Upload 100 files

iowa/10593527.json

@@ -0,0 +1 @@
+"{\"id\": \"10593527\", \"name\": \"Ronald KING, Individually, and as Class Representative of All Participants in Armstrong's Inc.'s Employee Stock Ownership Program and Ronald King, as Chairman of the Employees' Committee in the Armstrong's Inc. Bankruptcy, Appellees, v. Esther Y. ARMSTRONG, Rodney W. Strang, Maxine Schoonover and Brenton National Bank of Des Moines, Fiduciaries of the Estate of Robert C. Armstrong, Defendants, and Molly Bredl, Appellant\", \"name_abbreviation\": \"King v. Armstrong\", \"decision_date\": \"1994-06-22\", \"docket_number\": \"No. 93-555\", \"first_page\": \"336\", \"last_page\": \"339\", \"citations\": \"518 N.W.2d 336\", \"volume\": \"518\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:11:28.948283+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by HARRIS, P.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.\", \"parties\": \"Ronald KING, Individually, and as Class Representative of All Participants in Armstrong\\u2019s Inc.\\u2019s Employee Stock Ownership Program and Ronald King, as Chairman of the Employees\\u2019 Committee in the Armstrong\\u2019s Inc. Bankruptcy, Appellees, v. Esther Y. ARMSTRONG, Rodney W. Strang, Maxine Schoonover and Brenton National Bank of Des Moines, Fiduciaries of the Estate of Robert C. Armstrong, Defendants, and Molly Bredl, Appellant.\", \"head_matter\": \"Ronald KING, Individually, and as Class Representative of All Participants in Armstrong\\u2019s Inc.\\u2019s Employee Stock Ownership Program and Ronald King, as Chairman of the Employees\\u2019 Committee in the Armstrong\\u2019s Inc. Bankruptcy, Appellees, v. Esther Y. ARMSTRONG, Rodney W. Strang, Maxine Schoonover and Brenton National Bank of Des Moines, Fiduciaries of the Estate of Robert C. Armstrong, Defendants, and Molly Bredl, Appellant.\\nNo. 93-555.\\nSupreme Court of Iowa.\\nJune 22, 1994.\\nPeter C. Riley of Tom Riley Law Firm, P.C., Cedar Rapids, for appellant.\\nMarty A. Hagge of John C. Wagner Law Offices, P.C., Cedar Rapids, for appellees.\\nConsidered by HARRIS, P.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.\", \"word_count\": \"1687\", \"char_count\": \"10349\", \"text\": \"PER CURIAM.\\nAt issue in the present case is whether the district court abused its discretion in awarding the Wagner Law Firm attorney fees pursuant to a fifty percent contingency fee contract between the law firm and the employees of Armstrong's Inc. following the law firm's representation of the employees in a class action suit against Armstrong's. We find no abuse of discretion, and we affirm the judgment of the district court.\\nEmployees of Armstrong's Inc. filed a claim in probate court against the estate of Robert C. Armstrong, alleging that Robert Armstrong breached his fiduciary duty when he sold his stock in Armstrong's Inc. to the employee stock ownership program (ESOP) for more than fair market value. The claim further alleged that Armstrong used his position as a director and trustee of the employee pension plan to insist that ESOP buy out his shares of stock. Because Armstrong's Inc. was in bankruptcy at the time, the claim was filed with the bankruptcy court. The bankruptcy court designated the employees' committee as the official class representative to bring any class action claims against Armstrong's estate.\\nThe Wagner Law Firm first entered discussions with the employees' committee in late December 1991, regarding representation of the class against the Armstrong estate. At that time, numerous other law firms had declined to represent the class, most stating that they did not have the staff and financial means to properly conduct such a complex case. On January 5,1992, the Wagner Law Firm decided that a fifty percent contingency fee agreement was reasonable, based on the complexity of the case and the great risk that no recovery would be obtained. Wagner informed the committee that any fee requested would be subject to court approval. Following a closed door meeting, the employees' committee voted to affirm the contingency fee. On January 31, 1992, the Wagner Law Firm filed an appearance on behalf of King.\\nOn June 23, 1992, a tentative settlement agreement was reached in the amount of $65,000, although the employees' committee had originally thought their claim might bring several million dollars. The Wagner firm and counsel for the estate subsequently prepared and filed the documents necessary to obtain the court's approval, including the application for certification as a class action, the motion to compromise claims and the proper notices. The notice informed the members of the class that the class representative had agreed to a proposed settlement against the Armstrong estate for $65,000. The notice further informed the class mem-' bers that the Wagner firm sought a fifty percent fee pursuant to the agreement entered into between the employees' committee and the law firm.\\nOn September 15, 1992, King filed a motion to compromise claims in the amount of $65,000. Copies of the motion and notice were mailed to all known members of the class. No objections to the compromise of claims were filed. The district court granted the motion to compromise. On December 8, 1992, the Wagner firm filed an application for attorney fees pursuant to the fifty percent contingency fee agreement. The notice of hearing on the fees application noted that the fees were sought pursuant to a fee agreement and that any such fees awarded would be subject to the approval of the court.\\nThe intervenor, Molly Bredl, subsequently filed an objection to the application for attorney fees. At the hearing, the Wagner firm introduced an itemized billing statement showing it had expended time totaling $21,-442 with expected costs of $1985 to distribute monies to the class members. The firm also claimed it had advanced costs and expenses of $5165.10. Bredl's objection was based on her belief that the original lawsuit was frivolous and that no attorney fees should be awarded. Bredl also complained that the amount of fees requested was unreasonable since the amount of time spent by the Wagner firm on the case was minimal. The district court ruled that the Wagner firm was entitled to the fees as agreed.\\nBredl subsequently filed an Iowa Rule of Civil Procedure 179(b) motion, arguing that the district court did not consider the application of Iowa Rule of Civil Procedure 42.-16(e) and Disciplinary Rule 2-106(B). The district court, upon consideration of these rules, overruled the motion. Bredl has appealed.\\nThe first issue to be addressed is what standard of review is to be used by a reviewing court when considering contingency fee agreements. Bredl claims that because the district court failed to make specific findings regarding rule 42.16(e) the case should be reviewed de novo. We disagree.\\nAlthough there are no Iowa cases specifically addressing the standard of review for cases involving contingency fees in class action litigation, we have in other contexts reviewed the allowance of attorney fees under an abuse-of-discretion standard. Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990); Green v. Iowa Dist. Court, 415 N.W.2d 606, 608 (Iowa 1987). In class action cases, this court has also applied the abuse of discretion standard when reviewing rulings of the district court. See Martin v. Amana Refrigeration, Inc., 435 N.W.2d 364, 367 (Iowa 1989); Vignaroli v. Blue Cross of Iowa, 360 N.W.2d 741, 743 (Iowa 1985). Iowa courts have recognized that the district court is an expert on the issue of reasonable attorney fees. Landals, 454 N.W.2d at 897. It therefore appears that when reviewing claims for attorney fees pursuant to a contingency fee agreement in a class action lawsuit, we will review attorney fee awards under an abuse of discretion standard.\\nThe thrust of Bredl's argument is that Wagner's claim for attorney fees under the contingency agreement is unreasonable in light of the factors set forth in rule 42.-16(e). In determining the appropriateness of attorney fees in a class action, rule 42.16(e) provides:\\ne. In determining the amount of attorney's fees for a prevailing class the court shall consider the following factors:\\n(1) The time and effort expended by the attorney in the litigation, including the nature, extent, and quality of the services rendered;\\n(2) Results achieved and benefits conferred upon the class;\\n(3) The magnitude, complexity, and uniqueness of the litigation;\\n(4) The contingent nature of success;\\n(5) In cases awarding attorney's fees and litigation expenses under subdivision \\\"d\\\" of the vindication of an important public interest, the economic impact on the party against whom the award is made; and\\n(6) Appropriate criteria in the Iowa Code of Professional Responsibility for Lawyers.\\nIn conjunction with rule 42.16, Disciplinary Rule 2-106(B) of the Iowa Code of Professional Responsibility for Lawyers also provides guidelines for attorney fees. DR 2-106(B) provides that a fee is clearly excessive if, after a review of the facts, \\\"a lawyer of prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.\\\" The rule sets forth a number of factors to consider, including:\\n(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.\\n(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.\\n(3) The fee customarily charged in the locality for similar legal services.\\n(4) The amount involved and the results obtained.\\n(5) The limitations imposed by the client or by the circumstances.\\n(6) The nature and length of the professional relationship with the client.\\n(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.\\n(8) Whether the fee is fixed or contingent.\\nIn its initial ruling ordering attorney fees, the district court noted that the class had been unable to obtain an attorney to represent them. The district court noted that, when the Wagner firm agreed to represent the class, it was required to advance all prelitigation costs since the employees' committee did not have any funds set aside to conduct the litigation. The court also pointed out that, although the fee was higher than normal, the Wagner firm noted that any attorney fees award would be subject to court approval. Because the employees' committee was free to negotiate with the Wagner firm at arms' length, the district court ruled that the fee contract was reasonable.\\nIn its ruling on Bredl's rule 179(b) motion, the district court provided a more in-depth analysis, of its reasons for approving the fee contract. The district court noted that the case was about to be dismissed by the court when the Wagner firm agreed to represent the class. Although Bredl claimed that the class estimated they might recover over $2 million from the lawsuit, the district court opined that the class had in fact little chance of success. The district court noted the complexity of the case, especially the coordination necessary between the district court and the bankruptcy court, and the large size of the class. The district court also noted that the Wagner firm agreed to advance all costs of litigation despite the knowledge that there was a strong likelihood they would recover nothing. Citing rule 42.16(e) and DR 2-106(B), the district court ruled that the contingency fee agreement was reasonable under the facts.\\nWe hold that the district court was properly guided by rule 42.16(e) and DR 2-106(B) and did not abuse its discretion in awarding the Wagner Law Firm attorney fees pursuant to the contingency fee agreement. We affirm the district court's award of attorney fees.\\nAFFIRMED.\"}"

iowa/10597585.json

@@ -0,0 +1 @@
+"{\"id\": \"10597585\", \"name\": \"Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee\", \"name_abbreviation\": \"Wilson v. Hayes\", \"decision_date\": \"1990-12-19\", \"docket_number\": \"No. 89-252\", \"first_page\": \"250\", \"last_page\": \"268\", \"citations\": \"464 N.W.2d 250\", \"volume\": \"464\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:14:34.759117+00:00\", \"provenance\": \"CAP\", \"judges\": \"NEUMAN, J., takes no part.\", \"parties\": \"Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee.\", \"head_matter\": \"Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee.\\nNo. 89-252.\\nSupreme Court of Iowa.\\nDec. 19, 1990.\\nDavid A. Hirsch of Beckman Law Offices, Burlington, for appellants.\\nD.G. Ribble and Wilford H. Stone of Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee.\", \"word_count\": \"10489\", \"char_count\": \"63755\", \"text\": \"LAYORATO, Justice.\\nTwo doctors brought suit against an attorney alleging malicious prosecution and abuse of process. The claims arose out of a medical malpractice action that the attorney brought against the doctors on behalf of his client. The client claimed that the doctors' negligence resulted in his wife's death. The underlying malpractice suit was eventually disposed of without trial, and this action followed.\\nAfter a bench trial the district court dismissed the doctors' petition. The court found that the doctors had not established either claim. We affirm.\\nI. Background Facts and Proceedings.\\nThe district court made detailed findings of facts, all of which we find were supported by the evidence. These facts include the following.\\nA. The Principals.\\nDr. Michael Wilson, an orthopedic surgeon, was in private practice in Burlington, Iowa, at the time the medical malpractice action began. He was a shareholder and an employee of Orthopedic & Reconstructive Surgery Associates, P.C. He practiced in Burlington from 1979 to 1985.\\nMichael graduated from the University of Iowa Medical School in 1975. After completing medical school, Michael entered a four-year orthopedic residency at Mayo Clinic. After Michael finished his residency, he relocated to Burlington where he entered private practice.\\nDr. Kathleen Wilson, an internist and a gastroenterologist, was also in private practice in Burlington when the medical malpractice suit began. Kathleen was a sole practitioner. She is also a graduate of the University of Iowa Medical School. Kathleen completed a three-year residency in internal medicine at Mayo Clinic. Following the residency, Kathleen completed a two-year fellowship in gastroenterology at Mayo. She then moved to Burlington and began her private practice.