Stewart v. Stewart
| Decision Date | 07 March 1922 |
| Docket Number | No. 34164.,34164. |
| Citation | 193 Iowa 307,186 N.W. 833 |
| Parties | STEWART v. STEWART. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Guthrie County; H. S. Dugan, Judge.
Action at law to recover a sum of money claimed to be due plaintiff from the defendant on account of certain transactions growing out of the lease of a farm, and to recover damages for the wrongful and malicious filing of an information by defendant, charging plaintiff with the crime of assault with intent to commit murder. There was a verdict and judgment in favor of plaintiff for $1,003.50, from which judgment plaintiff appeals. Reversed.Allen T. Percy, of Dexter, and W. D. Milligan, of Guthrie Center, for appellant.
Plaintiff's original petition alleged that the defendant was indebted to him in the sum of $300 for the breach of the terms of an oral lease under which plaintiff claimed to have farmed 80 acres of land in Madison county, Iowa, during the season of 1919. The specific claim made was that defendant sold about 1,300 bushels of oats, grown on the demised premises, one-third of which belonged to plaintiff, and converted the proceeds to his own use, and asked judgment therefor.
On January 24, 1920, plaintiff filed an amendment to his original petition, setting up a cause of action for damages on account of the alleged wrongful and malicious filing of an information before a justice of the peace, charging the defendant with the crime of assault with intent to commit murder. The cause of action alleged in the amendment accrued, if at all, subsequent to the filing of the original petition. The defendant filed a motion to strike the amendment upon the ground that it alleged a new, separate, and independent cause of action, and was not in any respect germane to the cause of action contained in the original petition. This motion was overruled, and the cause tried to a jury, with the result above stated. Many rulings of the court upon objections to testimony offered are assigned as error by appellant, but, in view of the conclusion reached that the ruling on the motion to strike was erroneous, and in view of the further fact that these alleged errors are not likely to occur upon a retrial of the cause in the court below, we do not deem it necessary to consider or pass upon these assignments. Exception was taken by counsel for appellant to the court's ruling upon the motion to strike plaintiff's amendment to the original petition, and same was also one of the grounds stated in the motion for a new trial. We have not been favored with an argument by appellee, nor a statement of the grounds upon which he relies to sustain the judgment from which this appeal is taken.
Section 3600 of the Code of 1897, authorizing certain amendments to pleadings and specifying the kind and nature of the amendments allowed, 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.”
Section 3641 of the Code authorizes the filing of a supplemental petition, answer or reply, and is as follows:
“Either party may be allowed to make a supplemental petition, answer or reply, alleging facts material to the case which have happened or have come to his knowledge since the filing of the former pleading; nor shall such new pleading be considered a waiver of former pleadings.”
Section 3600 permits amendments to pleadings to be filed “in furtherance of justice and on such terms as may be proper by” (a) “adding or striking out the name of a party;” (b) “correcting a mistake in the name of a party;” (c) “a mistake in any...
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