*1 Appellant every right accorded .eral. to which he was entitled, and we are satisfied that decision rendered came as the result of careful examination of the record. The amply supported by decision the record and we find no error therein. judgment the trial court is affirmed.—Affirmed.
All JustiCes concur. Kuiken ux., appellees, Gerrit et ux., Julian Garrett et
appellants.
No. 47712. (Reported 149) in 51 N.W.2d
January 8, 1952. May Rehearing 1952. Denied Johnston, Johnston, Shinn & Knoxville, appellants. Johnson, Johnson & of Knoxville, appellees. C. I of J. Division amended and sub-
Thompson, petition, May 13, stituted filed 1948, alleges they leased buildings certain and farm lands from defendants for year from March 1, 1948, by to March oral agreement; that they possessionthat entered into defendants thereafter served upon plaintiffs certain notices tenancy to terminate and notices quit, prosecuted commenced and entry various forcible actions, amounting detainer to a breách defendants of implied quiet covenant for enjoyment of the demised prem- ises, being charged malice giving of said notices and the bringing of said ouster say actions. they damaged Plaintiffs lost time in attending to the litigation notices and *5 liable they paid or became by defendants, and that
precipitated pay one half failed attorney fees; that defendants pay lease; they ask by the required as seed oats cost of damages. exemplary (reduced to $180 the sum of plaintiffs IX ask
In División they court) because in the instructions $150 a maximum of 562.7, 1946, to 562.6 and Code of entitled, under sections were they but year March for another after hold over quit on a notice to the service of defendants evicted a constructive notice constituted February 26, 1948; that pay compelled to they acted it and were eviction, and per at month. premises $15 for ten months for other rental notices, but giving of the admitted the The defendants plaintiffs had breached malice, and that the denied averred justified in defendants were their ways, and that lease in various They property. coun- regain possession of their also attempts to damages alleged breaches of the terclaimed, asking for various plaintiffs jury verdict by plaintiffs. The returned lease their counter- $10 defendants the sum $845, and for ap- defendants judgment upon From the verdict have claim. pealed. major divi- eight set assigned
Defendants’ errors are out in all subdivided so that However, many are sions. of these seventy^one errors, major minor, claimed are some there impossibility is an to discuss grounds for reversal. It obviousi length opinion. How- each of these within the reasonable duplications. We have consid- ever, many of them are in effect assignment those which seem ered each discussed opinion which of merit. We believe that the have a semblance complaints. gives attention to-the substance defendants’ follows upon for re proposition I. Defendants’ first relied strenuously they argue length, and at concerns versal, and which contradictory rulings by two dif assert to be made what District, Fifth of which Marion judges ferent Judicial County filing first part. Upon is a and, herein, attacked it motions to dismiss defendants Judge Vincent, Earl W. before alternative, motions to- strike. motions determination, came for denied the whom these motions ruling left This dismiss, but sustained the motions to strike. *6 damages because of $25 the only their claim plaintiffs to pay half of the cost the to one of failure of defendants alleged upon the leased plaintiffs and used purchased oats seed year 1947. for the ground and filed an amended substituted
Thereupon, plaintiffs Believing trial. they eventually went to upon which petition, from substance no different the first in this was that and by motions to dismiss again attacked filed defendants one ground being the latter that strike, the of the second material to in with the cause action was effect identical first pleaded case”, had “law of the ruling thereupon become the the that plaintiffs not the claims. entitled to reassert same therefore Judge Prall, judge S. E. another These motions came before judicial district, and so of the Marion District Court. the same Judge Prall, believing there difference in that was substantial petitions, eventually considered motions and over- the two that, It if in fact no apparent ruled them. there was material is change allegations in the made in amended and substituted was petition, overruling Judge he effect the decision Vin- purpose For the of the discussion in this division we shall cent. assume, deciding, without that this is what he did. support
Defendants cite several authorities their con Judge legal right change Prall had no tention the hold Taylor ing them, of the court. Canning Corp., One of v. Grimes It point. 257 N.W. seems in was there held right of the Polk judges that one District Court had no change, and overrule, a prior effect determination of an judge of page holding other the same court. See 1286. The Only authority. is weakened the lack of supporting much case, Exchange Adjustment Co., one Farmers Union Iowa readily Iowa N.W. cited. apparent, is It is how ever, support Taylor only not It does case. holds County enjoin that the district court of Marshall not could judgment municipal enforcement of a rendered court of city juris of Marshalltown. These were courts of concurrent diction, and, judgment municipal since the court was entirely void, jurisdiction another court had no to examine its validity. way The existing situation is in no comparable to that same court, where the whether judge, or a different same any rulings prior at passes its own time examines judgment. final , that, demurrer, when a motion to often been held
It bas
upheld
against
has
a plead
motion to strike
dismiss
attempts
over,
but
pleader
plead
fails to assert
ing, and the
grounds
relief,
a motion to
any new or different
strike
sustained,
motion is
that no error
proper,- and if such
can be
ruling.
