Harrison v. Clifton

75 Iowa 736 | Iowa | 1888

Reed, J.

— Plaintiff leased a farm and certain cows to the defendant for a term of seven years, commencing April 1,1886. By the terms of the contract, defendant was to pay as rent one-half of the crops grown on the premises, also one-half of the cream and butter from the milk of the cows. The lease also contains the following provisions : “If any of the rents herein specified shall become due and remain unpaid for the period of ten days, then it shall be optional with Harrison to declare this lease void, and, upon giving ten days’ notice thereof, reenter upon said premises, and remove all persons therefrom, without process of law, or to proceed with the remedy of forcible entry and detainer as provided by statute, and said Clifton to farm said premises in a good and workmanlike manner. * * * Harrison agrees that upon the payment of rents herein specified, and the fulfillment of the covenants herein made, to maintain said Clifton in the lawful possession and use of said premises until the end of said term.” In August, 1886, plaintiff caused a written notice to be served on defendant, informing him that he elected to terminate the lease; and, after the expiration of ten days, he instituted this action, alleging in his petition that defendant had neglected to pay the rent as provided in the contract; also that he had neglected to farm the place, or care for the cows, in the manner required by the lease, and that he had neglected to harvest certain grain and timothy grown upon the premises, and that he (plaintiff) had been compelled to expend a large sum of money in harvesting and caring for the same, and that such expenditure was necessary for the preservation of the property.

1. Forcible entry and detainer: forfeiture of lease: evidence. I. On the trial in the district court the court excluded certain evidence offered by plaintiff to prove that defendant did not feed, care for or shelter the cows, as requiredb y the contract, and that he did not cultivate the leased' premises a g00q anq workmanlike manner. It is doubtless true that the effect of the defendant’s neglect in these respects would be to lessen the amount of the rent, and, being injurious to plaintiff, he would have his proper remedy therefor. But the parties did not make that a ground for terminating the lease. Plaintiff was entitled to receive as rent one^half of the crops grown on the premises, and one-half of the cream and butter from the milk of the cows, and it was the failure to pay such rent when the same became due which, by the express provisions of the lease, was made a ground for terminating it. For the neglect alleged, and which the excluded evidence, we may assume, would have proven, his only remedy was in an action for damages. The ruling of the court in excluding it on the trial is clearly right.

2. _: _: time for delivering share: construction. II. The evidence without conflict shows that while defendant delivered to plaintiff one-half of the butter manufactured, he did not deliver any cream, but sold all not manufactured into butter, and kept the proceeds until after the notice of plaintiff’s election to terminate the lease was served on him, and until after the suit was instituted, when he paid one-half the amount to him. It was insisted that on this state of facts plaintiff’s right under the provision of the contract to terminate the agreement is clear. It is to be observed, however, that the lease makes no provision as to the time or times when the cream should be delivered. If defendant should deliver, during any period of the term, and within a reasonable time, an amount of cream equal to that he had previously appropriated, the conditions of the contract would be performed. The court instructed the jury that, as no time of payment was specified in the contract, defendant was required to pay within a reasonable time, and the correctness of the instruction is not questioned; and the jury may well have found under the evidence that he had not had a reasonable time when the attempt to terminate was made, for but a small portion of the term had then elapsed.

3. Appeal: from justice's court: filing papers in appeliate court: what sufficient. III. Plaintiff filed in the district court a motion to strike the cause from the docket and discontinue it, for the reason that neither the pleadings nor the transcript were filed in the clerk’s office, The justice had in fact returned the pleadings, together with the transcript of his docket entries, to the clerk; but the real ground of the motion is that the clerk had neglected to make a note of the filing in the appearance docket. The motion was overruled. Appellant relies on section 200 of the Code, which requires the clerk, immediately on the filing of a pleading, to make a note of such filing in the appearance docket, and provides that no pleading shall be deemed filed until such entry is made ; and on Padden v. Moore, 58 Iowa, 703, and Nickson v. Blair, 59 Iowa, 531, in which we held that this requirement is mandatory, and that a pleading could not be regarded as filed until the note of the filing was entered on the appearance docket. We are of the opinion, however, that section 200 does not apply to actions appealed from justices of the peace to the district or circuit court. This is clear, we think, from the provisions of the statute specially applicable to that class of cases. Section 3583 makes it the duty of the justice of the peace, when an appeal is taken, to file in the office of the clerk all the original papers relating to the suit, with a transcript of all the entries in his docket. It is clear that the word “file,” as used in that section, means simply to deposit. The entry in the appearance docket is not essential to the filing as there directed, for that is required to be made by the clerk, whereas it is the justice who is required to file the papers. Section 3584 provides that, “upon the return of the justice being filed in the office of the clerk, the cause shall be deemed in the circuit court.” The word is used in the same sense in that as in the previous section. The cases cited were brought originally in the district court, and have no bearing on the question. The motion was properly overruled, as was also the motion for a continuance based on the same ground. Affirmed.