Wernet v. Jurgensen

• Decision Date: 13 June 1950
• Docket Number: No. 47658,47658
• Citation: 43 N.W.2d 194,241 Iowa 833
• Parties: WERNET v. JURGENSEN et al.
• Court: Iowa Supreme Court

Page 194

43 N.W.2d 194

241 Iowa 833

WERNET v. JURGENSEN et al.

No. 47658.

Supreme Court of Iowa.

June 13, 1950.

Lee R. Harding, of Clinton, for appellant.

P. B. Holleran, Alan H. Mayer and E. C. Halbach, all of Clinton, for appellees.

OLIVER, Justice.

The real estate here involved is a lot and dwelling house in Clinton, Iowa. The amended and substituted petition states that, under a conveyance recorded in 1942, the title to this property was in Hans Jurgensen and defendant Goldie Jurgensen, his wife, as joint tenants with right of survivorship and not as tenants in common; that Hans and Goldie were estranged, although not divorced; that plaintiff was employed by Hans as his housekeeper and served as such from 1943 until Hans died in January, 1949; that Hans had agreed plaintiff should continue to occupy the premises after his death and 'to claim' the unpaid compensation due for her services 'out of' such real estate; that in September, 1949, defendants assembled at this 'dwelling house and did by force, fraud, stealth, intimidation and threats in order to coerce and by reason of duress compel this plaintiff to momentarily leave said above described dwelling to summon assistance with the express intent to return and continue the occupancy thereof. That during the short interval of her absence the said defendants removed her personal effects from the' house, barricaded the doors and refused plaintiff the right to reenter; that plaintiff was thinly clad and was compelled to seek shelter with neighbors; that defendant Goldie Jurgensen had previously stated to plaintiff 'that she should retain possession of said above described property until such a time that an amicable settlement could be reached.' Plaintiff alleged actual damage in the sum of $3000 and prayed judgment for this amount and for $2000 exemplary damages.

Defendants moved to dismiss the amended and substituted petition on grounds designated A, B, C, D, E and F. October 27, 1949, the court entered an order sustaining defendants' motion generally. October 31 plaintiff filed her written election not to plead over and to stand on the record. On the same day she filed notice of appeal.

I. Defendants contend the order sustaining the motion to dismiss the petition was not appealable as a final judgment. R.C.P. 86 provides a party permitted by an order or ruling to plead further and failing to do so, elects to stand on the record theretofore made. 'On such election, the ruling shall be deemed a final adjudication in the trial court without further judgment or order; * * *.' This is the precise holding in Wright v. Copeland, Iowa, 41 N.W.2d 102, an appeal from an order sustaining defendants' motion to dismiss the petition. In the case at bar the election filed by plaintiff went even farther than R.C.P. 86 requires. We hold the order was appealable.

II. December 27, 1949, plaintiff filed what was denominated a 'Motion for Correction of Proposed Abstract', apparently under R.C.P. 341(a). This motion pointed out that the ruling sustaining the motion to dismiss her petition was general and asked that it be made specific as required by R.C.P. 118. January 10, 1950, the trial court made the following Amendment to Order, of October, 1949:

'Defendants' Motion to Dismiss Plaintiff's amended and substituted petition as set out in Division I is sustained for the reasons stated in said Motion and itemized as A, B, C, D, E and F.'

R.C.P. 341(a) deals with the correction of the record rather than the changing of the record. Kohl v. Arp, 236 Iowa 31, 36, 17 N.W.2d 824, 169 A.L.R. 1067. Although the pendency of appellate proceedings does not preclude the trial court from amending its records to correct errors and mistakes to make it 'speak the truth' an order appealed from cannot ordinarily be thus amended or modified as to matters of substance. 4 C.J.S., Appeal and Error, § 617, p. 1101; Ruth & Clark, Inc., v. Emery, 235 Iowa 131, 134, 15 N.W.2d 896; Concannon v. Blackman, 232 Iowa 722, 728, 6 N.W.2d 116.

Defendants contend the appeal should have been taken from the Amendment to Order, made in the January, 1950 term and that the appeal from the October, 1949 order was ineffective. They cite Wolf v Lutheran Mut. Life Ins. Co., 236 Iowa 334, 343, 18 N.W.2d 804. In the Wolf case the later order was made prior to appeal and it materially modified the earlier order. In the case at bar the later order was made after appeal. The trial court could not then amend the original order as to matters of substance. Nor does the later order actually change the legal effect of the earlier. We conclude the appeal was properly taken from the October order. See Leishman v. Associated Wholesale Elec. Co., 9 Cir., 128 F.2d 204.