error,
committed,
if
was
upon the
one
predicated
appeal
It
ruling, and
must be taken therefrom.
in the first
practice,
pleading
our former
over
held,
was also
under
(This
ruling
changed
waived the error.
has been
after an adverse
*7
by'our
Procedure,
331(b).)
Rules of Civil
rule
Au
present
proper
a motion to strike is
thorities to the effect that
where
repetition
pleading
first,
is but a
the
and
of
cited
the second
by
are
here,
Lueck,
defendants
Weimer v.
234
relied
Iowa
Exchange
1231,
291;
Adjust
15 N.W.2d
Farmers Union
v. Iowa
Co., supra;
Indemnity Co.,
Simmons v. Western
171
ment
Life
429,
166;
Polke,
154 N.W.
Swartzendruber v.
205
Iowa
Iowa
382,
They
right
793 may notion, an error he not correct court 'becomesconvinced a (Italics supplied.) it.” Darling Blazek, Iowa To the same effect is There, response argument N.W. 962. to the that the sustained, ruling upon, demurrer, which was became the first court, said: case, Weaver, for this law Justice “Parties litigation right to a no1vested mistakes to court’s any judgment final their correction at time before prevent. entered.” Indemnity Co., supra,
In Simmons v. Western Life a case urged by defendants, qualification proper is set out the cited said page doctrine contended them. It is there at *“* * Iowa, 167 of 154 page rulings, N.W.: such court, until recalled set aside became the law the * # (Italics supplied.) case Judge ruling It is our Vincent’s conclusion did not preclude the law so as to either become of the case himself or judge changing court from it another same before final judgment. The decision each case that of the Marion any judge thereof, District Court rather than of individual any entry be corrected court at could time before of final said, As judgment. Justice h'ad Weaver the defendants no vested require right perpetuate mistake. court its Taylor Corp., In so far Canning supra, Grimes is in *8 expressed holding conflict with the in opinion this division of the it is overruled. By.
II. attacking objections motions pleadings, the evi- dence, instructions, exceptions to and motions following the verdict, question right the plaintiffs defendants raise of the damages wrongful eviction, alleged to recover in Count I they petition, of their when did premises not remove from the during the term of the lease. It will that in spite be noted many the notices and ouster suits with which defendants deluged during part year them the latter early 1947 and the 1948, year plaintiffs months of the the possession, remained in uneasy though may been, it have until March 1 of the latter year. original This the termination of their date lease.
It is the law in Iowa that a tenant is evicted when he premises during leaves the the term in response to a notice to 620; Eggers 469, 471, N.W. Blume, Tarpy quit. 645, N.W. 873. This rule Paustian, 190 Iowa they in claim plaintiffs’ petition, which II of applies to Count 26, quit February notice to Ihe damages for tlieir eviction rights to hold over they say deprived them of their 1948, which in division. It will a later year. This be discussed Por another that, possession during retain the they did, however, is evident inclusive; February 1948, 29, 1947 to year 1, March from I we in Count all relate to time damages claimed since the they may recovery a under those determine whether must circumstances. jury that, No. told court, trial Instruction under Division I of their recover plaintiffs
before could of the evidence: by preponderance a must establish commencing on or about October “That the defendants upon plaintiffs certain notices to be served caused to and cancellation of quit for the termination and certain notices legal proceedings, gain certain lease and also started the oral doing herein, and possession of the real estate involved disturb and maliciously, with intent to acted so said defendants quiet enjoyment of annoy pjainliffs possession in their said real estate.” placed perhaps giving
In the court this instruction interjected the element plaintiffs, since it undue burden wrongful interference with their to that of malice addition plaintiffs complaining. are peaceable possession. But not possession always a tenant in can be AVehold it is realty; right damages because he remains denied annoys him and disturbs if the landlord harasses but that systematic oppression inter enjoyment, by course of quiet his required. true, may This even ference, just compensation be is here, on founded, as we think it is though tenant’s is action case, in ac law the in tort. It was the rather than contract instructions, must be found. that malice with the court’s cordance question discussing the hold, which without are Iowa cases There may, possession "who disturbed his malice, that a tenant *9 damages for breach surrendering premises, recover without 128 Sullivan, v. enjoyment. Harmont quiet the covenant
795
such a situation. While
951, involved
Sulli
309, 103 N.W.
