15 N.W.2d 284 | Iowa | 1944
[1] The judgment on which the execution was issued was procured by the appellant's mother on a petition containing two counts, the first count being on a note for $700 executed by the appellee, and the second count being on an account for rent. On February 18, 1941, the judgment creditor, who subsequently died, assigned the judgment to appellant. The execution was issued on May 28, 1943, and after the limitation period specified in said Code section 11033.1. *1136
The petition herein was filed July 20, 1943. The judgment appealed from was entered on October 2, 1943; the appeal was perfected October 29, 1943, and the appellate proceedings are under the new rules. The trial court found and decreed that the $700 note in count one of the petition on which the judgment was based was given for rent owing by the appellee to the judgment creditor, which note was merged in the judgment in an action on a claim for rent, within the purview of said Code section, and that the enforcement of the judgment by execution was therefore barred.
It is our judgment that the record amply sustains the findings and decree of the able trial court.
The appellant relies for reversal upon the following propositions: (1) The judgment was not rendered in an action on a claim for rent within the meaning of the statute (2) the judgment was based on a note executed as the result of either an accord and satisfaction or a novation (3) the court erred and abused its discretion in reopening the case to permit the appellee to offer additional testimony.
In support of propositions 1 and 2 the appellant relies upon the testimony of herself and another witness that during the years 1932 and 1933 and prior thereto the appellee paid all rentals, but borrowed money from the appellant's assignor on numerous occasions and gave her notes therefor; sometime in 1934 a dispute arose as to the amount of the indebtedness and it was compromised at $700, and the note in question was executed. She contends that this was either an accord and satisfaction or a novation, and that, even though the note had been given for rent, a judgment secured thereon would not be within Code section 11033.1. In support of the theory of an accord and satisfaction, appellant cites Sparks v. Spaulding Mfg. Co.,
There was clearly no error in reopening the trial just after it had been closed to permit appellee to deny an item of testimony which had been overlooked, and to offer the receipt which she had also forgotten.
[2] While this appeal is triable here de novo, the trial court had the witnesses before it and its findings and decree are entitled to consideration, particularly since the testimony was conflicting and its probative value important. Donovan v. White,
The decree is — Affirmed.
All JUSTICES concur.