\\nMichael and Kathleen are married and were married at the time the medical malpractice suits began. Although the Wil-sons had separate practices, they did refer patients to each other.\\nJames P. Hayes is an Iowa City attorney. Hayes represented \\u00d1amen Rashid in the medical malpractice action that \\u00d1amen brought against the Wilsons.\\n\\u00d1amen is a resident of Fort Madison. \\u00d1amen brought the medical malpractice action against the Wilsons as the executor of the estate of his deceased wife, Ellen. Before \\u00d1amen brought the suit, he was Kathleen's patient.\\nEllen Rashid had never been Kathleen's patient. But Ellen had been Michael's patient from December 1982 to January 1983.\\nThe Rashids had two adult children, Terry and Carol. Both children consulted with Hayes and \\u00d1amen about the medical malpractice suit.\\nB. The medical malpractice lawsuit.\\nOn July 8, 1983, Ellen was involved in an automobile accident. She was taken from the scene of the accident to the emergency room at Fort Madison Community Hospital. At the hospital Ellen complained of pain in her right ankle as well as general body aches. Dr. James Kannenburg examined and treated Ellen in the emergency room. The emergency room medical records note that Ellen had been in an automobile accident and that she had possibly hit her head and lost consciousness.\\nX-rays taken of Ellen's ankle showed no evidence of a fracture, dislocation, or any pathology involving the bones of the ankle. Ellen was released from the hospital shortly after her arrival with no significant medical instructions.\\nEven though the hospital x-rays showed no sign of significant injury, Ellen still experienced pain and discomfort in her right ankle from July 8 to July 12. Because of this pain, Ellen tried to make an appointment with Michael on July 12. A staff member at Michael's office, however, told Ellen that she needed a referral from another doctor. \\u00d1amen called Kathleen's office for a referral. Kathleen's nurse suggested that \\u00d1amen take Ellen to the Burlington Medical Center emergency room for treatment.\\nOn July 13 \\u00d1amen took Ellen to the Burlington Medical Center. Emergency records at the medical center list \\\"K. Wilson\\\" as Ellen's family physician. These records also note that Ellen had been in a \\\"2-car-accident 7-8-83\\\" and was experiencing a headache together with pain in her right leg, both arms, neck, and right hand.\\nAt the hospital Ellen was examined and treated by the emergency room physician, Dr. Gundrum. Dr. Gundrum ordered x-rays and diagnosed a contusion of the right ankle, elbow, and base of the cervical spine. Apparently no special treatment was ordered, and Ellen was released.\\nOn the same day of this hospital visit, Ellen and \\u00d1amen went to Kathleen's office. Neither Ellen nor \\u00d1amen had a scheduled appointment with Kathleen that day.\\nBecause \\u00d1amen was Kathleen's patient, she agreed to see them. They went to Kathleen's office where \\u00d1amen and Ellen explained Ellen's injuries. \\u00d1amen and Ellen also relayed the information that both emergency room physicians had told them. The couple explained that Ellen had tried to get an appointment with Michael, but she needed a referral.\\nKathleen did not have Ellen's hospital x-rays, but she could see that Ellen's ankle was swollen. Kathleen agreed to call Michael's office. Michael's office then made an appointment for Ellen that afternoon. As \\u00d1amen and Ellen were leaving Kathleen's office, \\u00d1amen wanted to pay for the visit. He was told there was no charge, but he insisted on paying $17. This amount was less than the charge for a normal office visit.\\nMichael saw Ellen the same day. He reviewed Ellen's hospital x-rays. He also took a medical history. Michael's records note that Ellen's chief complaint involved pain and swelling in her right ankle. Michael told Ellen this pain would probably subside in two to three days and suggested an ace wrap on the ankle to control the swelling. No other treatment or medications were suggested. Because Kathleen was the referring physician, Michael's office sent her a copy of his report.\\nOn July 27 Ellen suffered a ruptured congenital cerebral aneurysm. Emergency surgery was performed at University Hospitals in Iowa City to repair the rupture. Ellen died on August 5 due to complications following surgery.\\nTwo months after Ellen's death, \\u00d1amen began discussing a possible medical malpractice lawsuit. He contacted a few local attorneys, but due to conflicts \\u00d1amen was referred to Hayes.\\n\\u00d1amen and his daughter, Carol, met with Hayes on December 20 to discuss a possible lawsuit. Hayes' notes of this first meeting indicate that since Ellen's automobile accident in July she complained of headaches and that she was getting worse. According to the notes, Ellen complained of these headaches to both Kathleen and Michael. Hayes had \\u00d1amen sign patient waiver forms. Hayes subsequently requested Ellen's medical records from Michael, Kathleen, Fort Madison Community Hospital, Burlington Medical Center, University of Iowa Hospitals and Clinics, and Dr. Kannenburg.\\nOn June 1984 Hayes met with \\u00d1amen and Namen's son, Terry. At this meeting, father and son told Hayes that Ellen's head was hurting on the day of the car accident. They told Hayes that \\u00d1amen had called Kathleen's office on July 12 because Ellen was experiencing terrible headaches. They said Kathleen's nurse had referred them to the hospital for x-rays. They also told Hayes that Ellen had specifically told Michael about the headaches but that Michael said there was nothing wrong with her. In his summary of the meeting, Hayes noted that the emergency room records of July 13 showed that Ellen complained of a headache.\\nFollowing this meeting Hayes wrote to Dr. Jon Brillman, a board certified neurologist in Pennsylvania. Hayes had worked with Brillman on previous medical malpractice cases. In his letter Hayes summarized the facts as related to him by \\u00d1amen and his children. Hayes also sent copies of Ellen's medical records. Hayes asked Brill-man to determine whether \\\"the orthopedist failed to deliver to Ellen Rashid the expected standard of care under the circumstances.\\\" In making this determination, Brillman was asked to assume the facts as stated by the Rashids as true.\\nBrillman called Hayes with his opinion on August 1, 1984. Brillman based his opinion on the following assumptions: \\\"an automobile accident, a 'black-out,' amnesia, and a primary complaint of severe headaches on the following days.\\\" It was Brillman's opinion that an orthopedist\\ncould not be faulted for not diagnosing or suspecting the aneurysm right after the accident, but if Ellen continued to complain of headaches a physician and an orthopedist presented with such history and complaints should have referred her to a neurologist or ordered a CAT scan, and a failure to do so would constitute a failure to meet the expected standard of care.\\nBrillman theorized that Ellen had suffered a small rupture of the aneurysm that had caused her to black out and have the accident. Because of this rupture, Brill-man thought there was early bleeding that had healed somewhat but had caused the headaches. According to Brillman there probably was a rerupture of the aneurysm on July 27 that ultimately led to Ellen's death. Brillman believed that an investigation of the headaches on July 13 could very well have prevented the rerupture of the aneurysm on July 27.\\nBrillman agreed to work with Hayes as an expert witness on the case.\\nAfter this call, Hayes wrote to \\u00d1amen and told him what Brillman had said. Hayes then met with \\u00d1amen and his chil dren on August 15, 1984. At this meeting they decided to sue Michael and Kathleen for malpractice.\\nOn October 31 Hayes sent \\u00d1amen a copy of the proposed petition. In his letter to \\u00d1amen, Hayes asked \\u00d1amen to review the petition and to call him with questions, suggestions or changes. The petition was filed on January 24, 1985.\\nThe Wilsons were served on January 25, a Friday. Over the weekend they discussed the lawsuit at length and its implications for their medical practices and their future. By Monday they had decided to end their private practices and enter the military. They made this decision believing that in the military they could practice medicine without fear of personal suits for malpractice. Eventually both did enter the military.\\nKathleen filed an answer to the petition on February 7. In it she specifically denied a doctor-patient relationship between Ellen and her. Kathleen's answer also alleged that she never examined, treated, or consulted with Ellen. The answer asserted that Kathleen's only connection with Ellen was to set up an appointment with Michael.\\nAfter Kathleen learned that Dr. Brillman was scheduled to be an expert witness, she telephoned him on February 25. Brillman described Kathleen as being \\\"very upset.\\\" He in turn was upset by her call. Kathleen described \\u00d1amen to Brillman as a litigious person who had suffered from emotional problems. She also gave Brillman the details about Ellen's visits to her office and to Michael's office. Kathleen emphasized that Ellen had only complained about her sprained ankle and had never made any complaints about headaches. Brillman responded that if the facts were as she said, no malpractice had been committed and he would not testify.\\nBrillman's opinion relied heavily on Ellen's alleged complaints of severe and unremitting headaches. Because of Kathleen's call, Brillman reviewed the materials he had received from Hayes. As a result of this review Brillman felt that the records tended to support Kathleen's claim that there had been no significant complaints of headaches. So he decided not to testify.\\nStill incensed about the lawsuit, Kathleen wrote a letter to Representative Del Stromer, the minority whip of the Iowa Legislature. Her letter detailed the facts about the lawsuit and also disclosed certain medical facts about Namen's mental illness. Kathleen asked Stromer to change Iowa law and make it easier for doctors to sue attorneys for malicious prosecution and abuse of process.\\nThe letter triggered a call to Hayes from William J. Wimmer, the lobbyist for the Association of Iowa Trial Lawyers. Wim-mer also sent Hayes a copy of Kathleen's letter to Stromer. After visiting with Wim-mer, Hayes realized he was a potential defendant in a suit by the Wilsons.\\nOn March 13 Brillman telephoned Hayes with the news: he would not testify. Brill-man told Hayes that after reviewing the records, he concluded there was no evidence of malpractice by the Wilsons. Apparently, Brillman had not reviewed the medical records before giving Hayes his initial opinion by telephone on August 1, 1984. Brillman's decision not to testify was based on a lack of documentation that headaches were a prominent part of Ellen's initial complaints. Without the complaint of headaches, Brillman felt there was no basis for his opinion of an aneurysmal rupture at the time of the accident. The next day Brillman wrote Hayes, documenting what he had told Hayes the day before.\\nOn March 21 Kathleen moved for summary judgment. Kathleen's motion was based solely on a claim that no doctor-patient relationship existed between Ellen and her. Hayes forwarded a copy of the motion to \\u00d1amen. After reviewing the motion, \\u00d1amen wrote Hayes and again recounted the events. \\u00d1amen swore that his version of the facts was true and volunteered to take a lie detector test.\\nOn March 25 Kathleen's attorney wrote to Hayes. The attorney suggested an early deposition of Brillman because the Wil-sons felt Brillman would not support a claim of malpractice against either of them.\\nOn March 28 Hayes replied to this letter. Hayes told the attorney the parties should be deposed before the expert so the expert could have the defendants' versions of the facts.\\nOn the same day Hayes wrote Brillman asking for his opinion based on two different sets of facts. Under one set of facts Brillman was asked to assume Ellen had complained to Kathleen and Michael about a violent, unremitting headache. Under the other set of facts Brillman was asked to assume no such complaint had been made.\\nOn March 29 Brillman called Hayes. Brillman told Hayes that Kathleen had called him two days before, \\\"virtually begging him not to hurt her.\\\" Brillman told Hayes he would not testify but he would help Hayes find another expert. Brillman suggested Dr. Arthur Taub of Yale University.\\nSeveral days later Brillman wrote to Hayes. Brillman related that the medical records showed no sign of an initial aneu-rysmal rupture and revealed no initial chief complaint of a headache. Based on these records Brillman concluded the Wilsons had committed no negligence. Responding to Hayes' request to assume Ellen's chief complaint to the Wilsons was one of a violent, unremitting headache, Brillman reached a different conclusion. Under this set of facts, Brillman believed the Wilsons should have undertaken further investigation as to the cause of the headache.\\nOn April 5 Hayes filed a resistance to Kathleen's motion for summary judgment. He supported the resistance with affidavits from Rashid and his daughter, Carol. The gist of the two affidavits was that Ellen had suffered severe headaches which she complained of to the Wilsons. Hayes also attached the July 13, 1983, emergency room records listing Kathleen as Ellen's physician.\\nKathleen filed additional affidavits in support of her motion for summary judgment. These included one from her office staff and several from personnel at the Burlington Medical Center. In substance these affidavits denied any doctor-patient relationship between Kathleen and Ellen. They also denied that Kathleen had done anything for Ellen except to make an appointment with Michael. Finally, the affidavits denied that Ellen had ever complained of headaches either to the medical center or to Kathleen and her staff. In her own affidavit Kathleen admitted that \\u00d1a-men had paid $17 for the July 13, 1983, office call. However, she asserted that -\\u00d1amen paid this amount despite the fact that he had been told there was no charge for the call.