Iowa
during
lease,
term of
possession
in
his
van,
tenant,
was
with others
landlord,
in confederation
harassed
plaintiff,
expira
on the land until the
him. He remained
and disturbed
accrued,
for the rent which had
and, when sued
tion of his lease
permitted
damages suffered. He was
to re
counterclaimed
Boyer
In
directly
point.
in
v. The Com
case seems
cover. The
491, 497,
720, 722,
Bldg.
Co., 110 Iowa
N.W.
mercial
Inv.
being guilty
actual,
landlord,
phys
“The
without
an
we said:
possession, may yet
the tenant's
do such acts
ical disturbance of
justify
premises.
he
not
leaving
will
the tenant in
does
as
If
damages.” (Italics
leave, yet
may
sup
he
have an action for
plied.)
Mink,
also Kane v.
64 Iowa
III. of upon not instruct want complain that the court did Defendants circumstances that under the probable But we think of cause. further, malice; and inseparable from prevailing here it is Instruction by paragraph the final of matter covered they might consider jurors were told 8,No. which the bringing the actions justified in whether the defendants were they determining whether acted entry detainer, in forcible upon clearly introduced and instructed with malice. This probable cause. question of lack of to, re of malice think there was sufficient evidence We jury. During period quire submission to the upon premises served occupancy defendants caused to be notices, separate follows: them ten 1947, 1, December tenancy 1. would terminate Notice that by 29, 1947. registered mail on October sent not shown Three-day quit,
2. notice manner service 29, 1947. record, on or about November served court, by suit in J. P. served Original 3. notice of ouster deputy 2, December 1947. sheriff court, served Original
4. suit in district notice ouster by deputy 24, sheriff December 1947. Kuiken by in the due,
5. served the Garretts Notice rent January 5, on 1948. home contracts”, oral
6. and termination of “Notice of rescission January 5, 1948. by Kuiken home on served the Garretts in the Three-day quit, served the Garretts 7. notice to January 5, Kuiken 1948. home on deputy Three-day quit, served sheriff on 8. notice to January 22, 1948. court, served Original
9. of ouster suit in district notice January deputy 30, 1948, presumably sheriff. February 1948,
10.Three-day quit, notice to served on presumably by deputy sheriff. entry petitions filed four in forcible
Defendants .verified in an action commenced and detainer. Two' of them Were court, filed on December 1947. justice being the first tried (as plaintiffs and defendants in that the cause was tried After they by jury verdict, filed, on December action) defeated petition in the same cause 24, 1947, an amended and substituted December appeal the district court. On hearing. January 8, was dismissed motion after On Marion This filed their in the District Court. *11 January £6, 1948, January and was dismissed them on on by in they next filed another action the district court. This went upon February 18, resulting, February 17 and on 1948, to trial dismissing 24, in a decree the case. upon plaintiffs,
The first notice served these on October 1947, by registered mail, advised them their that term would followed, end on 1947. This was under of December date 28, 1947, by quit; 2, 1947, November notice to On December petition, justice Up came the first in court. point to this defend- apparently acting upon theory ants had forty acres, lease was for less than and brought so them under provisions 562.5 562.6, Any of sections and Code of 1946. controversy adjudicated as to amount of land involved was in February 24, the trial court its decree of 1948, where it was held that all of land was included in one lease and sixty-five totalled about acres. 24, 1947,
On December defendants filed their amended and petition substituted in the upon Marion District appeal Court finding jury from the adverse of the as above noted. how- Here, ever, they alleged grounds. different They plaintiff said that Kuiken agreed Gerrit had that he would repair, maintain and care property for fences and other defendants the de- therefor; premises, mised and been promised had compensation plaintiffs but that carry had failed agreement. out this It was further plaintiffs claimed that guilty were gross negligence performance farming operations. of their
