Frank v. Hollands

81 Iowa 164 | Iowa | 1890

Hobinson, J.

The note in suit purports to have been given for ninety-three dollars and thirteen cents by the defendant, James Hollands. It was given for lightning rods erected upon a dwelling-house owned by his wife and codefendant, Huida Hollands. Plaintiff asks judgment for the amount of the note against both of said defendants, and the foreclosure of a mechanic’s lien on the building and land upon which it is located. The answer of Halda Hollands is a general denial. James Hollands alleges in his answer that the note as originally drawn and signed was for thirteen dollars, and that since it was made it has been changed without his knowledge or consent, so as to appear to have been given for ninety-three dollars and thirteen cents; that plaintiff is not an innocent purchaser for value, and that the note is the property of the original payees, Cole Bros.

On a motion of James Hollands to transfer this cause so far as it related to him to the law side of the docket, it was “ ordered that the question of fact could be submitted to the jury ” at his request. A jury was impaneled, and, after the evidence was introduced, they were requested to answer three interrogatories. They answered in substance that the words “ ninety-three” which appear in the body of the note were not written therein when it was signed by Hollands ; that they have not been changed since they were written ; and that the figures in the upper left-hand corner of the note when first written therein were “ 13.13.” The plaintiff thereupon filed a motion for judgment on the special findings, and the motion was sustained. Additional evidence was offered on the issues presented by the answer of Huida Hollands, and on the twenty-third day of March, 1889, judgment was rendered in favor of plaintiff and against defendant, James Hollands, on the note in suit, for one hundred and one dollars and sixty-five cents and costs, and in favor of plaintiff and against defendant, Huida Hollands, for ninety-three dollars and thirteen cents, and interest, and a mechanic’s lien for the amount of the judgment against James Hollands established, and a sale of the premises ordered.

i. pbaotiojs in submisskm of •juryf appeal. I. Appellee contends that the evidence introduced on the trial in the district court was not so preserved, an<^ ma(3-e a part of the record, as to author-'VL& a trial de novo in this court of any part °*’ the cause, and that as to appellant, James Hollands, the cause was tried in the court below as at law, and cannot be reviewed on errors assigned as far as they are based upon the evidence.

We do not understand from the record that the case as to James Hollands was treated and tried as an action at law, but rather that certain questions of fact were submitted to a jury for determination. That practice was authorized by the revision of 1860, and is in barmony with the eariier chancery practice. The verdict of the jury was designed to inform the conscience of the chancellor, and might be followed or disregarded as be deemed proper. McDaniel v. Marygold, 2 Iowa, 502; Revision of 1860, sec. 2999. In sucb cases tbis court was not deprived of jurisdiction to try tbe case de novo on appeal. Chambers v. Ingham, 25 Iowa, 225. But it was held in Hobart v. Hobart, 51 Iowa, 512, that tbe Code of 1873 so changed tbis practice as to require issues of fact in equitable actions to be tried by the court. The court below, therefore, erred in submitting any of the issues to a jury, but appellants do not complain of that action, nor do they complain that the cause as to James Hollands was not fully transferred to tbe law docket, and tried as an action at law.

Although tbe court sustained the motion for judgment in favor of plaintiff and against James Hollands on the special findings, yet it is evident that the special findings alone did not warrant sucb judgment, but that, tbe special findings were considered in connection with the evidence submitted, and that tbe judgment rendered against tbe husband was in fact based upon tbe evidence and perhaps the second special finding. But whatever tbe facts may be, we; are of the opinion that tbe entire- case is here for trial de novo, if tbe evidence has been properly preserved, and that no part of it is triable on errors assigned.

' bíñ 'ofrexcép-lon ' II. It appears that when judgment was rendered tbe court ordered that defendants have sixty days in which to file a bill of exceptions. The bill of exceptions was not filed until the nine-teentb day of June, 1889, or more than sixty days after tbe order was made. It was what is known as a skeleton bill. On the third day of August, 1889, tbe defendants filed the short-band reporter’s translation of the evidence. The abstract purports to contain all the evidence offered and introduced, with the objections thereto, and the appellee does not claim that all the evidence introduced and all the evidence offered is not before us, although he has filed an additional abstract. We, therefore, conclude that all the evidence offered on the two trials in the court below is set out in the record in this court.

It is manifest that if the case were not triable here de novo, under numerous decisions of this court the evidence could not be considered, because not made a part of the record within the time fixed by the order of court. But in equitable actions, triable de novo in this court on issues of fact, it is sufficient if the evidence is made a part of the record within the six months allowed for an appeal. Code, sec. 2742, as amended. Since that statute fixes that time within which the evidence must be made of record, it is not competent for the court to make it less, and the order of the court in this case limiting the time to sixty days was, therefore, of no effect.

3. pkomksobt tuíein'biank: fnneooentn: purchaser. III. There is an irreconcilable conflict in the evidence as to the contents of the note in suit when it was signed. Two witnesses testify positively ^le note was then drawn as it now appears, while James Hollands swears that jjj wag n0^ anq that the words “ninety-three ” which make the note read: “I promise to pay to Cole Bros., or bearer, ninety-three dollars and thirteen cents,” etc., were not then inserted. Before .the rods were erected, and the note was given, James Hollands signed an order by which he agreed to pay sixty-seven cents per foot for the rods which should be erected. It is not disputed that one hundred and forty-seven feet of rods were erected under the order, and that the price thereof would aggregate more than the amount of the note. The note was given after the rods were erected. After it was signed by the husband, the wife was asked to sign it, and was ábout to do so, when she was dissuaded by her husband. He gives as a reason for wishing his wife not to sign that he “knew he was bit, and didn’t want to get bit any more,” although he claims that he was to pay but thirteen dollars for the rods, and had signed a note but for that amount. About the time the note became due it was presented to him for payment. He then examined the note but made no objection to it, and said he would pay it if he had the money. At that time the note was in its present condition. We conclude that a preponderance of the evidence shows that there has been no alteration of the note. But if it had in fact been altered, as claimed by appellants, it would appear in that case that it was but little more than a blank when signed. It is shown that the plaintiff purchased it before maturity for value without knowledge of the alleged alteration. Under these circumstances James Hollands could not be heard to deny the making of the note.

4 Meohakio>s mentsby'hus-wIfeVprop-erty' IY. The pleadings show the filing of a statement for a mechanic’s lien for the amount in controversy. Huida Hollands denies that she authorized her husband to contract for the rods in question, but there is evidence which tends to show that she was consulted about the rodding before it was done, and agreed to it; and she admits that she was present when the rods were put up, and made no objection to what was being done.

Our conclusion upon the entire record is that the judgment of the district court is correct. It is, therefore, AEEIMED.