152 Iowa 608 | Iowa | 1911
Lead Opinion
The case as presented by the petition is that on December 18, and on December 19, 1899, the plaintiff made two payments of $500 each to S. L. Collins to be applied upon a note then held by Collins against the plaintiff. The alleged payments were never credited upon the note. The note having been otherwise paid and taken up by the plaintiff, this action was brought to recover the above-named sums. At the first trial of the case had in 1905 the defendants prevailed. Upon plaintiff’s appeal to this court, the ease was- reversed and remanded for another trial. See 133 Iowa, 152. Collins is dead, and the defendants are his administrators.
We will consider, first, whether the evidence was sufficient to support such finding. Eliminating from our thought all statements of the pleadings and of the argument and directing our attention to the evidence alone, we find it exceedingly meager. It consists of the testimony of plaintiff alone. The substance of such admissible testimony is as follows: “I carried $1,000 in currency into the bank on December 18th. The only persons present were S. L. Collins, Lafe Collins, and another whom I did not know. I had only $500 when I left the bank. I did not pay any money to Lafe Collins or to the other man. I saw my note while in the bank. I saw the indorsement purporting to be a payment of $500 on December 18th. I drew my check for $500 payable to S. L. Collins at the same time, and left it there.” This check is “Exhibit C.”
This is the whole testimony, in substance, in support of 'such alleged payment of $500 in currency. It can be treated only as circumstantial evidence, and the question is whether it is sufficient to exclude every other reasonable hypothesis than that the plaintiff in addition to his check paid $500 in currency to be applied upon his note. We have held that circumstances of the nature above set forth may be introduced in evidence on the theory that they are not personal transactions.. In connection with other competent testimony, they may become very important, and proper inference may be drawn from them in the light of all the competent evidence in the case. In this case
Viewing the whole testimony actually given by plaintiff as circumstantial only, we are compelled to hold that it is not sufficient to sustain the verdict. The admitted balance' due on plaintiff’s note on December 18th was only a little over $600. The adverse effect of this circumstance is recognized by plaintiff. TIis explanation is that he had forgotten the $1,400 payment. Let this be accepted at this point. He testified that he saw his note, and saw the indorsement of payment of $500 thereon. The $1,400 indorsement was under his eye at the same time. The incongruity then presented by his contention as a whole is that he not only paid the $1,000 as he claims on a note on which only $600 was due, but that he did so knowing that only $500 was indorsed as a payment on that day. This incongruity is emphasized by the fact that on April 11th following ‘he paid the balance due of $121 and took up his note carrying the very indorsement already indicated and made no claim of lack of credit or overpayment for a period of two, years or more. We realize at this point that we are somewhat within the domain of the jury, but it is our duty also- to consider the whole testimony before reaching a conclusion that the verdict is arbitrary, and without legal support in the evidence. This is our conclusion as to the finding of the jury that such additional payment of $500 was made on December 18th.
The argument of appellant at this point is that there was no case pending against S. L. Collins at the time of his death, and that the trial court had no jurisdiction, therefore, to substitute his administrators as defendants. It is also argued that the only course open to the plaintiff was to file his claim in probate, and to prosecute his proceedings there. We will not enter into the question as to what would have been the proper procedure for the plaintiff if no jurisdiction was acquired over S. L. Collins during his lifetime. Even if it be conceded that the proper procedure required the plaintiff to file his claim in probate, the necessity for such a course does not arise out of lack of jurisdiction in the district court. The question at this point is one merely of statutory procedure, and is quite distinct from the question of the jurisdiction of the district court. If the defendants had challenged the right of the plaintiff to proceed in the district court in the manner in which he did, they might have been entitled to a transfer of the proceedings to the probate side. We do not now pass upon that question. Inasmuch, however, as the defendants appeared and raised no question as to the procedure or the form thereof, the district court properly tried out the case. It had jurisdiction both of the subject matter and of the persons of all parties. Code, section 3445. Bank v. Green, 59 Iowa, 171; Goodnow v. Wells, 67 Iowa, 654; Clough v. Ide, 107 Iowa, 669; McCrary v. Deming, 38 Iowa, 527. If there was jurisdiction, the defendants are in no position to complain of merely erroneous procedure. They knew all the facts pertaining to the defective service from the beginning. They had such knowledge when they entered their voluntary appearance, and they must be held to have waived
Unless the plaintiff elect as above indicated, the judgment below is reversed.
Concurrence Opinion
I concur in the dissent of Deemer, J.
Dissenting Opinion
(dissenting). — On the prior appeal we held that the trial court was in error in’ directing a verdict for defendant, and that the testimony set out by the majority as to the first $500 was material and competent. We now say the ease should not have gone to the jury as to this payment, but admit the testimony was material and competent as bearing upon the first $500 payment. I feel that, while the testimony was perhaps weak, it was enough to take the case to a jury.
It is practically admitted that if plaintiff paid or delivered to Collins the $500 in cash on -December 18th, he is entitled to recover. No one claims that the money was paid on other obligation or was a gift to Collins. I think the majority are usurping the functions of a jury in weighing testimony.