Wolmerstadt v. Jacobs

• Citation: 61 Iowa 372,16 N.W. 217
• Parties: WOLMERSTADT v. JACOBS.
• Decision Date: 15 June 1883
• Court: United States State Supreme Court of Iowa

61 Iowa 372

16 N.W. 217

WOLMERSTADT

v.JACOBS.

Supreme Court of Iowa.

Filed June 15, 1883.

Appeal from Jackson district court.

The plaintiff's action was at law. The defendant pleaded a general denial and a counter-claim: First, for money loaned; and, second, a promissory note, secured by mortgage; and the foreclosure of the latter was asked. In a reply the defendant admitted there was due on the mortgage $105.35, and he asked that the same might be offset against the amount he might recover in his action at law. The plaintiff demanded a jury to try the legal issues, to which the defendant objected on the ground that an equitable counter-claim had been pleaded and therefore the whole case was triable in equity. The objection was overruled, and the court held the legal issues should be first tried. While a jury was being impaneled the plaintiff pleaded a tender, as follows: “Now * * * comes the plaintiff and tendered the sum of $105.35, the actual amount which he admits to be due on the note and mortgage of the said defendant, filed herein, and set up as a cross-demand to this action, and asked that said note be canceled, and the mortgage satisfied of record by the plaintiff.” The amount tendered was paid to the clerk. After the jury was sworn, and before any evidence had been offered, the defendant filed an acceptance of the tender, as follows: “Now comes the defendant and admits that the sum tendered by plaintiff to defendant and paid into court is the amount due defendant from plaintiff.” The defendant also filed a motion for a judgment for the amount tendered, and for costs, on the grounds there was nothing left to try, as, by tendering an amount due, this was an end of the case, and defendant was entitled to judgment as asked. The motion was sustained, the jury discharged, and judgment rendered for the defendant, to which plaintiff excepted. Five days afterwards, and during the same term, the court “on its own motion, and without any motion having been made or filed for a new trial by the plaintiff, expunged the order, ruling, and judgment” therefor rendered, as above stated, and made the following decision: “Motion to withdraw case from the jury, and for judgment against the plaintiff for the amount tendered, overruled.” To which the defendant excepted, and appeals.J. Hilsinger and L. A. Ellis, for appellant.

T. W. Darling and D. A. Wynkoop, for appellee.

SEEVERS, J.

1. It is said the court erred in setting aside the first order and judgment, and in overruling, at a subsequent day, the defendant's motion for judgment on the plea of tender. The statute provides that the court record “is under the control of the court, and may be amended or any order therein expunged at any time during the term at which it is made, or before it is signed by the judge.” Code, § 178. Under this section it has been held the court, on its own motion, may correct its record. Boals v. Shules, 29 Iowa, 507. The court has the power to change the ruling made in sustaining a demurrer, upon discovering its mistake or error, and may expunge the first ruling from the record and...