\\nThe motion for summary judgment was heard on April 22. Several weeks later \\u00d1amen, Kathleen, and Michael were deposed. Except as to two points, Namen's deposition virtually corroborated Kathleen's account of the July 13, 1983, office visit: Kathleen's only involvement was to make an appointment for Ellen to see Michael at Namen's request. \\u00d1amen conceded that Kathleen had not examined Ellen, had not questioned Ellen about her symptoms, had not seen Ellen's x-rays, and had not treated Ellen.\\nIn contrast to Kathleen's account, \\u00d1a-men did testify that Ellen had complained to Kathleen that she was still having terrible headaches. In addition, Namen's version of the $17 payment also differed. According to \\u00d1amen he asked the receptionist how much the bill was and she presented him with a bill for $17 which he paid.\\nKathleen attached portions of Namen's deposition covering these matters to her motion for summary judgment. Hayes requested additional time to respond to Kathleen's motion and this request was granted. Hayes thereafter supplemented the resistance with several affidavits.\\nKathleen's motion for summary judgment was sustained on June 17. The essence of the ruling was that no doctor-patient relationship had existed between Kathleen and Ellen. So, according to the ruling, Kathleen \\\"had no relevant duty to Ellen and accordingly could not be liable to her (or to her personal representative) for medical malpractice.\\\" In reaching that conclusion the court relied heavily on Na-men's admissions in his deposition.\\nHayes forwarded the ruling to \\u00d1amen and suggested that they should get together to discuss a possible appeal.\\nWhen Hayes and \\u00d1amen left the depositions, the two talked about the possibility of settlement. They also talked about releases for everyone, including Hayes, as part of the settlement. \\u00d1amen was agreeable to the release idea.\\nShortly after the depositions and before the summary judgment ruling, Hayes had begun settlement negotiations with the Wilsons' attorneys. The Wilsons were amenable to releasing \\u00d1amen but not Hayes. The Wilsons' attorney gave Hayes this counterproposal. In turn, Hayes discussed the counterproposal with the Rash-ids.\\nBy this time \\u00d1amen had become incensed about Kathleen's letter to Del Stromer. \\u00d1amen wanted to sue her for disclosing confidential medical information about him to Stromer. After that, \\u00d1amen was never amenable to settlement.\\nHayes met with the Rashids on June 25 to talk about appealing the summary judgment ruling. \\u00d1amen wanted to appeal. Hayes then appealed and told \\u00d1amen that he had done so.\\nAfter Brillman refused to testify, Hayes set out to find a new expert witness. Hayes contacted at least five doctors. In general, these doctors evaluated the case the same. They all noted the discrepancy between Namen's version and the Wilsons' version. The doctors' opinions generally coincided with Brillman's: if the Wilsons' version was true there was no malpractice; if Namen's version was true, there was.\\nBecause of the problems he was encountering with the experts, Hayes began to realize that a trial would probably be unsuccessful. Hayes tried to convince \\u00d1a-men of this and tried to convince him to settle. \\u00d1amen refused to budge.\\nIn an August 29 letter to \\u00d1amen and Namen's children, Hayes told them that the Wilsons' attorneys had made several inquiries about a release and dismissal of the case. Hayes urged settlement because of the difficulty he was having with the experts. He told the Rashids that they should consider this option as \\\"the best alternative at the present time.\\\" In this letter Hayes did not refer to his own release.\\nIn response \\u00d1amen wrote Hayes and suggested that a certain doctor be contacted as an expert. \\u00d1amen also told Hayes he would not dismiss the suit.\\nThe Wilsons' attorneys made several more attempts to settle the suit to no avail.\\nFinally, in February 1986, Hayes wrote to \\u00d1amen suggesting two alternatives: Hayes would assist him in either dismissing the case or in finding him another attorney. In a return letter, \\u00d1amen said he would never dismiss the case and that he expected Hayes to represent him at trial or to find him another attorney.\\nIn response, Hayes wrote \\u00d1amen in April requesting payment of $1878 for expenses. Hayes also indicated that pursuing the case to trial would cost \\u00d1amen $10,000 to $15,000 and that his firm would require \\u00d1amen to advance $12,500 for future expenses. Finally, Hayes told \\u00d1amen that if this arrangement was not satisfactory, he intended to withdraw because of the substantial difference between the two concerning the merits of the case.\\n\\u00d1amen responded, insisting that Hayes continue with the case. \\u00d1amen also made some vague threats as to what would happen if Hayes withdrew.\\nIn May Hayes filed a motion to withdraw in Michael's case. Hayes cited the differences between \\u00d1amen and himself. Hayes also asserted that he had asked \\u00d1amen to hire other counsel but \\u00d1amen had failed to do so.\\nFollowing a hearing, the court granted Hayes' motion to withdraw, which was formally approved by a written order on June 12, 1986.\\n\\u00d1amen apparently never could hire new counsel to take over the case against Michael. Michael then filed a motion for. summary judgment in July. \\u00d1amen did not attend the hearing on the motion which was scheduled for July 23. \\u00d1amen did, however, inform the court by letter that he wanted the case dismissed.\\nThe district court continued the summary judgment hearing until August 4 at which time \\u00d1amen appeared in person. At the hearing \\u00d1amen told the court he wanted to dismiss not only the district court action but the appeal as well. The district court dismissed the action against Michael. The court, however, had no jurisdiction to dismiss the appeal.\\nHayes was not aware that \\u00d1amen wanted to dismiss the appeal. When he found out, Hayes sent \\u00d1amen an authorization to do so. In the accompanying letter Hayes explained he understood \\u00d1amen wanted to dismiss the appeal. \\u00d1amen never responded to Hayes' letter, which was sent September 16.\\nOn September 16 Kathleen filed a motion to dismiss the appeal. She supported the motion with a transcript of the August 4 hearing at which \\u00d1amen had stated he wanted the appeal dismissed. There was no resistance to this motion. On October 27 this court dismissed the appeal.\\nC. The Malicious Prosecution and Abuse of Process Claims.\\nFollowing the dismissal of both the district court action and the appeal, the Wil-sons sued Hayes for malicious prosecution and abuse of process. In this action, they claim that Hayes' conduct in initiating the original lawsuit and then continuing the case constituted malicious prosecution. In addition the Wilsons contend that Hayes committed an abuse of process when he sought a personal release instead of dismissing the lawsuit.\\nThe Wilsons' claims were filed and tried at law to the court. Following trial, the district court filed extensive findings of fact and conclusions of law. The court held that the Wilsons had failed to prove by a preponderance of the evidence the essential elements of each tort.\\nThe Wilsons appealed and Hayes cross-appealed.\\nAs to their malicious prosecution claim, the Wilsons contend that, contrary to the district court's findings, they did establish that Hayes lacked probable cause and therefore acted with malice toward them in initiating and continuing the lawsuit.\\nThe Wilsons also contend they established their claim of abuse of process. They argue that contrary to the district court's findings, Hayes' primary purpose for continuing the lawsuit was to secure a release for himself. They argue that such conduct was improper and constituted an abuse of legal process.\\nIn his cross-appeal Hayes contends the district court erred when it did not sustain his motion for directed verdict. In his motion Hayes had contended that the Wilsons were required to produce expert testimony on lack of probable cause and on whether he properly used legal process. Three organizations have filed Amicus Curiae briefs contending that expert testimony should be required to establish lack of probable cause in a malicious prosecution action against an attorney. These organizations include the Iowa State Bar Association, the Iowa Trial Lawyers Association, and the Iowa Academy of Trial Lawyers.\\nOur scope of review in actions for malicious prosecution and abuse of process is limited to correction of errors at law. Royce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988) (citing Iowa R.App.P. 4). Findings of fact in jury-waived cases shall have the effect of a special verdict. Iowa R.App.P. 4. We are bound by the trial court's findings of fact if they are supported by substantial evidence. Iowa R.App.P. 14(f)(1). Evidence is substantial when a reasonable mind could accept it as adequate to reach the same findings. Waukon Auto Supply v. Farmers & Merchants Sav. Bank, 440 N.W.2d 844, 846 (Iowa 1989).\\nII. The Issues on Appeal.\\nA. Malicious Prosecution.\\nOver the years medical malpractice litigation, for whatever reason, has mushroomed. The medical community has been critical of such suits, suggesting that many are frivolous and brought merely for their settlement value. This feeling has prompted a number of doctors to retaliate by bringing malicious prosecution suits against either the original patient plaintiff or the plaintiffs attorney. See Wong v. Tabor, 422 N.E.2d 1279, 1282-83 (Ind.App.1981).\\nMalicious prosecution began as a remedy for unjustifiable criminal proceedings. Gradually the remedy was extended to the wrongful institution of civil suits. See W. Prosser, Law of Torts \\u00a7 120, at 889 (Fifth Ed.1984) [hereinafter Prosser]. In fact, the Restatement refers to the civil side of the remedy as the \\\"wrongful use of civil proceedings.\\\" See Restatement (Second) of Torts, Wrongful Use of Civil Proceedings, \\u00a7 674-681B, at 452-73 (1977). So when applied to civil proceedings, malicious prosecution is actually a misnomer. Prosser \\u00a7 120, at 892. In our own cases we make no distinction. See, e.g., Sarvold v. Dodson, 237 N.W.2d 447, 448 (Iowa 1976) (\\\"The basis of an action for malicious prosecution consists of the wrongful initiation of an unsuccessful civil or criminal proceeding with malice and without probable cause\\\").\\nThe remedy's primary purpose is to provide relief in those cases in which a plaintiff brings a meritless suit and has an improper motive for bringing it. Wong, 422 N.E.2d at 1283. Courts have not favored the remedy and so have construed its requirements strictly against the malicious prosecution plaintiff. Id. According to Prosser, two competing social interests underlie the remedy: the individual interest in freedom from unjustifiable litigation and the social interest in supporting resort to the law. Prosser \\u00a7 119, at 871.\\nIt is only in recent years that litigants have used the remedy against attorneys. One commentator suggests the remedy focuses on the intent of the original plaintiff rather than on the attorney's conduct in screening lawsuits. Note, A Lawyer's Duty to Reject Groundless Litigation, 26 Wayne L.Rev. 1561, 1569 (1980). For that reason it is suggested the remedy is ill-equipped to deter attorneys from filing groundless suits. Id. at 1568. This in turn may account for the reluctance of the courts to hold attorneys liable for malicious prosecution. Wong, 422 N.E.2d at 1283.\\nWe recently summarized the elements of a malicious prosecution suit in a civil setting:\\nTo prevail on a claim for malicious prosecution, the plaintiff must establish each of the following six elements: (1) a previous prosecution, (2) instigation of that prosecution by the defendant, (3) termination of that prosecution by acquittal or discharge of the plaintiff, (4) want of probable cause, (5) malice on the part of defendant for bringing the prosecution, and (6) damage to plaintiff.\\nRoyce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988); see also Restatement (Second) of Torts \\u00a7 674, 681A (setting forth comparable elements).\\nThe fighting issue here concerns Hayes' conduct in initiating and continuing the malpractice action. Specifically, did he have probable cause? And did he act with malice or an improper purpose?\\nWhile we have addressed the question of probable cause to file suit from a litigant's standpoint, we have not developed a standard for reviewing an attorney's decision to file suit. Such a standard requires a careful consideration of the attorney's duty to the client and freedom of access to the courts:\\n[In developing a standard for reviewing a lawyer's decision to file suit], we must be ever mindful that an attorney's role is to facilitate access to our judicial system for any person seeking legal relief. As such, probable cause is not to be judged merely upon some personal assessment of a claim's merit. It must encompass consideration of the law's desire to fully meet the client's needs. While an attorney is under an ethical duty to avoid suit where its only purpose is to harass or injure, if a balance must be struck between the desire of an adversary to be free from unwarranted accusations and the need of the client for undivided loyalty, the client's interests must be paramount. .\\nWe thus emphasize that any standard of probable cause must insure that the attorney's \\\"duty to his client to present his case vigorously in a manner as favor able to the client as the rules of law and professional ethics will permit\\\" is preserved. .\\nWe recognize that through an effort to protect every citizen's free access to the courts some innocent persons may suffer the publicity, expense and other burdens of defending ill-founded lawsuits. While this is regrettable, the chilling effect that a broad rule of attorney liability would have upon the legal system, and ultimately upon its popular acceptance as a means of dispute resolution, appears to outweigh the value of the protection it would afford to those who might be deemed \\\"innocent\\\" defendants.\\nWong, 422 N.E.2d at 1285-86; accord Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978).