Upon the appeal dismissal of this for technical reasons the defendants original commenced an action in equity in the district preceded, court. This was January on 1948, by a notice to quit; date, by and on the same a “notice of rescission and termi- nation contracts.” This, oral it stated, was given was “on your account of failure and pay refusal to prem- rent as to said land, provided said to farm and refusal your failure and ises forcible The .the oral contracts.” required said and January to, filed on referred action last above entry and detainer plaintiffs, premises leasing alleged the good farm- with land in accordance farm agreed to said had clover grains into put all of said land and to ing practice one half of to receive were and that defendants alfalfa, plain- alleged failure of the petition, then crops as rental. paid tract; that the total rent forty-nine-acre farm the tiffs to value corn; the reasonable ninety only about bushels was plaintiffs $20 yard leased buildings, garden and named because of the defaults unpaid; and month, which was per This premises. possession of entitled to defendants January 26, 1948. on dismissed defendants petition was caused to be served January 22, 1948, defendants On demanding quit. The reason notice to plaintiffs another you have failed to notice, “that given in this possession' was caring you for cattle which feeding the services perform buildings.” This was the said perform as rent for agreed to entry petition for forcible substance, in the alleged, ground *12 to trial January 30, 1948, and which went filed on and detainer trial court on was dismissed February 17 and 18 and on merits. date, upon the the later upon called both defendants evidence that
There is also they cash, which $200 a demand for plaintiffs at one time with premises, although there value of the actual rental claimed as the noted lease. It. should also be agreement in the was no such on entry and detainer action they filed the last forcible that February trial on 17 of 30,. 1948, and forced it to January February 29, on although plaintiffs’ term ended year, the same not plaintiffs were all times claimed that at and defendants they had, fact, waived and that hold over thereafter entitled to any right. such only the defendants herein did will be
It seen they notices, and that different served ten serve or cause to be ouster, actions of petitions in three different different filed four right giving possession a to grounds alleged them as but that attempt right a that a landlord has greatly. It is true varied grounds therefor; just thinks he has tenant, he oust his if damages be is not to liable for if be and sucb case be held qualification plaintiffs concede. But tbe italicized fails. This repeated notices, If important. is be serves institutes above alleging grounds, prove different actions, fails to repeated trial, may fair upon we think a inference of malice any of them by jury. actually Whether defendants were drawn a malicious be determine; only jury for us to we bold that there is not question. urge exemplary pu
IV. Defendants that ordinarily may damages not be recovered in nitive actions for breach of defendants agree contract. We with action here sucb; they planted squarely upon themselves the contract theory paragraph 20 of their peti amended and substituted they say: tion, in which “That this action is based breaches contract, including quiet breaches of the enjoy covenant for * * # prosecution.” ment and is not an action for malicious Plain general tiffs concede that the rule is claimed defendants. they say error, But that the if such there was, is not available it'by to defendants because failed to raise any proper ob jection, otherwise, upon motion or the trial below. We are forced point that the conclude is well taken. We find nothing in the record which shows that the trial court was advised that defend claiming ants were exemplary damages are not allowable in an action contract. We have examined the motions to dismiss and to strike from the amended and petition, substituted the motion to withdraw from jury, exceptions and the only No. which Instruction is the dealing one with exemplary damages. motion to strike attempt included an to strike allegation of legal malice as a conclusion, which was not good, since such proper conclusions are supported where by proper allegations of fact. Mauser v. Page, Iowa, N.W.2d many other support authorities this rule. The motion was overruled, properly therefore since sought it to eliminate the *13 paragraph. entire Defendants points were at all directing their question attention to the of malice rather than that of exemplary damages, presented and nowhere present their alleged. error fairly to the trial court. n Nor position do think their we sound under' the circum- prevailing stances here. exceptions There are general to the rule, 800 Damages, Jur., 15 Am. It is said in contract actions.
