174 Iowa 349 | Iowa | 1916
I. We have found it most difficult to ascertain what is presented for our consideration. What is intended to be the error points and brief points provided for by the rules is a perfect maze of scattered and unrelated matter, covering pages of print. Under the so-called error point complaining of overruling motion to require election, there are pages of citations and scattered arguments that include the duty to strike out surplusage; what is triable and cognizable in equity; that, bond having been given to release lien, there was no right to maintain an action to establish statute lien; that the law issues in the three counts should have been tried at law, and not transferred to equity; that a motion to strike out irrelevant and immaterial matter is not waived by going to trial; that one is entitled to choice, but not to plurality of remedies; that equitable items should be set forth in a separate petition; that there was error in refusing to make the petition more specific; that a statute lien ceases after possession has ceased; that there is no common-law lien for a livery stable keeper, in the absence of special agreement therefor; that it was error not to require appellee, as bailee, to render an accounting for what was received
We have done the best possible in such condition of the printed record. We have practically waived the rules for the benefit of appellant, and subjected ourselves to labor that should not be required of us. If perchance, in these circumstances, something that should have our consideration does not have it, the explanation has been given.
II. Plaintiff sues on a promissory note executed by the defendant, claiming that it evidences a settlement and balance found due. Defendant responds that the note was a mere accommodation note, had served its agreed purpose, and was wrongfully being enforced, and asks its cancellation. Plaintiff also makes claim for keeping certain of defendant’s horses. To this, there is a defense in the nature of a counterclaim, alleging certain agreements under which the use of the horses should be set off against the value of the keep, and with such claims as that negligence and misconduct on part of plaintiff prevented the use of some of the horses during a racing season, to the great damage of the defendant; that he was greatly damaged by the fact that plaintiff asserted a lien for the keep and compelled delivery bond, being affected in both credit and pocket by what is termed procedure working ex
Defendant moved that plaintiff be required to elect which cause or causes of action referred to by him in the several counts of his petition he relies on, and that he “ eliminate all other matters and allegations in the respective counts in which the said causes are set forth”; that is, plaintiff should be required to separate Counts 1, 2 and 3 of his petition, and by that means set forth:
(1) “The action in equity-to enforce a lien” in a separate petition from the action on account, and the claim for services rendered;
(2) Be required to set forth in still another count his action on the note;
(3) Should state in the several counts whether he relies on a quantum meruit implied, or an express contract in his •said claim, founded upon an account, and for services rendered;
(4) Whether or not the horses referred to are now, and were at the time that the suit was begun, in his possession;
(5) To set forth an accounting in full for the services, use and profits accrued appropriated by him, or derived from the horses, team, and other property of the defendant, during the time that such property was in plaintiff’s possession or control;
(6) To set out in the several counts an itemized statement of the account for keep, feed, care and attention for which he claims.
He moved further that there be stricken from the prayer in. the counts the words “and prays that the same be declared -to be a lien upon the said horses of defendant”. This last, alone, was sustained.
As we gather it, defendant now complains that these various pleadings on both sides stated both law and equitable issues; that each should have been tried in its appropriate
2.
In the' cross-petition heretofore referred to, appellant “prays the court that this action be transferred to the equity docket, and that in equity an accounting be ordered by the plaintiff in the original action; . . . -that the said promissory note and delivery bond given by this cross-petitioner be each ordered surrendered up and canceled; that judgment in favor of this cross-petitioner be rendered against John Bullard, plaintiff . . . for the amount found due this cross-petitioner from the said John Bullard, and for costs incurred in this action in maintaining this cross-petition, and for such other and further relief as shall be deemed just and equitable in the premises”.
It will be remembered that this cross-petition put in issue all that was asserted by either plaintiff or defendant. Not alone this, but, after this cross-petition had been filed, the defendant filed the following motion:
‘ ‘ Comes now the defendant and cross-petitioner, W. J. R. Beck, and moves the court to transfer this case to the equity docket and calendar on the issues joined by the cross-petition of the said defendant, and his answer to plaintiff’s petition, which also claims a lien on plaintiff’s property of equitable cognizance. ’ ’
It will be remembered, too, that the prayer for equitable relief contained in plaintiff’s petition had, on the motion of the defendant, been stricken out. The order made on the motion to transfer is as follows:
“Cause transferred to equity docket; jury waived by plaintiff as to law issues; counsel for plaintiff waives time for taking of depositions; and cause assigned for December 15, 1913, at 2 P. M.”
Still later, when appellee moved to affirm because the burden of proof on the equitable issues was on defendant, and therefore he had failed to file his argument in rule time, appellant strenuously insisted in resistance that the record shows that the appeal is in equity; “that the case was tried in equity below”; that, when the court below transferred' the whole case to the equity calendar, “appellee was assigned the burden in the court below, and assumed it, and proceeded to try his ease”.
III. On the 17th day of November, 1913, the cause was, without objection, assigned for December 15th. On December 12th, defendant moved for a continuance on account of the absence of a witness. One claim for the motion is the erroneous one that he had objected to the assigning of the cause for trial for December 15th. Appellant urges that it was error to overrule the motion to continue. We think that it should have been sustained. But that is not material, since the court sustained it, and that ruling is not complained of.
We see no error as to any matter assigned, and the decree below will stand — Affirmed.