\\nIn keeping with this philosophy, the Restatement has formulated a special rule to govern review of an attorney's conduct in commencing and continuing a lawsuit:\\nAn attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action; and even if he has no probable cause and is convinced that his client's claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. An attorney is not required or expected to prejudge his client's claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.\\nIf, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.\\nRestatement (Second) of Torts \\u00a7 674 comment d (1977) (citations omitted). In short, under this rule the attorney avoids liability if the attorney either had probable cause or acted primarily to have the client's claim judicially determined.\\nThe improper purpose element in this rule coincides with the concept of malice and is discussed in section 676 of the Restatement:\\nPropriety of Purpose.\\nTo subject a person to liability for wrongful civil proceedings, the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper adjudication of the claim on which they are based.\\nId. \\u00a7 676.\\nComment c to section 676 gives examples of improper purposes: the person bringing suit is aware the claim has no merit; the proceedings are begun because of hostility or ill will; the matter is initiated solely for the purpose of depriving the person against whom it is brought of a beneficial use of property; or, suit is brought for the purpose of forcing a settlement which has no relation to the merits of the claim (a \\\"nuisance\\\" suit).\\nOur concept of malice for malicious prosecution is set out in Brown v. Monticello State Bank, 360 N.W.2d 81, 87 (Iowa 1984):\\nMalice means any wrongful act which has been wilfully and purposely done to the injury of another. There must be an improper purpose or motive. Malice may be actual, or it may be inferred from a want of probable cause.\\nAlthough this definition seemingly coincides with the concept of improper purpose in section 676 of the Restatement, there is one important difference. Under our definition malice may be inferred from a want of probable cause. Id. Under section 676 a finding of an improper purpose must be supported by evidence independent of the evidence establishing a want of probable cause. See Friedman v. Dozorc, 412 Mich. 1, 56-57, 312 N.W.2d 585, 607 (1981).\\nThe independent evidence requirement stems from the following language in comment d to section 674 of the Restatement:\\n[E]ven if [the lawyer] has no probable cause and is convinced that his client's claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.\\nSo the attorney who\\n\\\"acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim,\\\" albeit with knowledge that the claim is not tenable, should not be subject to liability on the thesis that an inference of an improper purpose may be drawn from the lawyer's continuing to advance a claim which he knew to be untenable.\\nFriedman, 412 Mich. at 56-57, 312 N.W.2d at 607.\\nThe rule that malice may be inferred from want of probable cause developed in eases in which damages were sought from a lay person. One court suggests that this rule \\\"fails to make sufficient allowance for the lawyer's role as advocate and should not be applied in determining whether a lawyer acted for an improper purpose.\\\" Id.\\nThus, under the Restatement rule as expressed in comment d, an attorney would only be liable if the attorney knowingly initiated or continued a suit for a clearly improper purpose. Filing or continuing a weak case would not be enough. Nor would a failure to fully investigate all the facts prior to suit. So long as the attorney has grounds to support a belief \\\"that bringing a particular action may help to secure a proper adjudication of a claim,\\\" no liability would result. Wong, 422 N.E.2d at 1287; see also Friedman, 412 Mich. at 52-55, 312 N.W.2d at 605-06; 52 Am.Jur.2d Malicious Prosecution \\u00a7 64 (1970) (\\\"Except on proof of his actual knowledge that the charge was groundless, . an attorney should not be held liable for the malicious prosecution of a third person if it appears that he acted with the authority of his client, solely in the interest of his client, and without knowledge of fraud, collusion, or sinister intent to injure or deceive the third party\\\").\\nIn determining the existence of probable cause\\n[t]he important question [is not the defendant's] belief but whether all the facts, as [the defendant] knew them or should have known, were such as to justify the ordinary, reasonably prudent, careful and conscientious person in reaching such a conclusion.\\nSchnathorst v. Williams, 240 Iowa 561, 577, 36 N.W.2d 739, 748 (1949). Stated another way,\\nthere is a want of probable cause if the circumstances are such as to satisfy a reasonable [person] that the defendant had no ground for proceeding but [the] desire to injure the plaintiff.\\n52 Am.Jur.2d Malicious Prosecution \\u00a7 52, at 218.\\nTo establish probable cause, however, \\\"it is not necessary that one be certain of the outcome.\\\" Id. \\u00a7 51, at 219. Rather, the test for probable cause is an objective one: probable cause exists if there are reasonable grounds for believing the suit is justified. Id. Implicit in this test is the notion that\\n[t]he conduct of the defendant is to be weighed in view of what appears to the defendant at the time of initiating the prior proceeding....\\nId. \\u00a7 64, at 226.\\nWhen deciding if a client has probable cause,\\nan attorney is entitled to rely in good faith upon the statements of facts made . by [the] client, and is not under a duty to institute an inquiry for the purpose of verifying [the client's] statement. .\\nId. \\u00a7 64, at 226-27; accord Friedman, 412 Mich. at 52-53, 312 N.W.2d at 605; Murdock v. Gerth, 65 Cal.App.2d 170, 179, 150 P.2d 489, 493 (1944).\\nProbable cause is defined in the Restatement:\\nOne who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either\\n(a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law, or\\n(b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information.\\nRestatement (Second) of Torts \\u00a7 675. A person initiating a civil proceeding cannot have a \\\"reasonable belief in the existence of the facts on which the-proceedings are based\\\" if the person knows that the alleged facts are not true. Id. at comment d. On the other hand it is enough if the existence of such facts is not certain, but the person believes their existence can be established to the satisfaction of the jury. Id.\\nThis definition of probable cause\\n[\\u0430]s applied to a plaintiff's lawyer . would allow lack of probable cause to be found where the lawyer proceeded with knowledge that the claim had no factual or legal basis, but would impose no obligation to investigate if the lawyer could reasonably believe the facts to be as the client alleged.\\nFriedman, 412 Mich. at 55, 312 N.W.2d at 606. We see no practical difference between the Restatement's definition of probable cause as applied to attorneys and the definition of probable cause we spoke of earlier.\\nWe think the Restatement's approach to attorney liability for malicious prosecution is sound. So we adopt the rule stated in comment d to section 674 of the Restatement. We also adopt the rule that a finding of an improper purpose must be supported by evidence independent of the evidence establishing a want of probable cause. In other words, in cases of malicious prosecution against attorneys an improper purpose may not be presumed from a want of probable cause. Our rule that malice may be presumed from a want of probable cause remains the same in all other cases.\\nThere are a number of reasons why we think this approach is sound. First, we have already mentioned the attorney's duty to facilitate access to the court for any person seeking legal relief and the attorney's duty to vigorously present the client's case. Any broad rule of attorney liability would have a chilling effect on both. As one court .wisely noted,\\nTo create liability . for the bringing of a weak ease, would be to destroy his efficacy as advocate of his client and his value to the court, since only the rare attorney would have the courage to take other than the \\\"easy\\\" case.\\nBerlin v. Nathan, 64 Ill.App.3d 940, 953, 21 Ill.Dec. 682, 691, 381 N.E.2d 1367, 1376 (1978), cert. denied, 444 U.S. 828, 100 S.Ct. 53, 62 L.Ed.2d 36 (1979).\\nSecond, statute of limitations problems present serious dilemmas to attorneys. There may be only enough time to file suit based on the information the client gives. Should an attorney refuse to handle a case that seems to have merit merely because there is not enough time to investigate and research? These circumstances create a \\\"catch 22\\\" situation for the attorney. The attorney could fail to file and possibly create grounds for ldgal malpractice. Or the attorney could file and possibly create grounds for a malicious prosecution action.\\nThird, as one court suggests, whether an attorney acted appropriately in initiating or continuing a suit \\\"should not normally depend upon the extent of the investigation conducted.\\\" Friedman, 412 Mich. at 52, 312 N.W.2d at 605. The canons of ethics echo this notion. Such canons, for example,\\nconsistently incorporate a requirement of scienter as to groundlessness or vexa-tiousness, not a requirement that the lawyer take affirmative measures to verify the factual basis of the client's position.\\nId. at, 312 N.W.2d at 605; Iowa Code of Professional Responsibility for Lawyers DR 7-102(A) (lawyer should not file suit when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another).\\nFourth, oftentimes a case looks good from the start, but as time goes on the case turns sour. This case is a prime example. The attorney in such circumstances may again be caught in a \\\"catch 22\\\" situation. The attorney usually reaches a point where the client is advised to settle for a nominal amount or dismiss. The client, as in this case, may adamantly refuse and insist upon pressing the claim though the attorney has explained that the case has little chance of success. In these circumstances an attorney's ability to withdraw is curtailed if the client objects. See Friedman, 412 Mich. at 57 n. 60, 312 N.W.2d at 607 n. 60. The canons of ethics do allow the attorney to withdraw when the attorney discovers the case has no merit. But the attorney must secure court permission which might not be granted. See Iowa Code of Professional Responsibility for Lawyers DR 2-110(A)(1) (lawyer shall not withdraw without court permission); DR 2-110(A)(2) (lawyer may not withdraw until lawyer takes reasonable steps to protect client).\\nFifth, some courts fear that a conflict of interest may arise between attorney and client if a duty is imposed on the attorney to third parties not to file weak cases. An attorney owes a duty to the client to present the client's case vigorously in a manner as favorable to the client as the rules of law and professional ethics demand. See Berlin, 64 Ill.App.3d at 953, 21 Ill.Dec. at 691, 381 N.E.2d at 1376; Iowa Code of Professional Responsibility for Lawyers DR 5-101 (refusing employment when the interests of the lawyer may impair lawyer's independent professional judgment).\\nSixth, an attorney's identification with a client is professional, not personal. In this sense an attorney's role does not differ from that in other professional relationships. For example, no reasonable person would impute a patient's conduct to a treating physician. And no reasonable person would levy criticism against a physician for furnishing needed medical services, even when the patient might seek such treatment for injuries resulting from objectionable or even outrageous conduct.\\nLast, we think Iowa Rule of Civil Procedure 80(a) provides an adequate alternative remedy for baseless litigation. Under the rule an attorney's signature on every motion, pleading, or other paper, is a certification that the attorney\\nhas read [such documents]; that to the best of [the attorney's] knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or cause an unnecessary delay or needless increase in the cost of litigation....\\nIowa R.Civ.P. 80(a) (emphasis added).\\nA violation of Rule 80(a) subjects the offending attorney to sanctions including \\\"the amount of the reasonable expenses incurred because of the filing of [the enumerated documents], including a reasonable attorney fee.\\\" Id. An attorney who files a suit without first conducting a reasonable investigation may escape liability for malicious prosecution if the suit turns out to be groundless. But such an attorney may incur sanctions under rule 80(a).\\nWith these principles in mind we turn to the record in this case.\\n1. Initiating the suit. There is no dispute between the parties that the malpractice action terminated in favor of the Wil-sons. The district court so found and we do not address that issue any further.\\nAt this point, as the district court found, the Wilsons had established a prima facie case that probable cause for initiating the suit was lacking. See Schnathorst, 240 Iowa at 573-74, 36 N.W.2d at 746. Hayes then had the burden of going forward with the evidence to rebut this presumption. But the burden of persuasion as to all the elements of malicious prosecution still remained with the Wilsons. See id. The district court found that Hayes had rebutted the presumption. The court also found that the Wilsons had failed to prove by a preponderance of the evidence that probable cause for initiating the suit was lacking.\\nIn reaching its conclusion, the court found that the following critical facts were known to Hayes when the malpractice action was filed:\\n(1) Kathleen and Michael had both seen Ellen on July 13, 1983, and both were aware that she had recently been in an automobile accident.\\n(2) \\u00d1amen and his children told Hayes that Ellen had been complaining of constant headaches and that Ellen had relayed this fact to the Wilsons.\\n(3) The July 13, 1983, emergency records list \\\"K. Wilson\\\" as Ellen's physician. These records also show that Ellen was complaining of a headache.\\n(4) Kathleen's office notes verify Ellen's July 13, 1983, visit and include a brief medical history as well as statements about the hospital x-rays and a diagnosis of Ellen's right ankle injury.\\n(5) Kathleen's office notes also include a written plan to refer Ellen to Michael.\\n(6) Kathleen's office records show that \\u00d1amen paid $17 for Ellen's visit.