even : 273, 709 page section obtain, however, exceptional in those rule does not
“This tort, independent, to an wilful amounts where breach cases may be recovered under exemplary damages in which event * * *. wantonness, oppression or allegations malice, proper for breach of a contract states are recoverable In some abuse, insult, wrong, intentional there has been some where duty as neglect of to evince reckless harshness, gross or such where, only where, rights of others or indifference of the act.” accompanied with a fraudulent breach Dixon, 108, 232, 49 Ann. 70 C. 3 v. S. S.E. also Welborn See Stanley, v. 407; & 123 Tex. Gas Elec. Co. Southwestern Cas. Nevada-California-Oregon Ry., 413; v. 70 Burrus 157, S.W.2d 750; 156, 926, P. L. R. A. 1917D Forrester South 145 Nev. 38 705, A., P. L. 247, 753, 48 R. 36 Nev. P. Co., ern Pacific 1.S.,N. element of
We have held above that malice case, jury in this and it have to the must properly submitted present could have been found to be because otherwise there been except item plaintiffs, $25 for the for seed verdict for the no must light In the conduct the defendants oats. legal Exemplary tinctured with oppressive be malice. held plaintiff compensation as damages are not allowance as a only, general rule, punish under injuries, but actual example op offender, and as an to others such to the ment penalties. has its additional We pressive or malicious conduct Co., Iowa Pearson Constr. said in Stricklen damages plaintiff if the is awarded N.W. above “the compensation his actual it is because amount needed complains malice, has been done in wrongful which he act of duty disregard reckless high-handed or that the or in such by way increased, punishment example.” is thus award malice, supplied.) present, The element of when has (Italics regarded assessing sound reason for generally been addi against offender, think punishment we it fur tional basis here. nishes such special damages, specifically
V! to the allowance of As attorney fees, Sullivan, supra, Harmont v. deter- time and loss of
801 page said at 318 plaintiffs. favor of Here we mines tlie issue in 103 Iowa, page 954 of N.W.: compelled bring protect action to “Defendant herein was jury and, found there such connivance possession, his if was parties who plaintiff and other disturbed defendant’s [between possession], defendant was entitled the costs and ex- recoven fees, including attorney’s reasonably expended or in- penses, damages implied for breach of the covenant of curred seisin.” case, bar, In as in the case at tenant the Harmont did possession term, until the end of his not surrender but he was expenses damages brought recover and permitted to about wrongful right quiet enjoyment. with his interference See Paynsville Eggers Mitchem, supra; Dilly Co., v. also v. Land 971; Foshay 155 N.W. Shafer, 173 Iowa 116 Iowa 1106; Bogle, Adair 238; N.W. Am. Jur., Covenants, Conditions, etc., 159, page section 586. complaint plaintiff
Defendants make some also that Gerrit recover for engaged Kuiken was allowed to loss of time while away However, objec- from the farm. he testified, work without value tion, that the total reasonable of the loss him- of time of by the litigation self and wife caused notices and was the sum jury question. We think there was a $200. assign VI. Defendants error the refusal of the permit court to cross-examination and direct examination as to lease; further, upon the terms of the and holding the court’s question alleged plaintiffs that the of the failure of hay to feed had adjudicated, to defendants’ cattle been and hence could not inquired case be into at bar. entry
In final forcible and action, detainer defendants (then plaintiffs) claim present made plaintiffs were holding possession wrongfully because had breached the by failing as they agreed. lease to feed the cattle had The trial finding court there made a as to the terms of the lease, and held plaintiffs that all of the land had been rented to at one time agreement; further, one oral that this contract con- requirement tained for feeding no of the cattle. Tinder this state opinion of the record we are of the that the court correct in finding adjudicated that these matters had against de- in issue in the forcible lease were provisions
fendants. questions were decided. fact action, and the entry detainer *15 alleged litigate an breach of to permitted be cannot Defendants an action, and after entry and detainer in a forcible the lease damages for the same action for holding bring their to adverse go they were entitled to nothing upon which They had breach. They argue plain- that because question. jury upon'this the to 1948, 1, March and the land on from the demised removed tiffs February 18 of the same decided on entry action was forcible therein, the appeal from the decree could not year defendants this, holding still being Granting the court’s is moot. question against them, which were not entitled adjudication a final guise. further, under a different litigate judgment binding upon say the was not also Defendants entry party not a to the forcible Garrett, because he was Julian and wife. Julian Garrett testi- Defendants are husband action. My vicinity 700 acres in the of Fifield. have around fied: “We management after legal title. I look the of fhe holds the wife 700 acres.” legal “The land in my said: title to the