III. Ground A of the motion to dismiss the amended and substituted petition merely asserts 'plaintiff has failed to state a cause entitling her to the relief demanded.' Standing alone, this is too indefinite to be considered because it does not specify wherein the petition is claimed to be insufficient, as required by R.C.P. 104(b) and (d). Wright v. Copeland, Iowa, 41 N.W.2d 102. However, other grounds of the motion state the pleaded promise or agreement of Hans that plaintiff was to occupy the real estate after his death was ineffective to give plaintiff any right of occupancy after his death. Ground D of the motion is based upon the allegations in plaintiff's pleadings that Hans and Goldie were joint tenants with right of survivorship. The rule is settled that when Hans died title to the property immediately vested absolutely in Goldie under the 1942 deed. Hruby v. Wayman, 230 Iowa 653, 298 N.W. 639; Switzer v. Pratt, 237 Iowa 788, 23 N.W.2d 837; 48 C.J.S., Joint Tenancy, § 1, p. 911. While the joint tenancy existed Hans could not give anyone a valid right of occupancy to commence with his death. Moreover, Goldie took title free from his debts. Woods v. Logue, 167 Iowa 436, 149 N.W. 613; Am.Cas.1917B, 116; 14 Am.Jur. 79, Joint Tenancy, § 6. Hence, the pleaded agreement gave plaintiff no right to occupy the property after the death of Hans.

Other grounds of the motion to dismiss assert plaintiff's pleadings show the claimed agreement was oral and in violation of the statute of frauds and also that the property was the homestead of Goldie and Hans, and under section 561.13, Code of Iowa 1950, I.C.A., could be incumbered only by a joint instrument executed by the husband and wife. These grounds of the motion need not be considered because of our holding that the pleaded agreement with Hans, the deceased joint tenant, did not give plaintiff the right to occupy the premises after his death.

Prior to the death of Hans, plaintiff's occupancy of the premises was incidental to her service and not as a tenant. Upon his death her employment terminated and with it her right to continue her occupation of the premises. 32 Am.Jur. 35 and 37, Landlord and Tenant, § 10 and § 13; 51 C.J.S., Landlord and Tenant, § 6(c), p. 514 and § 181, p. 785; Davis v. Long, 45 N.D. 581, 178 N.W. 936, 14 A.L.R. 796. An article by Floyd E. Page in 6 Iowa Law Review, 173, contains a good discussion of these propositions and cites authorities.

Defendants suggest that after the death of Hans, plaintiff was no more than a tenant at sufferance. No decision of this court, defining this term, has been called to our attention. There is some variance in the definitions of other courts, due largely to differences in statutes. Restatement of the Law, Property, § 22, defines an estate at sufferance as an interest in land which exists when one who had a possessory interest by virtue of an effective conveyance, wrongfully continues in possession after the termination of such interest, but without asserting a claim to a superior title. See also 51 C.J.S., Landlord and Tenant, § 181, p. 785; 32 Am.Jur. 37, Landlord and Tenant, § 13. However, the determination of the pleaded status of plaintiff upon the death of Hans in January, 1949, is not here essential. The important question at this point is her pleaded status September 13, 1949.

Section 562.4 Code of Iowa 1950, I.C.A., provides: 'Any person in the possession of real estate, with the assent of the owner, is presumed to be a tenant at will until the contrary is shown, and thirty days notice in writing must be given by either party before he can terminate such a tenancy; * * *.'

Plaintiff pleaded defendant Goldie Jurgensen (the owner) had told plaintiff she should retain possession of the property pending a settlement. Furthermore, her pleadings indicate she was permitted to remain in possession almost eight months. See 32 Am.Jur. 38, Landlord and Tenant, § 13. Waterman v. Wood, 185 Iowa 897, 906, 171 N.W. 171, 174, states a purchaser under a contract who wrongfully assumes possession is not 'immune against the remedies which would be appropriate against any other intruder. * * * one who takes wrongful possession may become a tenant at will by reason of being permitted to remain therein 30 days or more, making it necessary for the owner to terminate such tenancy by the statutory notice. But, his tenancy being...