\\n(7) Michael's office notes include substantially similar information regarding Ellen's visit to him.\\n(8) Michael's office notes indicate that he forwarded a copy of his notes, including medical history, diagnosis, and recommended treatment, to Kathleen.\\n(9) Before filing the lawsuit, Hayes consulted with Brillman, a board-certified neurologist. After reviewing the facts as related by Hayes who in turn relied on the medical records and what the Rashids had told him, Brillman concluded that the Wilsons may have been negligent. Brillman gave Hayes a logical and convincing theory in support of his conclusion.\\nWe think these facts support the district court's conclusion that Hayes had rebutted the prima facie case. These facts also support the court's conclusion that the Wilsons had failed to prove by a preponderance of the evidence that probable cause to initiate the suit was lacking. Hayes had before him the facts according to the Rashids as well as documentary evidence tending to support these facts. Hayes also had the opinion of a qualified expert with whom Hayes had consulted in previous cases. Given this information, we think a reasonably prudent and careful attorney could conclude that filing the suit was justified.\\nBecause the district court found that Hayes had probable cause to initiate the malpractice action, it held that malice could not be inferred. As to the existence of actual malice, the court ruled that \\\"[n]o other substantial evidence shows or purports to show that Hayes initiated the Rashids' lawsuit with malice.\\\"\\nWe agree with the district court's bottom line. However, under the Restatement rule we adopt today, an improper purpose\\u2014the counterpart of malice\\u2014cannot be inferred from a lack of probable cause. So under this rule, even had the district court found a lack of probable cause, it would need to find from independent evidence that Hayes initiated the suit for an improper purpose. We find no such independent evidence in the record.\\nThat brings us to the question whether there was probable cause to continue the lawsuit and whether there was any malice in doing so.\\n2. Continuing the lawsuit. Even though a lawsuit is commenced with probable cause, if the suit is prosecuted after it later appears there is in fact no probable cause, liability may arise. See Restatement (Second) of Torts \\u00a7 674 comment c. According to comment c:\\nOne who continues a civil proceeding that has properly been begun or one who takes an active part in its continuation for an improper purpose after he has learned that there is no probable cause for the proceeding becomes liable as if he had then initiated the proceeding.\\nId. In an early case this court recognized this same principle. See Wetmore v. Mellinger, 14 N.W. 722, 723 (Iowa 1883), rev'd on rehearing, 64 Iowa 741, 18 N.W. 870 (1884).\\nAs in the case of initiating a lawsuit, an improper purpose for continuing one may not be inferred from a lack of probable cause. Such purpose must be established by evidence independent of the evidence establishing a lack of probable cause.\\nKathleen contended in the district court, as she contends here, that there never was a doctor-patient relationship between Ellen and her. She argues that at some point early in the proceedings Hayes should have realized this and dismissed the suit against her.\\nAnother contention is based on the assumption that such a doctor-patient relationship existed. Even in these circumstances the Wilsons contend the lawsuit should have been discontinued because it soon became apparent none of the Rashids had complained to them that Ellen was suffering serious headaches. Such a complaint, of course, was an important predicate for an opinion that the Wilsons were negligent. At that point the Wilsons argue Hayes had no probable cause to continue the case against either of them.\\nThe district court found against the Wil-sons on both points. The court concluded that they had not established by a preponderance of the evidence lack of probable cause to continue the case. For reasons that follow we agree.\\na. The case against Kathleen. As the district court found, probable cause for the continuation of the case against Kathleen centered on her motion for summary judgment. We agree with the district court that such probable cause depended on whether Hayes had reasonable grounds to dispute the summary judgment ruling. And that depended on whether there was a fact question regarding the existence of a doctor-patient relationship between Kathleen and Ellen. See Iowa R.Civ.P. 237(c). Hayes squarely raised this issue in the appeal.\\nAs we earlier noted, the summary judgment record contained affidavits, medical records, and excerpts from Namen's deposition. This record contained conflicting factual information regarding the existence of a doctor-patient relationship. Based on this record we think Hayes had reasonable grounds to believe he could prevail on appeal, the same conclusion the district court reached. In the words of the district court,\\nHayes had probable cause to pursue the appeal in that he had knowledge of a state of facts which would lead a person of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, to believe that pursuit of the appeal was justified. Stated otherwise, the court finds and concludes that the [Wilsons] have not shown by a preponderance of the evidence that Hayes lacked probable cause to believe that a physician-patient relationship existed between Kathleen and Ellen and lacked probable cause to pursue an appeal from an adverse ruling on the motion for summary judgment.\\nb. The case against both doctors. The crucial fact in the case against both doctors was whether Ellen had complained of headaches to them. Our recital of the facts found by the district court demonstrates there was a factual dispute on this issue.\\nThe Wilsons, of eourse, deny that Ellen complained about headaches. Both doctors agree, however, that had she done so, a CAT scan should have been ordered to detect a possible aneurysm.\\n\\u00d1amen, on the other hand, claimed that Ellen did complain of headaches to Michael, but that Michael told her there was nothing wrong with her head. The Rashid children also asserted that Ellen told Michael about the headaches. \\u00d1amen also claimed that he told Kathleen about the headaches when he took Ellen to her.\\nDr. Gundrum told Hayes that Ellen must have complained of a significant headache because he did a complete neurological exam. The July 13, 1983, emergency records tend to support Dr. Gundrum because they note that Ellen complained of a headache.\\nFinally, in addition to Brillman, several other doctors Hayes contacted later in the case all agreed that if Namen's version regarding this complaint was true, the CAT scan should have been ordered.\\nGiven the factual information available to Hayes, we think the district court properly found that Hayes had reasonable grounds to believe such complaints had been made. The court, therefore, properly concluded that Hayes had probable cause to continue the case.\\nThe district court also found that the Wilsons had failed to prove Hayes continued the suit against them \\\"out of ill-will, hatred, or for such other wrongful purpose as would constitute malice.\\\"\\nOne issue the district court did not specifically address was the significance of Hayes' request for a release for himself during settlement negotiations. This bore on the question of malice or improper purpose. The Wilsons, however, did not file a rule 179(b) motion requesting the court to rule on this issue. So we deem it waived as to the malicious prosecution action. See Cole v. First State Bank, 463 N.W.2d 59, 63 (Iowa 1990) (Iowa Rule of Civil Procedure 179(b) motion essential to preservation of error when a trial court fails to resolve an issue).\\nHowever, this issue was raised and decided by the district court in the abuse of process action, which we next address. What we say there amply supports the district court's general finding of no malice or improper purpose in continuing the lawsuit for malicious prosecution purposes.\\nB. Abuse of process.\\nAbuse of process is similar to malicious prosecution in that the basis for both is the improvident use of courts. Note, A Lawyer's Duty to Reject Groundless Litigation, 26 Wayne L.Rev. at 1565. The focus, however, is slightly different:\\nMalicious prosecution occurs when an action is instituted without foundation. Conversely, abuse of process may be found when [legal process] is . used to attain a collateral objective beyond that anticipated by the process. An ulterior motive does not alone satisfy the requirement for an action in abuse of process; a definite act or threat outside the process is required.\\nId. at 1555-56; see also Grell v. Poulsen, 389 N.W.2d 661, 663 (Iowa 1986).\\nWe have defined abuse of process as the use of \\\" 'legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed....'\\\" Schmidt v. Wilkinson, 340 N.W.2d 282, 284 (Iowa 1983) (quoting Restatement (Second) of Torts \\u00a7 682). The essence of this tort is an improper purpose for using the legal process. The improper purpose must result from \\\" '[s]ome act or threat directed to an immediate objective not legitimate in the use of the process _'\\\" Id. (quoting Restatement (Second) of Torts app. \\u00a7 682 (1981)).\\nAn improper purpose or use \\\" 'is ordinarily an attempt to secure from another some collateral advantage not properly in-cludable in the process itself....'\\\" Id. at 284-85 (quoting Sarvold, 237 N.W.2d at 449). Simply put, the improper purpose relates to an extortion or coercion attempt by one person to do some other thing. Id. at 285.\\nAn abuse of process can occur even though there is probable cause to bring the action and the original action terminates in favor of the plaintiff. Sarvold v. Dodson, 237 N.W.2d at 449.\\nAbuse of process has two elements: (1) legal process and (2) use of the legal process in an improper or unauthorized manner. Tomash v. John Deere Indus. Equip. Co., 399 N.W.2d 387, 390 (Iowa 1987). A third element, while not specifically mentioned in our cases, requires that the plaintiff suffered damages as a result of the abuse. See 1 Am.Jur.2d Abuse of Process \\u00a7 4, at 252 (1962).\\nThe first element can generally be shown by the use of a legal process against the plaintiff. See, e.g., Grell v. Poulsen, 389 N.W.2d at 664; Brody, 267 N.W.2d at 905-06; Sarvold, 237 N.W.2d at 450.\\nThe second element \\u2014 improper motive in using the legal process \\u2014 is more difficult to prove. The plaintiff must prove that the defendant used the legal process primarily for an impermissible or illegal motive. Grell, 389 N.W.2d at 663 (quoting with approval Restatement (Second) of Torts \\u00a7 682 comment b). The significance of the word \\\"primarily\\\" is spelled out in Restatement (Second) of Torts, Abuse of Process, \\u00a7 682 comment b:\\n\\\"Primarily.\\\" [Tjhere is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant....\\nFor abuse of process to occur there must be use of the process for an immediate purpose other than that for which it was designed and intended. The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.\\nSee Schmidt, 340 N.W.2d at 284 (adopting comment b).\\nIn previous cases we have taken a very restrictive view of the primary purpose element. We have done so in the interest of protecting the right of ready access to courts. Brody, 267 N.W.2d at 905. So abuse of process will not lie for a civil action which inconveniences a defendant, or for one filed in expectation of settlement (a \\\"nuisance\\\" suit). Id. at 905-06. Additionally, there is no abuse of process when the action is filed to intimidate and embarrass a defendant knowing there is no entitlement to recover the full amount of damages sought. Grell, 389 N.W.2d at 664.\\nAll of this is true as long as the act that is alleged to be improper, is in fact proper in the regular prosecution of the proceeding. Id. Put another way, \\\"the defendant is not liable if he has done no more than carry the process to its authorized conclusion, even with bad intentions.\\\" Schmidt, 340 N.W.2d at 284 (citing with approval additional commentary found in Restatement (Second) of Torts app. \\u00a7 682 (1981)).\\nThe Wilsons contend that Hayes had an improper or illegal motive for continuing the suit: to secure a release for himself which would avoid a suit against him. In support of their contention, the Wilsons argue that Hayes violated several ethical rules and these violations would supply the \\\"primarily\\\" improper motive.\\nSpecifically, the Wilsons claim that Hayes' attempt to secure the release constituted a conflict of interest between Hayes and \\u00d1amen. The Wilsons suggest that at a minimum Hayes should have told \\u00d1amen about the conflict and should have advised \\u00d1amen to consult with another attorney about it. See Iowa Code of Professional Responsibility for Lawyers EC 5-1 (lawyer should exercise professional judgment solely for benefit of client and not for the lawyer's personal interest); EC 5-2 (lawyer should not assume position that would tend to make lawyer's judgment less protective of client's interest); EC 5-11 (lawyer should recommend additional counsel when proper representation of client requires it).\\nThe district court made no specific finding that Hayes committed any ethical violation, concluding that question was not a proper matter for it to decide. The court, however, did find that the proposed release constituted some evidence that Hayes continued the case to secure a collateral benefit. We seriously doubt whether the release request constitutes evidence of improper purpose for abuse of process purposes. Settlement is included in the \\\"goals of proper process,\\\" even though the suit is frivolous. Bickel v. Mackie, 447 F.Supp. 1376, 1383 (N.D.Iowa), aff'd, 590 F.2d 341 (8th Cir.1978); accord Brody v. Ruby, 267 N.W.2d at 905-06.\\nThe district court also found that Hayes continued to pursue the case in the district court and on appeal for legitimate reasons and not \\\"primarily\\\" to secure a release. We think there is substantial evidence to support these findings. Such evidence shows the following.