*1 $35,000 amount of the loan exceeds AFFIRMED IN PART AND RE- the notes are secured because interest VERSED IN PART. 537.1301(15)(a), in real estate. Code opinion rejected
1977. Earlier this argument, holding these notes were not open-end mortgage May
secured
24, 1976. Each must be sepa- treated as a
rate transaction. provi- These notes are to ICCC ENGLISH, Appellee,
sions, including requirement that notice given prior to cure be to suit. Because the statutory given, judg- notice was not MISSILDINE, The Honorable Dale S. against Ralph ment in the amounts Judge, Polk District Court
$7,548.29 $6,000 (note dated June capacity only, Appellant. his official 1976); $5,358.03 $5,000 (note for dated Au- No. 65087. gust 30, 1976); $11,378.06 (note $9,000 $3,773.97 (note June dated Supreme Court of Iowa. $3,000 27, 1977) dated June should have Oct. plaintiff’s been dismissed for failure to com- ply with the statute. Summary.
VII. judgment
We against Ralph affirm the
Manning Manning and Florence $14,974.59, plus
amount of interest 9, 1980,
May percent annum, per at 7 based $30,000
on a January note for dated
1969, and the mortgages foreclosure of the
securing obligation as set out in the (Division V.)
trial court decree. judgment
We also against affirm the
Ralph Manning Manning and Florence $86,726.03, plus amount of interest from 9, 1980,
May percent at the rate of per 8¾
annum, $69,000 based on a note for dated
May and the foreclosure of the
mortgage securing obligation as set (Division
out in the V.) trial court decree. judgment against affirm the Ralph in $14,345.58
the amount of separate July $24,110.
note (Division 1977 for
VI(a).) judgment against reverse the entered
Ralph separate on his other five notes. Di- VI(b) VI(c).
vision petition based on the notes described VI(b) (c)
in Division is ordered dis- prejudice.
missed without Costs shall be by plaintiff one-half Alfredo G. Parrish of Parrish & Del Gal- lo, one-half Moines, defendants. appellee. Des *2 Miller, Gen., Atty. Shirley Thomas J. Ann the statute does not Gen., Steffe, Atty. Channing furnishing Asst. address the issue of Dutton those serv- Werner, indigents Thomas represented by Asst. Polk At- ices to counsel. tys., appellant. for 19(4) Iowa R.Crim.P. does not reach the REYNOLDSON, J., Considered provides: issue either. It
UHLENHOPP, McCORMICK, McGIVE-
Counsel for a defendant who is finan-
SCHULTZ,
RIN and
JJ.
cially
expert
unable to obtain
or other
adequate
witnesses
to an
McCORMICK, Justice.
fense of the
request compensa-
here is whether an
application.
tion in a written
Upon find-
right
employ
expert
has the
an
and take
ing,
appropriate
after
inquiry,
depositions
when he is
services are
and that
the de-
represented by private counsel. Plaintiff
financially
is
unable to
English
18-year-old
is an
indi-
compensation,
the court shall authorize
gent
charged
with theft in the third
counsel to obtain such witnesses on behalf
degree
714.1(3),
under section
The Code.
of the defendant. The court shall deter-
His mother retained
counsel for him
mine reasonable
through payments totalling
Because
$900.
payment
and direct
pay
she could not afford to
for the services
pursuant
who rendered
chapter
them
handwriting expert
of a
deposition
ex-
815, The Code.
penses, plaintiff applied for those services
authority
The rule is
county expense.
When the trial court
indigents
witnesses for
at trial.
It does not
application,
brought
denied the
he
this cer-
distinguish
between
who are
tiorari action. We sustain the writ.
by court-appointed
presented
No issue
concerning
is
the rea-
counsel. Therefore it is authority
per-
necessity
sonable
of the desired services un- mitting
represented
der the standard delineated in
State
by private
testimony
counsel to obtain the
McGhee,
(Iowa 1974).
expert
witnesses at trial at
ex-
Handwriting
disputed
identification is
pense.
comparable
It
to Fed.R.Crim.P.
plans
to offer
17(b)
purpose
similar in
to section
testimony.
plaintiff
legiti-
has a
781.2, The Code 1977. It
authority
pursuing
mate interest
discovery. The
paying investigative
already deposed
State has
his alibi witness- Hancock,
(“Defendant’s
N.W.2d
es.
pre-trial
request for allowance of witness
only question
plaintiff
is whether
handwriting
fees for a
expert whom she
entitled to
premature
would wish to call at trial was
possible
Three
sources of authori-
properly denied.”).
imple-
The rule
ty
urged
were
in the trial court and are
ments an
right
defendant’s
to com-
They
reiterated here.
are section
pulsory process
and to
a defense.
