated on the claim that he was induced to sign the Cordaro appeal bond by the oral representations of appellant Lynch that he had collected from said defendant Joe Cordaro ample funds and security to pay the fine imposed upon Cordaro, and that he (Lynch) would see to it that said bond would be paid, and that Smith would be indemnified and saved harmless.
After remand the amendment set out supra was filed. Did it change the issues?
[2] As set forth in our former opinion, the allegation that appellant had collected ample funds and security from Joe Cordaro (the defendant in the criminal action) was a material allegation of appellee's cross-petition. It became especially material, in view of the evidence upon that trial with regard to the ownership of and the purpose for which certain funds were claimed to have been placed in appellant's hands. We reversed because of the...
To continue reading
Request your trial