Mrs. Garrett have the investment in it. We both the Both us own name. (Italics supplied.) made in this case.” that are claims leasing handled matters involved Garrett in the Julian party and he was a to the first plaintiffs, two actions land signed plaintiffs. most of notices served In brought and prin- entire record shows that Julian Garrett was the fact, the transactions He cipal in all of the involved. cannot now actor say belaboring plaintiffs that he over the be heard to shoul- by but is not defendant, happened other bound what ders of the of his activities. He is within rule laid a result down Compagnie Rico, La des Sucreries Porto v. de 217 U. S. Souffront 846, 851, 54 L. Ed. it 475, 487, 30 S. Ct. where was said: principle prosecutes case is within the that one who “The protect a suit the name of another to establish and or defends prosecution right, his or assists in the or defense of an own who own, of his action in aid of some interest and-who does this knowledge opposing openly party, is as much bound fully and as entitled to avail himself of it as judgment
803 if be be he had as would party, an adverse estoppel against an record.” party a Randolph Co., 1152, Iowa Hotel v. also Hoskins See A. R.L. 1125. 423, 211 N.W. Thompson, 31 Iowa 82: v. Stoddard
We said prosecutes action party, not a defends who, though “One costs, by doing things those counsel, paying by employing judgment is bound party, done usually are which therein.” rendered Milburn, (Clarke) effect are Iowa
To the Davis same Moreland, 96; Baxter, Reed & 246; McNamee v. Rep. Iowa 52 N.W. 39 Am. Myers, St. 298. Co. assignment Complaint is made VII. defendants’ objections sustaining court erred in to certain error V that the by their It is a questions say counsel. sufficient answer to asked *16 showing as what the that there is no to answers would have ruling been This been, cannot, had the otherwise. court appeal, presume that answers would have been favorable to aggrieved Litigants feel party. part the who that of their case erroneously been excluded must assume has the burden of making showing. many affirmative This an has been decided. times See Heller, 1356, Estate of 233 1362, 586, In re Iowa 11 N.W.2d many and cases cited therein. assignment same numbered error of also deals with
the an permit refusal the court to amendment to conform proof after evidence had the been concluded. large This rests ly within the discretion of court, the trial and we find no abuse ruling. urged by in its is plaintiffs It also the matters sought rejected elicited be the evidence, and to brought be proposed into the the case amendment, adjudicata, were res rulings judgments because and in the entry forcible and detainer actions. While we inclined are to think there is merit we contention, find it unnecessary to so decide. Further predicated
VIII. error is upon the court’s rulings which objections sustained questions put to the de fendant Julian Garrett feeling as to his toward the plaintiffs, and his bringing motives in the various ouster suits and in giving the various notices. Malice being important part plaintiffs’ case, answers should permitted. have been Halligan v. Lone
804 551, 1277, 1286, 300 230 Iowa N.W. Exchange, Tree Farmers again offer But here no or state and cited therein. authorities tendered, have been was ment to what the answers would testimony defendant, other is there also in evidence joint reasons and in their Loyat Garrett, as to1their motives attempting plaintiffs prop from the various activities in to oust erty. prejudicial appears. No error complaint is made of admission of the
Further
testimony
Teter,
attorney
represented
L. D.
who
defend
justice
appears
the trial of the
court ouster suit. It
ants
justice
at the close of the
court trial there was some discussion
(then
defendants)
between Mr. Teter and
counsel
existing
parties.
a
of all
difficulties between the
about
settlement
agreement
attorneys
The terms of the
reached
were not
appears
rejected by
evidence,
present
but it
testimony
defendants. Some
of this
witness
admitted
objection;
objections
without
as to much of it the
came in after
given,
answer had
therefore too late. Ducummon
Johnson, 242
488, 496,
231, 236;
v.
Iowa
N.W.2d
Livingstone
47
Dole,
1340,
641; Marple
184
167 N.W.
1343,
639,
Ives,
Iowa
v.