\\nOnce Hayes realized that the chances of a successful trial were minimal, he took immediate steps to settle. \\u00d1amen was amenable to settlement for a very short time. \\u00d1amen, however, quickly changed his mind and would not settle. \\u00d1amen even threatened Hayes if Hayes did not continue with the suit. After Hayes made several unsuccessful attempts to convince \\u00d1amen to settle, he sought and received permission to withdraw from Michael's case.\\nAs to the appeal in Kathleen's case, Hayes had reason to believe the appeal had merit. Hayes remained in the case to protect \\u00d1amen in the event the appeal was successful. And, as he did in Michael's case, Hayes tried to convince \\u00d1amen to dismiss the appeal. But \\u00d1amen refused to do so. By this time the case was ready for oral argument. So Hayes did not seek withdrawal. However, once Hayes learned that \\u00d1amen wanted to dismiss the appeal, as the district court found, Hayes took reasonable steps to dismiss it. \\u00d1amen again would not cooperate, refusing to return the authorization to dismiss that Hayes had sent him.\\nThe Wilsons seize upon Hayes' dismissal of Michael's case as evidence that he acted with an improper purpose in pursuing the appeal against Kathleen. The Wilsons contend that once Hayes sought dismissal of Michael's case he should have sought dismissal of Kathleen's case because her case was even weaker. We disagree.\\nThe evidence suggests a reasonable explanation for the difference in treatment. To pursue Michael's case, Hayes would have had to expend much more time and expense than he would in pursuing the appeal. The appeal was ready to be argued. Minimal time and expense would be expended in prosecuting the appeal to the end.\\nIf Hayes' primary purpose in continuing the appeal was to secure a release for himself, one might ask why did he seek a dismissal only in Michael's case? A dismissal of only one case would still subject him to the risk of suit.\\nThere is one additional reason why the personal release request does not support a finding of abuse of legal process. The district court specifically found that \\\"the discussion of a possible release for Hayes did not in fact obstruct settlement negotiations or prevent settlement.\\\" The court therefore concluded that such discussion \\\"was not a proximate cause of any failure\\\" to settle the malpractice suit.\\nWe think the evidence also supports this finding and conclusion. \\u00d1amen was only briefly amenable to settlement. This was right after his deposition. Thereafter the matter of settlement was a closed subject with him.\\nFor all these reasons we conclude the judgment of the district court as to both claims must be affirmed.\\nIII. Issues on the Cross-Appeal.\\nBecause we are affirming the district court judgment we do not reach the issues Hayes raises in his cross-appeal.\\nIV. Disposition.\\nThere was substantial evidence to support the district court's findings that the Wilsons had not proven their claims of malicious prosecution and abuse of process against Hayes. Accordingly, the district court correctly dismissed the Wilsons' petition, and we affirm its judgment in doing so.\\nAFFIRMED.\\nNEUMAN, J., takes no part.\"}"

iowa/10603409.json

@@ -0,0 +1 @@
+"{\"id\": \"10603409\", \"name\": \"In re the MARRIAGE OF Jacqueline Rhea LACAEYSE and Dean Thomas Lacaeyse. Upon the Petition of Jacqueline Rhea Lacaeyse, Appellant/Cross-Appellee, And Concerning Dean Thomas Lacaeyse, Appellee/Cross-Appellant\", \"name_abbreviation\": \"In re the Marriage of Lacaeyse\", \"decision_date\": \"1990-08-30\", \"docket_number\": \"No. 89-1552\", \"first_page\": \"475\", \"last_page\": \"478\", \"citations\": \"461 N.W.2d 475\", \"volume\": \"461\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:48:36.568311+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard by DONIELSON, P.J., and HAYDEN and HABHAB, JJ.\", \"parties\": \"In re the MARRIAGE OF Jacqueline Rhea LACAEYSE and Dean Thomas Lacaeyse. Upon the Petition of Jacqueline Rhea Lacaeyse, Appellant/Cross-Appellee, And Concerning Dean Thomas Lacaeyse, Appellee/Cross-Appellant.\", \"head_matter\": \"In re the MARRIAGE OF Jacqueline Rhea LACAEYSE and Dean Thomas Lacaeyse. Upon the Petition of Jacqueline Rhea Lacaeyse, Appellant/Cross-Appellee, And Concerning Dean Thomas Lacaeyse, Appellee/Cross-Appellant.\\nNo. 89-1552.\\nCourt of Appeals of Iowa.\\nAug. 30, 1990.\\nMichael W. Mahaffey, Montezuma, for appellant.\\nC.M. Manly, Grinnell, for appellee.\\nHeard by DONIELSON, P.J., and HAYDEN and HABHAB, JJ.\", \"word_count\": \"1300\", \"char_count\": \"8088\", \"text\": \"HABHAB, Judge.\\nAppellant Jacqueline Lacaeyse appeals the custody provision of the district court's decree dissolving her marriage to appellee Dean Lacaeyse. Jacqueline also seeks attorney fees for this appeal. Dean cross-appeals the division of property and visitation provisions of the dissolution decree. We affirm as modified.\\nJacqueline and Dean were married on March 30, 1984. Two children were born of this marriage: Joel, on February 1, 1985, and Alexander, on February 10, 1987. Dean, twenty-six years old at the time of trial, operates a hog farm on 160 acres owned by his grandmother. Jacqueline, who was thirty years old at the time of trial, was primarily a homemaker. Jacqueline was previously married and from that marriage has custody of her seven-year-old daughter, Cassandra.\\nThe parties separated on November 15, 1988, and Jacqueline filed her dissolution petition on December 7, 1988. The district court ordered a psychological evaluation of the parties and their children. The psychologist who conducted the evaluation recommended to the court that Joel and Alexander be placed in the custody of Dean.\\nThe district court, viewing the custody question as an extremely close \\\"call,\\\" awarded joint custody of Joel and Alexander, with primary physical care being awarded to Dean. Upon motion for expanded findings and conclusions of the dissolution decree, the district court granted Jacqueline the choice of visitation every weekend from 10:00 a.m. on Saturday to 7:00 p.m. on Sunday, or visitation every other weekend from 4:00 p.m. on Friday to 7:00 p.m. on Sunday. Jacqueline elected to choose the former alternative. In dividing the parties' property, the district court awarded Dean all of the farm equipment and livestock, as well as the accompanying debt. The court ordered Dean to pay Jacqueline $10,000 in two installments.\\nI.\\nOur review in this matter is de novo. Iowa R.App.P. 4. In child custody cases, the best interests of the child is the first and governing consideration. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.-41(3) and in In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).\\nAll factors bear on the \\\"first and governing consideration,\\\" the court's determination of what will be in the long-term best interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the child is which parent will do better in raising the child; gender is irrelevant and neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa App.1985).\\nThe district court found that Dean can best provide for Joel and Alexander's well being. We concur with that assessment. The court-appointed psychologist, Dr. Tedesco, recommended that the children be placed with Dean. A significant factor in Dr. Tedesco's recommendation was Jacqueline's open exhibition of anger and inappropriate behavior while interacting with her children during a diagnostic play interview. Dean, on the other hand, interacted well with the children and did not display the hostility exhibited by Jacqueline.\\nThe district court, which was able to observe the witnesses and their conduct at trial, determined that Joel's and Alexander's best interests necessitated their placement with Dean. While we are not bound by these findings, we accord them weight, especially when considering the credibility of witnesses. Iowa R.App.P. 14(f)(7). Upon consideration of those factors set out in Iowa Code section 598.41(3), we decline to modify the physical custody of Joel and Alexander.\\nII.\\nDean raises two issues on his cross-appeal. First, he asserts the visitation awarded Jacqueline is excessive. Jacqueline elected to have visitation with the boys every weekend from 10:00 a.m. on Saturday to 7:00 p.m. on Sunday. Additionally, she has visitation every Tuesday and Thursday from 4:00 p.m. to 8:00 p.m.\\nLiberal visitation rights are in the best interest of the children. Iowa Code \\u00a7 598.41(1); In re Marriage of Athy, 428 N.W.2d 310, 313 (Iowa App.1988). Since Dean has primary physical custody of the boys, he is entitled to enjoy weekend time with them. See In re Marriage of Ertmann, 376 N.W.2d 918, 921 (Iowa App.1985); In re Marriage of Weidner, 338 N.W.2d at 359. We therefore modify the decree to award Jacqueline visitation with the boys every other weekend from 4:00 on Friday to 7:00 on Sunday. Dean is also critical of the midweek visitation Jacqueline has with the boys. As we noted in In re Marriage of Ertmann, 376 N.W.2d at 922: \\\"Visitation should include not only weekend time, but time during the week when not disruptive to allow the noncustodial parent the chance to become involved in the child's day-to-day activity as well as weekend fun.\\\" We affirm the district court's granting of midweek visitation to Jacqueline, except we modify the decree by removing the Tuesday and Thursday visitation and inserting in lieu thereof midweek visitation on Wednesday of each week from 4:00 p.m. to 8:00 p.m. We believe that two-day midweek visitation under the circumstances here would be unduly disruptive to the custodial parent.\\nIII.\\nDean also questions the equity of the property division. Specifically, Dean asserts the $10,000 lump sum payment to Jacqueline to be inequitable. To resolve this issue, we turn to well-settled principles of law. The partners in a marriage are \\\"entitled to a just and equitable share of the property accumulated through their joint efforts.\\\" In re Marriage of Havran, 406 N.W.2d 450, 452 (Iowa App.1987). The distribution of the property of the parties should be that which is equitable under the circumstances after consideration of the criteria codified in Iowa Code section 598.-21(1). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa App.1983). While Jacqueline was awarded more in terms of net assets, Dean was awarded all income-producing assets associated with his farming enterprise in addition to various personal property. We find the property division to be equitable.\\nIV.\\nAdditionally, Jacqueline seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa App.1987). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa App.1981). Each party shall pay his or her respective attorney fees.\\nV.\\nA final subsidiary issue in this matter concerns Dean's contention that Jacqueline's inclusion of the entire transcript of the trial in the appendix to be unnecessary. The Iowa Supreme Court has directed us to consider this issue on appeal. Iowa Rule of Appellate Procedure 15(a) provides that the appendix is to contain only relevant portions of the record. The inclusion of irrelevant portions of the record results in two problems: additional printing expense and \\\"an unwarranted reading burden on the members of the appellate courts.\\\" State v. Oppelt, 329 N.W.2d 17, 21 (Iowa 1983). Two hundred eleven pages of the transcripts were included in the appendix by appellant, sixty-nine pages of which we view as unnecessary. We therefore assess twenty percent of the cost of the appendix, $148.26, to appellant. The remaining costs are assessed one-half to each party.\\nAFFIRMED AS MODIFIED.\"}"

iowa/10606921.json

@@ -0,0 +1 @@
+"{\"id\": \"10606921\", \"name\": \"Maurice L. KLEIN, Appellee, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellant\", \"name_abbreviation\": \"Klein v. Iowa Department of Revenue & Finance\", \"decision_date\": \"1990-02-21\", \"docket_number\": \"No. 88-1817\", \"first_page\": \"837\", \"last_page\": \"843\", \"citations\": \"451 N.W.2d 837\", \"volume\": \"451\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:17:11.131462+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO and SNELL, JJ.\", \"parties\": \"Maurice L. KLEIN, Appellee, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellant.\", \"head_matter\": \"Maurice L. KLEIN, Appellee, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellant.\\nNo. 88-1817.\\nSupreme Court of Iowa.\\nFeb. 21, 1990.\\nThomas J. Miller, Atty. Gen., Harry M. Griger, Sp. Asst. Atty. Gen., and Lucille M. Hardy, Asst. Atty. Gen., for appellant.\\nDennis J. Naughton of Naughton, Sten-lund & Reilly, Dubuque, for appellee.\\nConsidered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO and SNELL, JJ.\", \"word_count\": \"2993\", \"char_count\": \"18633\", \"text\": \"LAVORATO, Justice.\\nAccording to an Iowa income tax statute when married persons file separate returns, both must use the optional standard deduction if either elects to use it. Iowa Code \\u00a7 422.9(4) (1981). This appeal presents the following question: If one spouse uses the standard deduction, may the other spouse itemize deductions? The district court thought so, but we disagree and reverse. We affirm as to the issues raised in the cross appeal.\\nMaurice L. and LaVonne M. Klein were divorced on August 19, 1983. They separated in November 1982. But the separation was not pursuant to a decree of dissolution or separate maintenance.\\nIn February 1983 Maurice filed an individual Iowa income tax return for the calendar year 1982. He used the filing status of \\\"married filing separate returns\\\" and itemized his deductions. See Iowa Admin. Code 701-39.4(5) (1981).\\nOn her 1982 return, LaVonne did not itemize deductions. Instead she chose to take the standard deduction. See Iowa Code \\u00a7 422.9(1).\\nAfter auditing Maurice's 1982 return, the Iowa Department of Revenue and Finance disallowed the itemized deductions and replaced them with the standard deduction. The department also denied Maurice the right to claim his two minor stepchildren as dependents.\\nMaurice received a tax due notice from the department, requesting payment of $773.84. See Iowa Code \\u00a7 422.25. Maurice later received a tax due notice in the amount of $794.60.\\nMaurice paid the $794.60 under protest. He then sent the department a claim for income tax refund/protest regarding the 1982 return. See Iowa Admin.Code 701-7.-8(17A); 701-7.14(17A).