Wentland v. Stewart

Decision Date23 April 1945
Docket Number46713.
Citation18 N.W.2d 305,236 Iowa 258
PartiesWENTLAND v. STEWART.
CourtIowa Supreme Court

W. G. Henke, for Charles City, for G. A. Wentland appellee and cross-appellant.

R. W. Zastrow, of Charles City, and F. A. Ontjes of Mason City, for M. Edith Stewart appellant, and R. Ray Stewart, appellee.

MILLER Justice.

Plaintiff's original notice herein was served on Nov. 27, 1943. His petition, filed Dec. 4, 1943, demanded judgment on three notes, one for $3000, and two for $500 each, all dated March 1, 1928, and due Dec. 1, 1933, together with interest attorney fees and costs, and prayed for foreclosure of a mortgage on a 38-acre farm to enforce the same. The answer of defendant M. Edith Stewart denied the execution of the notes and mortgage, asserted that plaintiff elected to declare all three notes due Dec. 5, 1932, that the second note for $500 had been materially altered, and that all three notes were barred by the statute of limitations prior to the commencement of the action. The answer of defendant R. Ray Stewart was to the same effect. Plaintiff's reply asserted a general denial of the allegations of the answers as well as specific denials thereof, that there had been an extension of time for the payment of the second note for $500, originally due Dec. 1, 1932, the extension being for one year and was endorsed on the face of the note, and further that the action was not barred by the statute of limitations because, in December, 1941, there was an admission in writing by the defendant M. Edith Stewart that the mortgage indebtedness was unpaid and ten years have not elapsed since the making of said admission in writing; also, defendants had waived any alleged declaration of the indebtedness being due prior to the date fixed in the instruments and they are estopped from asserting the bar of the statute of limitations herein.

Trial was had and on Dec. 16, 1944, the court entered a decree wherein it was determined: that, on Dec. 5, 1932, the plaintiff declared the entire indebtedness secured by the mortgage due; thereafter, on Dec. 26, 1941, defendant M. Edith Stewart delivered to plaintiff a check for $150 to apply on interest on the mortgage indebtedness; a notation on the check referred to the mortgage indebtedness here sued upon; there was no material alteration of the second $500 note but the notation of extension thereof on the face of the note did not prevent the running of the statute of limitations; the statute of limitations had run as to R. Ray Stewart at the time of the commencement of this action but the check for interest and the notations thereon, taken with defendant's testimony, revived the debt as against M. Edith Stewart pursuant to Section 11018, Code 1939, so that plaintiff was entitled to personal judgment against her alone. Judgment was entered, accordingly, against M. Edith Stewart for $7988.32 with interest, attorney fees and costs, the mortgage was ordered foreclosed to enforce the same and special execution therefor was authorized.

On Jan. 9, 1945, defendant M. Edith Stewart filed notice of appeal to this court from the judgment and decree herein and from all rulings adverse to her. On the same day the plaintiff filed notice of his cross appeal from all findings of fact, conclusions of law and rulings and parts of said decree adverse to him and particularly from the rulings that, on Dec. 5, 1932, plaintiff declared the entire indebtedness secured by the mortgage herein due and that the action is barred by the statute of limitations as to defendant R. Ray Stewart.

In the meantime on Dec. 29, 1944, special execution had been issued for the sale of the mortgaged premises, levy thereof was made the next day, publication of notice of sale was promptly arranged and, on Jan. 9, 1945, notice of the sale was served upon both defendants. The sale was had at 2 p.m. Jan. 30, 1945, resulting in the sale of the premises to plaintiff for $7000, leaving a deficiency of $1237.45.

On Feb. 24 1945, defendants, M. Edith Stewart and R. Ray Stewart, served and filed a motion to dismiss the plaintiff's cross-appeal and supported the same with a certification of the record hereinbefore reviewed. The grounds of the motion to dismiss...

To continue reading

Request your trial
14 cases
  • Pohler v. T. W. Snow Const. Co.
    • United States
    • Iowa Supreme Court
    • 2 Agosto 1948
    ... ... the court's decision which was placed on another ground ... Humphrey v. City of Des Moines, 236 Iowa 800, 803, 20 N.W.2d ... 25, 26; Wentland v. Stewart, 236 Iowa 258, 261, 18 N.W.2d ... 305, 306, and citations ...         As pointed ... out in Otto v. Independent School ... ...
  • Ashby v. Haugh
    • United States
    • Iowa Supreme Court
    • 11 Julio 1967
    ...ignored this contention, plaintiff is entitled, without appealing, to urge it here in support of the decision. Wentland v. Stewart, 236 Iowa 258, 261, 18 N.W.2d 305, 306, and citations; Jacobson v. Aldrich, 246 Iowa 1160, 1163, 68 N.W.2d 733, VI. Lack of effective representation by counsel ......
  • Lautenbach v. Meredith
    • United States
    • Iowa Supreme Court
    • 8 Febrero 1949
    ... ... attempt to sustain the judgment. Kelley v. Creston Buick ... Sales Co., Iowa, 34 N.W.2d 598, 600, and citation; Wentland ... v. Stewart, 236 Iowa 258, 261, 18 N.W.2d 305, 306, and ... citations ... Plaintiff's concession the judgment should be reduced ... $70.12 is ... ...
  • Jacobson v. Aldrich
    • United States
    • Iowa Supreme Court
    • 8 Marzo 1955
    ...well taken, the court's ruling must be affirmed, even though it may have been mistaken in granting other grounds. Wentland v. Stewart, 236 Iowa 258, 261, 18 N.W.2d 305, 306. Since we agree that the motion was well taken upon the question of failure of the plaintiff to furnish substantial ev......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT