179 Iowa 1259 | Iowa | 1917
I. The parties were divorced on June 3, 1907. The appellant contends that the stipulation and the decree are not identical in provision; that the decree controls; that it remains effective until changed upon a direct application to modify; and that there has been no such application. Conceding this to be true, for the purposes of statement, we are confronted with the claim of appellant that the allowances made by the court and now complained of work a collateral and unauthorized modification of the decree. See Shaw v. McHenry, 52 Iowa 182; Reid v. Reid, 74 Iowa 681; Kinney v. Kinney, 150 Iowa 225; White v. White, 75 Iowa 218. In other words, that the
The stipulation and decree, properly treated with relation to each other/ fix the mutual obligations as follows:
(a) On the date when decree is granted, appellee is to be paid $6,000. It seems she was.'
(b) The mother is to have temporary custody and is to do all in her power to keep a named minor daughter in the public schools of West Waterloo until her graduation.
(c.) In view of the intention to give the minor child a college education, it is agreed that the college; or university to which she shall be sent is subject to the further agreement of the parties and of the minor child. ■
(d) The father is required to pay to the mother for-the support and lodging of the minor child $15 a month, payable monthly in advance, to be paid as long as the minor child remains in the custody of the plaintiff, and in no event later than after she attains her majority. : This payment was made.
(e) The father is required to provide the minor child with proper and suitable clothing. , : .. . •
(f) The father is to pay all other necessary and proper expenses in caring for, maintaining -and educating this child. • .
It appears that the father paid at the rate of $5 a month an additional sum, amounting to $105/' between September, 1909, and until the child reached -her majority. In that same period, he paid for dresses, shoes, etc., amounts aggregating $102.
The ultimate contention of thé appellant is-that, considering the $6,000 cash paid, and the said other payments, he has done all that the stipulation and decree obligated
The child was graduated from the high school in the city of Waterloo in June, 1909, at the age of 16. Appellee moved from Waterloo to Cedar Falls, her former home, and took her daughter with her. There the child entered the State Teachers’ College in that city. 1
IV. The district court found that there was due the plaintiff the sum of $1,577.79. Against this, it allowed a credit for $528. To make up the allowance, items aggregating $18 were included, for which expenditure was made after the daughter had attained her majority. This was unauthorized. See 8 no ver v. Snover, 13 N. J. Eq. 261.
In an amendment to petition, the plaintiff admits that, for the two years in question, the defendant paid for the support and maintenance of the daughter $20 a month, or $480. It is admitted that a payment for extras, aggregating $102, was made. Deducting the $18 from the allowance made, and deducting from the remainder the sum of $582, which is the aggregate of said $480 and $102, and we find that, upon sustaining the theory of the trial court up to this point, the judgment should have been for $967.79, instead of $1,049.79.
While, as said, we are making no pronouncement upon the allowance of interest on the law side, we And the state of the law upon the point and on that side to be such that," if the allowance here made is to be sustained, warrant therefor must be found in some rule or practice that prevails in the chancery court, and what we are determining is whether there is a rule or practice under which the interest allowance here made can or should be upheld.
In this case, the petition seeks judgment for a sum stated, and prays “such other and further relief as may be deemed equitable in the premises.” An amendment to petition makes a deduction from the amount thus claimed, and prays judgment for a stated sum and for costs. As to what may be allowed in that state of the pleadings,
“In general, a court will not decree interest on a balance unless it is specially asked for in the bill, but this rule applied to interest due at the time the bill was filed. Where the interest accrues subsequently, it is the practice of the court, upon further directions, to order the interest to be computed, although there is no prayer in the bill to that effect.”
And see Turner v. Turner, 1 Jacob & Walker 39, 43.
In Sentell v. Hewitt, (La.) 22 So. 242, it was held that legal interest due was properly • allowed, though not claimed in the prayer, where it was claimed in the body of a reconventional demand made in a chancery court. In Talbott v. Manard, (Tenn.) 59 S. W. 340, defendant agreed to procure a loan for complainant for a stated commissio’n, and a trust deed Avas draAvn for the principal and commission. Defendant, without the knoAvledge of the complainant, made the loan out of his oavu funds, and the commission was carried fonvard into a renewal note. Finally, on request of complainant, defendant took an absolute deed to the property in discharge of the renewal note, and it was held that, in an action to set aside the deed, complainant was, under prayer for general relief, entitled to recover the commission, Avith interest. In Slaughter v. Coke County, (Tex.) 79 S. W. 863, a chancery suit, it Avas decided that interest might be alloAved Avithout prayer therefor on sums ,paid a county, Avhere the decree set aside a contract for Jthe sale of land by that county for fraud, in that the agent ,who brought about the sale to the predecessor of the defendant in title, Avas in fact the agent of the purchaser. I In a suit against a trustee by the cestui, the court may, on
We are of opinion that whether the. allowance of interest made can be upheld depends upon whether substantial justice and the giving of complete relief under general equitable principles demand such allowance. This is not a case wherein one bound by the clear terms of a decree to a specified maintenance of his minor child contumaciously refuses to obey the decree, and thereby forces the mother of the child either to advance the moneys necessary to support and educate the child or to leave it without support and education. The suit here was brought after the mother had made the necessary expenditures, and a recovery might well have been had on the law side as for an ordinary de
We disclaim any intention to decide at what point interest should be exacted where the same is prayed for, and where interest on something is due earlier than the beginning of the action. We here deal with a case where interest was not expressly prayed, and where no interest should be allowed before the time when the action was be
Limiting ourselves to the pleadings, and the record in this particular case, we find that plaintiff should have decree for $967.79, with interest thereon at 6 per cent per annum from the day on which this opinion is filed. Of the costs taxed in this court, the appellant should pay two thirds, and the appellee one third.
As thus modified, the decree below is — Affirmed.