Code,
19(4),
Iowa R.Crim.P.
and U.S.
Hegwood,
Cf. United States v.
562 F.2d
Const,
VI,
applicable
amend.
to the states
(5th
1977) (giving
Cir.
a similar inter-
through the fourteenth amendment.
pretation
17(b)); People
to Fed.R.Crim.P.
Watson,
(1966)
36 Ill.2d
present case, the State nevertheless con- cially). plaintiff’s remedy tends that accept is to counsel, assigned in We have here an which event section ($800 815.7 would authorize whom was available $900 ' requested investigative mother earnings) his own attorney. State ar- retain an justice” provided tion in the interests of now asks amount and — up. he shows his retainer is used on defendant’s be- depositions. half —a point accept This is the at which I cannot argument. appar- Defendant indigent defend- doubt that an I have no ently happened believes that'what constitutionally entitled to ant is appropri- retainer the received is none of the tive services public’s I believe it becomes the equal protection of business. ate cases as a matter of laws, public’s business when defendant asks for since an affluent defendant could public funds. I further believe that them with his own funds. Defend- obtain obligated must show retainer was used ant’s mother up under the them. in section 815.7—“the standard Assembly The General for like services as an to have means for defendant community.” It has enacted sec- services. *4 bottom, At raises tion The Code 1981: profession of whether the of law issue attorney appointed by the court to An completely private has become a business any person charged with a represent some of its old whether it has retained in this state shall be entitled to a crime generations public aspect. For which be reasonable shall aspect underemphasized by legisla- ordinary customary charges for and Attorneys indigents gratu- tures. defended community like services in the to be de- itously in the federal courts and received a judge in each case of the cided pittance Today in the Iowa courts. in mere court, including such sum or sums district attorneys are com- the federal courts such may determine are as public, pensated and in Iowa courts investigation jus- interests of public ordinary they receive from the appeal the tice and in the event of cost customary charges community. obtaining transcript of the trial and believe, however, I that we should not printing of the trial record and neces- swing from one extreme to other sary of the defendant. briefs behalf nullify altogether the traditional as- attorney not follow the case Such need pect profession of law. As officers of the county appellate or into the into another court, attorneys higher obliga- have a by the court at court unless so directed defendant, I would read section tion than tradesmen. light applying it to the 815.7 in that when grounds litigation further are not ca- unreasonable, compensated partially pri- attorney at- who is pricious or but if such torney vately partially publicly. When such does so his or her fee shall compensation, I accordingly. Only attorney attor- asks for determined one ney any require awarded in one would him to account for the use of fee shall be so cases, the basis of the felony that in class “A” retainer on customary charges in the com- two be authorized. munity. I think that if defendant desires Thus if a retained play according he must to the rules of
funds expense, still has further game provided by Assem- services and General appoint- provide, and asks to be bly. section 815.7 is restricted to Since that he can receive “attorney[s] appointed by the court” de- ed at services, he apply public payment to have his for his further fendant will have to the retainer appointed. should be to show that present attorney so The attor- past ney then to reimbursement was used for will be entitled conformity with the standard of section investigative services in accordance with ordinary and the section —“such sum or sums as the court 815.7—the community. for like services in the may determine are privately be true when a retained attor- would not disclose that fact same should expense money ney asking asking from to the it court account for when here, distinguished public, as public, for a fee from the whether for his further services. money for his own own services or for expressly deal with Section 815.7 I would sustain the writ and paid partial- the case of the district court for ly partially from funds and appointment of his retained funds, it nor does exclude such cases. public expense upon accounting for the re- those cases come within I would hold tainer of $900. section, they are
provisions of the section. The section does either, require, expressly that the attor-
ney partially paid must
disclose that fact when he asks for
funds. But the situation would be unthink- who has
able in which received