Vosges v. Clark

• Decision Date: 05 August 1949
• Docket Number: 47428.
• Parties: VOSGES v. CLARK et al.
• Court: Iowa Supreme Court

38 N.W.2d 611

240 Iowa 1108

VOSGES v. CLARK et al.

No. 47428.

Supreme Court of Iowa

August 5, 1949

Healey & Reynolds, of Creston, for appellant.

E L. Carroll, of Creston, for appellees.

WENNERSTRUM Justice.

Plaintiff brought an action in equity, her petition being divided into four divisions or counts. The nature of the allegations in these several counts will be commented on later. Thereafter defendants filed an answer to the several divisions of plaintiff's petition. After the concluding prayer of defendants' answer there is a final paragraph wherein they 'ask that this action be transferred to law from equity, * * *'. A counterclaim to plaintiff's petition was also filed. To the counterclaim plaintiff filed an answer. Subsequent to the filing of the pleadings heretofore referred to, the defendants filed a motion to transfer each and every division of plaintiff's petition from equity to law. The court sustained this motion. Other pleadings pertaining to the issues then pending were later filed by the respective parties. Upon trial the jury returned several verdicts on the several divisions of plaintiff's petition and the counterclaims of defendants but upon the entire case judgment was entered against the plaintiff. She has appealed.

In division one of appellant's petition an oral lease for the period of one year covering certain farm property is pleaded. Under the claimed terms of this lease the appellant was to receive a percentage of the grain raised and was to be paid certain cash rent for the pasture land. Appellant therein asked for an accounting of the grain raised and a settlement thereon for a judgment on the cash pasture rent due, and further prayed that a writ issue for the enforcement of a landlord's lien held by the appellant against the property of the appellees which was subject to this lien. Appellant, in division two, seeks recovery for the purchase price of 500 bushels of corn for which it is claimed the appellees agreed to pay the market price. In division three it is alleged that appellant and appellees entered into an oral partnership agreement for the purchase of brood sows that the appellant furnished the money for the entire purchase price and that the appellees had agreed to pay one-half of the cost of the purchase price of said hogs and were to account to the appellant for one-half of the proceeds from the sale of the offspring. It is claimed that the appellees have failed to pay one-half of the initial purchase price of the hogs and to account for the proceeds obtained from the sale of their pigs. In division four appellant seeks to collect on a promissory note given by appellees.

Following the ruling of the court on appellees' motion to transfer the appellant's cause of action from equity to law, which was sustained, the appellant replied to appellees' answer. She then filed a motion to transfer the claimed equitable issues from the law to the equity docket, asserting that division one involved an accounting and that division three pertained to the termination of a partnership agreement. This motion was overruled by the trial court. A subsequent amendment to answer was filed by the appellees and the appellant thereafter filed an amendment to her reply.

It is the contention of the appellant, as grounds for a reversal, that the court erred (1) in transferring the entire case from equity to law; (2) in overruling the appellant's motion to withdraw the issues raised by division one of appellant's petition from the consideration of the jury; (3) in overruling appellant's motion to withdraw divisions three and four of her petition from the consideration of the jury, and (4) in refusing to sustain appellant's motion for a new trial.

I. The following statute should be considered in connection with appellant's contention that the court erred in transferring the entire case from equity to law.

Section 611.9, 1946 Code, I.C.A. 'The defendant may have the correction made by motion at or before the filing of his answer, where it appears by the provisions of this code wrong proceedings have been adopted.' (Italics supplied.)

It is the general rule that a failure to file a motion to transfer from equity to law prior to filing an answer constitutes a waiver of any right to have such a motion considered. Moore v. District Township of Union, 28 Iowa 425, 427; Crissman v. McDuff, 114 Iowa 83, 84, 86 N.W. 50; Fisher v. Trumbauer & Smith, 160 Iowa 255, 260, 138 N.W. 528, 141 N.W. 419; Tolerton & Warfield Co. v. Carlson, 200 Iowa 366, 369, 202 N.W. 768; Penn Mutual Life Insurance Company v. Doyen, 211 Iowa 426, 427, 233 N.W. 790; Kimmel Investment Corporation v. Renwick, 220 Iowa 362, 363, 261 N.W. 775; McManis v. Keokuk Savings Bank & Trust Company, Iowa, 33 N.W.2d 410, 412.

This rule, however, cannot be applied here inasmuch as the appellees in their answer did 'ask that this action be transferred to law from equity, and that the same be submitted to a jury for trial and hearing.' It is true the trial court did not rule upon this request but it properly could have done so. This request, as incorporated in appellees' answer, was, in fact, a motion and having been made 'at * * * (the time of) the filing of * * * answer' it cannot be said that it was not timely made. Even though appellees filed a subsequent motion to transfer the appellant's cause of action from equity to law, which was sustained, it was but a renewal of the motion or request incorporated in appellees' answer. Under the record the original motion and request to transfer was timely made.

II. On consideration of the appellant's pleadings we have concluded that the trial court properly sustained appellees' motion to transfer the entire case from equity to law. In division one of appellant's petition she pleads an oral lease, asks for an accounting by reason of a percentage agreement concerning the grain raised, a judgment for cash rent claimed...