81 Iowa 408 | Iowa | 1890
Lead Opinion
The defendant, by its original answer, made no claim to the notes, and averred a readiness to deliver them to the person to whom they belonged, and alleged that it had deposited the same with the clerk of the district court. It was averred in the petition that the plaintiff demanded
It will thus be seen that the plaintiff averred in the petition that the notes “ were valuable,” and demanded judgment against defendant for the amount of the notes in its hands over and above what was sufficient to pay the claim of the bank. In addition to the averments of the answer above referred to, there was a general denial •of “each and every other allegation in said petition •contained.” There was no admission of the value of the notes. The cause went to trial, and the main, contention between the parties was whether the bank had wrongfully converted the balance of the notes by refusing to account for the same, and by a refusal to deliver them to the plaintiff. The evidence was closed, and the •cause submitted to the court. At that stage of the case the evidence showed a wrongful conversion. There can be no question upon that point. There was no bad faith shown by the bank, but it had refused upon
The cause was submitted to the court on the fifth day of December, 1888. At that time the court stated that the plaintiff was entitled to recover the face value of the notes in question, and that the question as to whether the plaintiff was entitled to a judgment for the one hundred and seven dollars claimed by the Grand Detour Plow Company would be taken under advisement. On the next day, the defendant made an application to be permitted to introduce additional evidence relative to the value of the notes. It was shovra that the evidence was omitted by oversight and mistake. It was objected by the plaintiff that the motion to reopen the case was filed too late, because it had been finally submitted. The court sustained the' motion, and further evidence was taken which shows without conflict that the notes in controversy were of no real value at any time. The order sustaining the motion was as follows: “The motion for the reopening of the case is considered, and the court makes its ruling as a part of the records in this case, in addition to the journal entry. The chronological statement as to the disposition of the case is in the main true, — that it had been submitted to the court, and the court had madeits. announcement, saving the consideration as to the one question. The showing made of oversight is amply sufficient to warrant the introduction of additional testimony, and the only hesitancy heretofore has been the fact that it has been the opinion of the court that the same was not material to the issue tendered in this case. The case being an equitable action tried to the court, all the matters should be entered of record. The court will permit the examination of the witness Hoops touching the value of the notes under the following terms.” [The court then stated certain rules under which the evidence should be given.] We think that
This disposition of the case renders it unnecessary to determine whether an amendment to the answer which was filed after the additional evidence was introduced should have been stricken from the files. The amendment was wholly unnecessary. It presented the question that the notes were of no value. As we have seen, that issue was made by the original answer. Some question is made by counsel for appellee as to whether the record was preserved so as to present the appeal to this court. It appears to us that the objection made by counsel is not well taken. The judgment of the district court is‘reversed.
Dissenting Opinion
(dissenting). — I cannot give my assent to the rule announced in the second division of the majority opinion, because I believe it to be a grave error, and in plain disregard of a provision of the statute. Code, sec. 2799. The ruling reaches beyond the case at bar, and affects the general practice of the state. I differ radically with that opinion as to what constitutes the final submission of a cause. I do not understand the opinion to claim but that, if the cause had been finally submitted before the application to introduce additional testimony, it would have been error to permit it. The opinion says: ‘‘It is true the statute contemplates that the additional testimony should be offered before the cause is finally submitted.” A legitimate inquiry, then, is, when is a cause finally submitted? I think it is when sub’mitted to a jury or the court for final verdict, or judgment; and that had been done in this case, and, so far as this appeal is concerned, the judgment announced. But the majority opinion says: “The submission cannot be said to be
It would seem strange under the statute in question, after the verdict of a jury, if the court, upon such an application, should set aside a verdict or submission, and permit the taking of further testimony ; and it would be equally as sound an interpretation of the law as in this case; for the section limits it to a submission to a “court or jury,” and makes no distinction as to the kind of proceeding, whether equitable or ordinary, and it is a part of the Code of Civil Practice. The fact that embarrassment might result could not, in my judgment, influence the determination or fact of its being a final submission. The majority opinion cites, as precedents for its holding, the cases of Baker v. Jamison, and Eggspieller r. Nockles. In the first caso cited, the court did not cite the statute as authority for its holding, but it could have done so with equal propriety; aud the case is not authority for any view of the statute, for it makes no reference to it. The latter case cited does hold to the rule of the majority opinion barring one fact, that the holding is not based on the statute. It is manifestly certain that the holding in that case, as well as the comments in the case of Baker v. Jamison, were made without the attention of the court being called to the section in question, and that the apparent conflict is the result of a mere inadvertence. The court would surely never have attempted a construction of a statute or based a ruling on it without a reference to it. Neither opinion has a remote, reference to any statute as a basis for the holding. I do not consider either case as’an authority upon the question, and I do not think the court should hesitate to follow the language of the statute, without reference to the cases cited. The district court seems to have admitted