Swartzendruber v. Polke
| Decision Date | 14 February 1928 |
| Docket Number | No. 38924.,38924. |
| Citation | 218 N.W. 62,205 Iowa 382 |
| Parties | SWARTZENDRUBER v. POLKE ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Iowa County; R. G. Popham, Judge.
Action in equity to set aside a judgment. The defendant appellees challenged the petition filed by the plaintiff appellant by a motion to dismiss (equitable demurrer). The motion was sustained, and judgment was entered dismissing the petition and for costs against plaintiff. The plaintiff did not elect to stand on the pleadings and appeal from the judgment entered, but thereafter, without requesting time to plead over, and without an order of the court fixing time, filed an amended and substituted petition to which the defendants filed a special appearance and plea to the jurisdiction. This plea was sustained, and the court entered an order striking the amended and substituted petition from the files. The plaintiff appeals. Affirmed.S. K. Stevenson, of Iowa City, and E. E. Collins, of Cedar Rapids, for appellant.
Hatter & Harned, of Marengo, for appellees W. J. Wade and Bertha L. Wade.
DE GRAFF, J.
This is an independent action in equity to set aside a judgment of the district court in a real estate foreclosure proceeding wherein one C. J. Polke was plaintiff, and W. J. Wade, Bertha L. Wade, N. H. Donohoe, Henry Yoder, and the appellant herein, Eli J. Swartzendruber, were defendants.
On the 5th day of November, 1925, there was entered in said cause a judgment and decree adjudging that the plaintiff Polke have and recover from the defendants the sum of $3,309.03, with interest, attorney's fees, and cost. The land was sold under special execution, and after applying the proceeds to said indebtedness there was a deficiency judgment against Eli J. Swartzendruber in favor of the judgment creditor, C. J. Polke, in the sum of $971.88.
The instant plaintiff predicates his cause of action in equity on fraud in the securing of said judgment. He never reached a point beyond the filing of his numerous petitions by reason of the rulings of the trial court on motions of defendant appellees, presently noted. It is at once apparent that the cause has not been tried on the fact side, and it is to the pleadings and motions that we must resort to discover the historical sequence of the facts.
On November 12, 1926, plaintiff, Swartzendruber, filed his petition in equity to set aside and vacate the judgment entered on November 5, 1925, in the foreclosure action. Notice was served upon the defendants Polke, W. J. Wade, and Bertha L. Wade. Before answer or other pleading was filed by the defendants, plaintiff, on January 28, 1927, filed an amended and substituted petition which alleges inter alia that plaintiff entered into an oral contract with the defendant W. J. Wade, under the terms of which Wade was to sell to the plaintiff the tract of land in question, (described in the petition), and whereby plaintiff was to deliver to Wade a certain automobile as the purchase price of said tract, and that Wade was to make a deed to said land conveying same to whomsoever the plaintiff, Swartzendruber, should direct; that said automobile was turned over to said Wade; that on July 6, 1925, one C. J. Polke commenced his action in the District Court of Iowa in and for Iowa county to foreclose a certain mortgage on said land, in the sum of $3,000, dated March 1, 1920; that said mortgage was signed by W. J. Wade and Bertha L. Wade, his wife; that said petition to foreclose alleged that plaintiff, Swartzendruber, had received from Wade and wife a deed to said land, and by the terms thereof the said Swartzendruber assumed and agreed to pay the said mortgage indebtedness; that plaintiff at no time ever received a deed from Wade, and at no time ever agreed to assume and pay the said indebtedness; that under date September 15, 1925, Eardley Bell, Jr., entered his appearance in said foreclosure action for the defendants Wade and Swartzendruber and was given 10 days to plead; that on August 1, 1925 the said attorney filed in the district court in said action an answer and cross-petition of the defendant W. J. Wade, and that in said cross-petition it is alleged that the defendant Swartzendruber has failed to pay said note and mortgage and that there is now due on said note the sum of $3,286.35, with interest, and that in the prayer of said cross-petition W. J. Wade demands judgment against the defendant Swartzendruber in said sum; that the said attorney did not file any pleading for this plaintiff, but on the contrary did file the said cross-petition, and that the interests of the said Wade were adverse and opposed to the interest of this plaintiff, and that the said attorney was working for and in the interest of said Wade contrary to equity and good conscience on the part of said attorney; that said attorney permitted judgment to be entered against this plaintiff to his great loss and injury; that following the decree of foreclosure against this plaintiff a writ of execution was secured and levy made on all of the personal property of said plaintiff; that the said Wade and the said Eardley Bell, Jr., conspired to defraud this plaintiff out of money to the extent of the said mortgage by alleging that the said plaintiff had assumed and agreed to pay said mortgage, and by pretending to enter an appearance and represent this plaintiff in said foreclosure action.
On January 21, 1927, defendant Polke entered her appearance pro se and filed her answer by general denial, and on February 3, 1927, appellant dismissed his petition as to the defendant Polke. The record shows that on October 12, 1926, the mortgagee, Polke, by written assignment sold and transferred all right, title, and interest in the foreclosure judgment to W. J. Wade, appellee herein.
On February 4, 1927, the appellees W. J. Wade and Bertha L. Wade filed their motion to dismiss the amended and substituted petition and gave notice of the statutory hearing thereon. The primary grounds recited in the motion are that (1) the petition shows on its face that plaintiff is not entitled to the relief sought or to any equitable relief whatever; (2) the filing of the petition is not timely; (3) the plaintiff has or had a plain, speedy, and adequate remedy at law; (4) the action is not properly entitled and should have been brought in the original case.
Upon the hearing of this motion to dismiss, to wit, February 18, 1927, the motion was sustained, the petition was dismissed, and judgment for costs was entered against the plaintiff, to all of which plaintiff duly excepted. The plaintiff did not elect of record or otherwise to stand on his pleadings, nor did he appeal from the ruling on the demurrer and the judgment entered. The plaintiff did thereafter, to wit, March 7, 1927, without requesting or securing an order of court fixing the time to amend his petition, file what is denominated “his amended and substituted petition herein,” to which on April 12, 1927, the defendants W. J. Wade and Bertha L. Wade filed a special appearance and plea to the jurisdiction based on the grounds (1) that the court had no jurisdiction to entertain or permit said amended and substituted petition for the reason that an order and judgment was entered by the court dismissing, at plaintiff's cost, plaintiff's cause of action stated in his original filed petition, and (2) that the pleading denominated “amended and substituted petition in equity” filed on March 7, 1927, does not purport to state or set out an original or new cause of action, and that said amended and substituted petition is identical with the cause of action attempted to be stated in the prior pleadings of the plaintiff. The trial court sustained the plea and ordered that the said amended and substituted petition “should be and it is stricken from the files.”
It may be observed from this brief statement of the facts that the merits of this appeal are, in essence, procedural in character. We first give attention to the ruling on defendant's motion to dismiss, and then inquire (1) whether the appellant had the right to amend his petition after the motion was sustained by the trial court; and (2) whether the second amended and substituted petition is identical in the statement of a cause of action as declared in plaintiff's first amended and substituted petition to which the motion to dismiss was directed.
[1] A motion to...
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