602, 603,
many
We holding are not to be plain considered adopted tiffs had a proper here method of proving malice. No that defend- from fact fairly drawn be could conclusion such record, an unspecified and, in this accept an refused to ants difficulties with of their for settlement proposition unknown proposition, unfair entirely may It plaintiffs. attorney. We also realize that of their agreement spite opposing attorney has in before the come answers sometimes But, cir- objection. under such lodge an opportunity to a fair show, by stating duty the record so cumstances, to make it is his objection per- be asking that the difficulty the court or his here. We have answer. This was not done precede the mitted to n represented criticizing who the able counsel thought of no hotly hurly-burly and confusion of a con- In the defendants. attorney difficult for an to overlook jury it is not trial tested we find But must take the record as such as this. we a matter it. plaintiffs’ II of claims dam
IX. Division premises from the rather than for wrongful eviction ages for quiet enjoyment, for which was the basis covenant of the breach alleges Division I. It recovery asked under 1, 1948, March was extended term, originally to terminate on provisions of sections 562.6 year virtue of the for another provides 1946. 562.6 the case 562.7, Section Code excepting croppers, mere the term shall continue leases, farmof following crop year upon the same terms as those given a written notice for termination is original lease unless following. term shall end party, when the on March either 562.7 manner of service of the notice of defines the Section part “By of this section is this: termination. The material party sending address, to the other at his last known at either days registered a notice mail before November least ten receipt demanded.” with return plain- date of October defendants mailed
Under following: tiffs TENANCY
“NOTICE OE TERMINATING TO KuIKEN AND GERRIT Ktjiken : Mrs. Gerrit “Kindly your tenancy take notice that as to land (4) buildings Thirty-three (33) Section Four Township, Iowa, Marion said land and Polk County, *18 property undersigned, will buildings being 1he 1, 1947. terminate on December
“Loyat Bland Garrett “Julian Garrett.” any manner complying notice in with No other written given plaintiffs, 562.7 was to and it is evident sections 562.6 and profess just did not do so. It did not that the one set out attempted tenancy next, end on March 1 but terminate the days before it on December and it was served ten required mailing. November in case of justified telling jury The that there court was tenancy proper had been no notice of termination of under sec tions 562.6 and 562.7. But we think there is a sufficient reason why plaintiffs upon are not entitled to recover the claim set out- II, they justi in .their Division under this record. While accepting quit upon them on fied the notice to served Febru ary 26, 1948, as a from removing constructive and in eviction premises reason, elementary for that it is the burden that upon They may was show them to did so. not have stay; may intended to it all been their intention at times fact, so remove. In there is some the record that evidence S., Tenant, such was the case. In 52 section C. J. Landlord 457, pages 173, 174, it is said:
“It is not of there itself sufficient are circum justify abandoning prop would stances which the tenant in erty, leave; wholly and that he does in fact other considerations if petad or in eviction(Italics induce him to leave there no supplied.) Eggers Paustian, supra.
See also The record here is en- tirely any showing barren of plaintiffs statement or solely because, because, quit removed of the notice to served February 26, them on any act because other constituting eviction, defendants or otherwise. constructive point properly The by exceptions raised defendants ways. instructions and other judgment
X. herein the verdict was not formally entered 31, 1950, although the clerk until March the verdict was returned on October 1948. The matter com- *19 date, tbe first-named a tbe court about ing to attention tbe pro Defendants assert was entered nunc tunc. tbat judgment They tbat court’s action would was error. concede tbe this present proper adoption the of the Rules of Civil before Selby McDonald, Iowa v. Procedure. See N.W. Surety Co., 114. 485; Cos Southern NW. rule 223 says But think that because that the clerk must judgment filed, enter a verdict when it is forthwith required. holding is The addition of the different italicized word changed Surety has not the law. We said in Cox v. Southern Co., supra, Selby approved McDonald, and followed in supra, duty judgment immediately that it was the clerk enter difference, no filing of verdict. There is and no change governing rule.- error, except
We find no in the submission of the claim II. made Division jury Since the most that could have allowed under the on item instructions was $150, sum of a reversal and remand of the case entire is not required. plaintiffs shall, thirty If within days from the time of filing opinion, reducing of this file this court a remittitur judgment by $150, thereupon with interest from October 1948, this affirmed, cause will stand with costs taxed three fourths against defendants and one against plaintiffs. fourth If such remittitur not filed within the time limited the cause will be reversed.—Affirmed on condition. JJ.,
Bliss, Garfield, Maettz, Oliver, and WeNnerstrum, concur. J., specially concurs.
MulroNey, Hays, J., part. takes no
Smith, J., sitting. (specially J. concurring)- MulroNey, concur all but —I I. I Division Judge would affirm ruling Prall’s on the motion ground 1o dismiss on the he stated: that the amended and sub- petition stituted contained substantially different averments. The first interpreted by was Judge Vincent as an action prosecution. malicious In second it specifically pleaded that the action was for breach of including contract breach of quiet the covenant enjoyment.