\\nAfter an evidentiary hearing, the hearing officer entered a proposed order. See id. at 701-7.17(5). The hearing officer concluded that\\nIowa Code section 422.9(4) and 701 Iowa Administrative Code section 41.4 specifically require both spouses to use the optional standard deduction if either spouse elects to use it. The department was correct to disallow [Maurice's] itemized deductions for 1982.\\nThe hearing officer also concluded that Maurice had failed to prove he was entitled to claim LaVonne's two children as dependents.\\nMaurice appealed to the director of the department, who adopted the hearing officer's proposed order in its entirety. See Iowa Code \\u00a7 422.28. Maurice then filed a petition for judicial review in the district court. See Iowa Code \\u00a7 422.55.\\nThe district court initially affirmed the director's decision. Later, in response to Maurice's motion to amend findings and conclusions, the court modified its earlier ruling. This time the court allowed Maurice to itemize deductions as he had done on his 1982 return. It is from this ruling that the department appeals, contending that the district court erroneously interpreted Iowa Code section 422.9(4).\\nMaurice cross-appealed from the part of the district court ruling that affirmed the director's order on the dependency exemption issue. One of the issues Maurice raises here centers on the hearing officer's refusal to require the department to furnish Maurice with LaVonne's 1982 tax return. Another issue Maurice raises concerns the hearing officer's refusal to require the department to furnish him with information to show that LaVonne supported her two children. These refusals, Maurice argues, shifted the burden of proof on the dependency exemption issue to the department \\u2014 a burden the department failed to meet.\\nIn addition Maurice contends the department and the district court, in denying the dependency exemptions, incorrectly applied section 152 of the Internal Revenue Code. Finally, Maurice challenges the constitutionality of section 422.9(4) on the grounds of equal protection under both the federal and Iowa constitutions.\\nI. Scope of Review. Judicial review of the actions of the department of revenue is governed by the Iowa Administrative Procedure Act (IAPA). See Iowa Code \\u00a7 17A.19(8), 422.55. Acting in our appellate capacity, we review the agency's decision solely to correct any errors of law. Norland v. Iowa Dep't of Job Serv., 412 N.W.2d 904, 908 (Iowa 1987).\\nWhen the agency's action involves statutory interpretation or matters of law, \\\"we owe the agency only limited deference. .\\\" Id. This is because \\\"law issues are determinable by the judiciary alone_\\\" Id. (citations omitted).\\nOur inquiry into the agency's findings is, however, more limited. Id. On appeal, the agency's factual findings are binding if supported \\\"by substantial evidence in the record made before the agency when that record is viewed as a whole.\\\" Iowa Code \\u00a7 17A.19(8)(f). This limited scope of factual review requires us to ask only if the evidence submitted supports the findings actually made. Norland, 412 N.W.2d at 908.\\nII. The Appeal \\u2014 The Itemized Deduction Issue. Iowa Code section 422.9(4) provides in pertinent part:\\nIn computing taxable income of individuals, there shall be deducted from net income the largest of the following amounts:\\n1. [Optional standard deduction].\\n2. [Itemized deductions].\\n4. Where married persons file separately, both must use the optional standard deduction if either elects to use it.\\nThe district court explained its interpretation of the provision this way:\\n[Subsection 4] does not award to one spouse the unrestricted election to require the other to use the standard deduction. It merely imposes the requirement that, for either to use the standard deduction, both must. So that, in the absence of a joint election, neither may. In requiring plaintiff to use the standard deduction because his then wife did, [the department] was in error and should not have allowed the wife to use the standard deduction because [Maurice] failed to.\\nWe agree with the department that subsection four is clear: if either spouse elects to use the standard deduction then both must. See Iowa Code \\u00a7 422.9(4); Iowa Admin.Code 701-41.4; Margulies, An Overview of State Taxation of Individual and Corporate Income in Iowa, 26 Drake L.Rev. 57, 70 (1976-77) (emphasis added). Subsection four does not require a joint election, a requirement the district court read into it. A joint election requires a combined decision made by both spouses. The code, however, uses the word \\\"either,\\\" which means that one or the other can make the decision to use the standard deduction. Once this decision is made, the code then requires the nonelecting spouse to use the same deduction. The district court erred in concluding otherwise, and we reverse its judgment on this issue.\\nIII. The Cross Appeal.\\nA. The discovery issue. During the administrative proceedings Maurice asked the department to give him copies of LaVonne's 1982 return. He also served the department with interrogatories requesting information from that return. In response, the department reminded Maurice that he had already attached a copy of her return to his original protest and that, in any event, confidentiality statutes governing tax records precluded the department from giving him the return. See Iowa Code \\u00a7 422.20, 422.72. The hearing officer refused Maurice's request to require the department to give him the return. Instead the hearing officer gave Maurice a subpoena which would have allowed him to subpoena the return. Maurice apparently failed to use the subpoena.\\nMaurice contends the hearing officer abused her discretion when she refused to require the department to give him La-Vonne's 1982 tax return. This refusal, Maurice argues, shifted the burden of proof to the department to show (1) that LaVonne had claimed her children as dependents on her 1982 return, (2) that she supported them, and (3) that she had used a standard deduction on the return.\\nThe short answer here is that Maurice already had the information he thought the department should have given him. In paragraph three of his protest Maurice alleged that LaVonne had filed a 1982 income tax return with a filing status \\\"married filing separate returns.\\\" He also alleged that she had claimed the standard deduction. Finally, he alleged that the return was attached, marked as Exhibit \\\"B\\\", and made a part of the paragraph by reference. In its answer the department admitted paragraph three in its entirety.\\nSo it was uncontroverted that LaVonne had claimed her children as dependents and that she had used the standard deduction. In these circumstances we fail to see how the hearing officer abused her discretion as Maurice contends.\\nB. The dependency exemption issue. Iowa Code section 422.12(l)(c), Iowa's dependency exemption provision, provides in pertinent part:\\nThere shall be deducted from but not to exceed the tax, after the same shall be computed as provided in this division the following:\\n1. a personal exemption credit in the following amounts:\\nc. For each dependent, an additional ten dollars. As used in this section, the term \\\"dependent\\\" shall have the same meaning as provided by the Internal Revenue Code of 1954.\\nThe term \\\"dependent\\\" was defined in section 152 of the Internal Revenue Code of 1954 as\\nany of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer....\\n(2) a stepson or stepdaughter of the taxpayer.\\nThe hearing officer as well as the district court used these provisions in resolving the dependency exemption issue.\\nMaurice contends that the special support test in section 152(e)(1)(A) and 152(e)(2)(B)(i, ii) of the Internal Revenue Code of 1954 applies to him rather than the provisions the department and the district court used. Under this test, a taxpayer who contributes $1200 or more for the support of a child is treated as having contributed over one-half of the child's support.\\nWe agree with the department that Maurice cannot use this special support test but, instead, is bound by the more than fifty percent test in section 152 of the 1954 Internal Revenue Code. We reach this conclusion for two reasons. First, Maurice never urged use of the special support test in the proceedings before the agency or in the district court. We do not consider issues raised for the first time on appeal. See Bonds v. State, 447 N.W.2d 135, 136 (Iowa 1989).\\nSecond, the special support test does not apply. Section 152(e)(1)(A) specifically applies to a \\\"child [who] receives over half of his support during the calendar year from his parents who are divorced or legally separated under a decree of divorce or separate maintenance, or who are separated under a written separation agreement.\\\" (Emphasis added.) The hearing officer found that Maurice and LaVonne were not legally separated under a decree of divorce or separate maintenance. Maurice did not challenge this finding. Nor did he produce any evidence to the contrary. So we conclude there is substantial evidence to support this finding.\\nOur next inquiry is whether there was substantial evidence to support the hearing officer's finding that Maurice failed to prove he contributed more than fifty percent for the support of each child in 1982. In support of this finding the hearing officer explained:\\n[Maurice] contends he supplied over half of his stepchildren's support in 1982. [Maurice] bases this contention on his records, [LaVonne's] checking account at a credit union for approximately eight months in 1982, and portions of a deposition taken during May 1983, regarding their divorce. This evidence is insufficient to establish all [LaVonne's] income and expenditures in 1982. [Maurice] did not know if [LaVonne] had other accounts, and he was also uncertain as to all of the items and amounts she paid for regarding support. In addition, although the father of the children did not pay his court-ordered child support it is unknown what other contributions he may have made. Based on this record, it is not possible to determine the percentages of contributions. The divorce deposition is not complete and leaves open the question of what percentage the mother provided and how she can prove it.\\n(Emphasis added.) We think the hearing officer more than adequately explained why she thought Maurice had failed to prove that he had contributed more than fifty percent of the children's support. We also think there is substantial evidence to support her findings and conclusions. The district court correctly affirmed this part of the agency's decision.\\nAs he did with respect to the dependency exemption issue, Maurice contends the burden of proof shifted to the department to prove the total amount of support. He argues that the department should have given him information about the amount of support LaVonne did provide for the children. The department responds by asserting it could not furnish such information because tax confidentiality statutes prohibited it from doing so. See Iowa Code \\u00a7 422.20, 422.72.\\nWhether the confidentiality statutes prohibited the department from furnishing the information is a question we need not answer. The department offered Maurice an opportunity to subpoena LaVonne and any pertinent documents he felt were necessary to support his case. Maurice ignored the offer. In these circumstances we are not prepared to consider sanctioning the department by shifting the burden of proof to it.\\nOn the other hand, given the usually strained relations between ex-spouses, we recognize the difficulty a noncustodial parent may have in using the subpoena approach to prove a ease of support. Perhaps in these circumstances the legislature ought to impose an obligation upon the custodial parent to furnish the department with proof of total' support and permit the department' to furnish that information to the noncustodial parent. See Note, Children of Dissolved Marriages: A Disputed Tax Deduction, 4 Sw.U.L.Rev. 101, 102 (1972). Cf. I.R.C. \\u00a7 152(e)(3).\\nC. The constitutional issues. We last address Maurice's challenge to Iowa Code section 422.9(4) on equal protection grounds under the federal and Iowa constitutions. See U.S. Const., amends. 5 and 14; Iowa Const., Art. I, \\u00a7 9. He challenges the statute facially and as applied to him.\\nMaurice's argument is simply this. His statistical evidence tends to show that men earn more on the average than women, as is true in his case. So it is not surprising that men, according to department records, tend to use the itemized deduction option more than women. The evil that section 422.9(4) causes is that the statute produces an arbitrary result to the damage of the taxpayers who need the deductions the most. In short, Maurice argues that section 422.9(4) results in unconstitutionally unequal treatment of married men taxpayers versus married women taxpayers.\\nGenerally, a statute that does not offend against equal protection guarantees in the federal constitution does not offend against a similar provision in our State constitution. See Dickinson v. Porter, 240 Iowa 393, 400, 35 N.W.2d 66, 71-72 (1949); Accord Heritage Cablevision v. Board of Supervisors, 436 N.W.2d 37, 38 (Iowa 1989). Maurice gives no reasons or arguments to depart from this general rule, so our analysis here is the same under both constitutions.\\nNo suspect classification or fundamental right is involved here, so our standard of review is rationality. Under this standard we must sustain the validity of a statute \\\"if the legislature could have reasonably concluded that the challenged classification would promote a legitimate state purpose.\\\" Heritage, 436 N.W.2d at 38.\\nWe recognize that the rational basis standard is easily met in challenges to tax statutes. That is because\\nin taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a -classification is a hostile and oppressive discrimination against particular persons and classes.\\nId. at 38-39 (quoting Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 408, 84 L.Ed. 590, 593 (1940)).\\nMaurice's burden is a heavy one. He must demonstrate beyond a reasonable doubt that the statute violates equal protection guarantees. To sustain this burden he has to negate every reasonable basis that may support the statute. In deciding whether Maurice has carried this burden we must keep in mind that \\\"[a]n iron rule of equal taxation is neither attainable nor necessary.\\\" City of Waterloo v. Selden, 251 N.W.2d 506, 508-09 (Iowa 1977).\\nWe agree with the department that Maurice has not carried his burden. We reach this conclusion for two reasons. First, as the department argues, section 422.9(4) creates no classification of married men taxpayers versus married women taxpayers. Instead the statute treats married persons as one economic unit for purposes of the deduction. The legislature could have rationally believed that the economics of marriage justified such treatment.\\nSecond, as the department correctly notes, section 422.9(4) serves a legitimate state purpose. Without such a provision, married taxpayers could double-up on deductions \\u2014 one spouse taking all the itemized deductions and the other taking the standard deduction. Section 422.9(4) prevents a drain on tax revenues while at the same time preserving a deduction for each spouse in case of a dispute.\\nWe have considered Maurice's remaining argument: the due process challenge to section 422.9(4). We find that it has no merit and needs no further consideration.\\nIY. Disposition.\\nIn summary, we hold that Iowa Code section 422.9(4) requires both spouses to use the standard deduction if either chooses to do so. Moreover, we find no equal protection violation under either the federal or state constitutions because of such an interpretation. We reverse that part of the district court's judgment that allowed Maurice to itemize his deductions on his 1982 return.\\nWe conclude there was substantial evidence to support the agency's finding that Maurice did not provide more than fifty percent of the support for LaVonne's two children. So we affirm that part of the district court's judgment which upheld the agency's determination on this issue.\\nREVERSED ON THE APPEAL; AFFIRMED ON THE CROSS-APPEAL.\"}"

iowa/106423.json

@@ -0,0 +1 @@
+"{\"id\": \"106423\", \"name\": \"Utter v. Crane et al.\", \"name_abbreviation\": \"Utter v. Crane\", \"decision_date\": \"1873-12\", \"docket_number\": \"\", \"first_page\": \"631\", \"last_page\": \"635\", \"citations\": \"37 Iowa 631\", \"volume\": \"37\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:50:26.074045+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Utter v. Crane et al.\", \"head_matter\": \"Utter v. Crane et al.\\nMechanic\\u2019s lien: sub-contractors and laborers. A laborer employed by a sub-contractor for building a railroad cannot enforce a lien upon the road for the amount due him, if the contractor has fully paid the subcontractor the amount due under bis contract, tbougb tbe railroad company is indebted to tbe contractor in a sum exceeding tbe amount of tbe claim of tbe laborer against tbe sub-contractor.\\nAppeal from, Fa/yette Circuit Court.\\nSaturday, December 13.\\nAction at law. The petition states that plaintiff performed work and labor under a contract with Crane & Keenan, who are sub-contractors under Burch, Lakin & Co., contractors under the D. & St. P. R. Co., and that Crane & Keenan gave him a statement in writing, showing an amount due him for such labor and directing Burch, Lakin & Co. to pay the same. That upon payment being refused by Burch, Lakin & Co., plaintiff filed a statement in the clerk\\u2019^ office of Payette county, claiming a lien upon the D. & St. P. Railroad, located in said county, a copy of which was served upon each of the said defendants. The statement and notice are such as are required by law for the enforcement of mechanics\\u2019 liens.\\nDefendants, Crane & Keenan, made default.\\nBurch, Lakin & Co. and the D. & St. P. R. Co. set up the following defense in an answer :\\nBurch, Lat\\u00edn & Co. are contractors under the D. & St. P. R. Co. for the grading of a part of its road, and sub-let to Crane & Keenan a part of the work at a price agreed upon; that the work done by plaintiff was under a contract with Crane & Keenan upon the part of the road sub-let to them; that in their contract Burch, Lat\\u00edn & Co. reserved no control of the work as to the number of men to be employed, or the price to be paid them, all of which was known to plaintiff. The contract was made in good faith and for a fair and reasonable compensation, to be paid to Crane & Keenan, and without any intent, on the part of Burch, Lat\\u00edn & Co., to defraud any one, and without any fault on the part of the D. & St. P. R. Co. The work done by Crane & Keenan did not amount to enough to pay in full the laborers employed by them; but the amount earned by Crane & Keenan was divided among the laborers, including plaintiff, in proportion to the amount due them from Crane & Keenan, and the entire amount due Crane & Keenan was thus paid out to such laborers, and that there is nothing now in the hands of either of the other defendants, due to Crane & Keenan. A demurrer to this answer, on the ground that it sets up no defense to plaintiff\\u2019s claim for the enforcement of a lien upon the road for the amount due him, was overruled. From the judgment upon the demurrer plaintiff\\u2019 appeals.\\nJUiclcel <& Fuller for the appellant.\\nNoble, Hatch & Frese, W. A. Hoyt for the appellees.\", \"word_count\": \"1465\", \"char_count\": \"8392\", \"text\": \"Beck, Ch. J.\\nIn our opinion, the demurrer was properly overruled.\\nRevision, \\u00a7 1817, provides that a sub-contractor may enforce a lien upon the property on which he has been employed to labor <5r. for which he supplied materials, by giving a notice at the time, to the owner,' of his intention to labor or furnish materials, and after indebtedness is incurred, upon presenting a statement thereof, signed by the party with whom he con traeted, to the owner, and filing within thirty days a statement of his claim in the clerk's office, etc. Chap. 12, acts 12th Gen. Ass. (Code, \\u00a7 2132), provides that every owner, contractor or sub-contractor of any railroad in the State shall be deemed to have the notice provided for in the section just cited, for a period of sixty days from the last day in the month in which the labor was done or the material furnished, during which period any person entitled to do so may file a lien as provided for, which shall be binding upon the erections, road-bed, etc. But it is provided, that \\\" in case the lien is sought to be enforced against the owner, the liability shall not be greater than his liability would have been to the contractor at the time the labor was performed or materials furnished.\\\"\\nPlaintiff claims that, under these statutes, he is entitled to enforce his lien against the road without regard to the contract between Burch, Lakin & Co. and Crane & Keenan. We are not able to concur in such a construction of the statutes.\\nIn the case before us there is one more party involved in the transaction than is contemplated by the language of the statute. These are the owner (railroad company), the contractor, subcontractor and the laborer, the plaintiff. The statute in its language provides for the case of the owner, contractor and subcontractor. By another provision a laborer is secured the rights of a sub-contractor, and is so considered. Rev., \\u00a7 1871. The statute, in providing for the rights and liabilities of the parties, where there is an owner, contractor and laborer only concerned, does not establish a rule that can be applied according to its very words to a case where another party appears as a sub-contractor, for the rights and relations of the parties are very different. In the case contemplated by the language of the law the contractor employs the laborer or sub-contractor, whose right to enforce the lien is secured. There are in that case but two contracts, the one between the owner and contractor, and another between the contractor and sub-contractor. In the case before us there are three contracts \\u2014 an additional one between the sub-contractor and another sub-contractor, the laborer. It is evident that this fact changes the right of the laborer and the liability of the owner. The sub-contractor, as to the laborer, is a contractor, and as to the one contracting with the owner, under whom he is employed, he bears the same relation. He occupies the place of the first contractor, and as to him and the laborer the first contractor occupies the place of the owner, as contemplated by the language of the statutes. Now the rights of the laborer and liability of the first contractor are to be regarded as though there was no other party concerned, and the liability of the owner as though the contractor were out of the way, and the sub-contractor, employing the laborer, had made his contract directly with the owner. If this be not so, and a lien may be enforced against the road without regard to the contract of the contractor with the sub-contractor, and the fact that he has fully performed it by paying the amount provided therein, then will that contract and the rights of the contractor under it be wholly disregarded and violated, a thing that the law will not tolerate. Such a construction of the statute would destroy the contract, impair its obligation, and we cannot presume the legislature intended any such thing. To authorize such a construction of the statute the language should be so unmistakable as to permit no other reasonable construction.\\nThe claim of the laborer to a lien arises through the contract under which his employer, the sub-contractor, took the work. He has no claim on the contractor based upon the contract which the last named has with the owner, except so far as the contractor may be indebted to the sub-contractor. If the contractor has fully paid the sub-contractor, and discharged his obligation to him, the chain of rights and liabilities between the owner and laborer is separated.\\nAgain: the owner cannot be considered indebted to the subcontractor if the contractor has fully paid him, for the owner's liability depends upon an indebtedness between the contractor and sub-contractor. The sub-contractor claims through his contractor. If he be fully paid he can have no claim on the owner, for he has none in that case on the contractor. If he has no claim on these parties it is evident the laborer, who claims under him, can have none. Now the statute (chap. 12, Acts 14th Glen. Ass.), in providing that, \\\" in case the lien is sought to be enforced against the owner, the liability shall not be greater than his liability would have been to the contractor at the time the labor was performed,\\\" was not changed to create a liability on the part of the owner or contractor, but simply ,to provide for the enforcement of a liability when it was found to exist. As no liability is shown to exist on the part of the contractor or owner plaintiff can have no remedy against them.\\nThese views lead us to the conclusion that the demurrer was properly overruled.\\nAffirmed.\"}"

iowa/10663358.json

@@ -0,0 +1 @@
+"{\"id\": \"10663358\", \"name\": \"Joseph R. FOUTS, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee\", \"name_abbreviation\": \"Fouts v. State\", \"decision_date\": \"1985-01-29\", \"docket_number\": \"No. 83-1645\", \"first_page\": \"38\", \"last_page\": \"40\", \"citations\": \"365 N.W.2d 38\", \"volume\": \"365\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T00:08:48.093686+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.\", \"parties\": \"Joseph R. FOUTS, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.\", \"head_matter\": \"Joseph R. FOUTS, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.\\nNo. 83-1645.\\nCourt of Appeals of Iowa.\\nJan. 29, 1985.\\nRichard L. McCoy, Sioux City, for petitioner-appellant.\\nThomas J. Miller, Atty. Gen. and Steven K. Hansen, Asst. Atty. Gen., for respondent-appellee.\\nConsidered by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.\", \"word_count\": \"886\", \"char_count\": \"5603\", \"text\": \"SNELL, Judge.\\nPetitioner was convicted and sentenced for possession of a controlled substance in violation of Iowa Code section 204.401(3), operating a motor vehicle without consent in violation of Iowa Code section 714.7, and burglary in the second degree, for which he had been on probation, in violation of Iowa Code sections 713.1, 713.3. The conviction followed a guilty plea by petitioner which he subsequently asked to withdraw on the grounds that the State had breached the plea agreement by sending him to the substance abuse program at Oakdale rather than Cherokee. Petitioner filed a notice of appeal with the supreme court but this was later dismissed by the clerk of the supreme court for want of prosecution.\\nAn application for postconviction relief was then filed by petitioner, alleging that he was coerced into pleading guilty, the plea agreement was breached by the State, petitioner was not allowed to withdraw his plea, he was not advised of his right to file a motion for arrest of judgment, his probation was improperly revoked, and he was denied effective assistance of counsel. The State answered and moved for summary judgment asserting that petitioner's grounds for relief were based upon factual and legal contentions known at the time of the original proceeding, and failure to pursue direct appeal of those issues barred relief in postconviction proceedings. At the hearing on the motion, the evidence indicated that an appeal was filed at petitioner's request. Petitioner's appellate counsel, who had also been petitioner's trial counsel, testified that he felt the appeal was without merit, that he informed petitioner of this, and that petitioner vacillated on pursuing the appeal. Counsel was later notified by petitioner to drop the appeal. At the hearing, two letters from petitioner to his attorney asking that the appeal be dropped were introduced into evidence. Petitioner denied that he told counsel to drop the appeal. On October 18, 1983, the trial court entered its order, finding that petitioner was not denied effective assistance of counsel. Summary judgment was granted in favor of the State on the ground that postconviction relief was barred due to petitioner's failure to present his claims on direct appeal. Petitioner has appealed.\\nPostconviction relief proceedings are actions at law triable to the court and ordinarily are reviewed only on error. Hahn v. State, 306 N.W.2d 764, 768 (Iowa 1981). However, when there is an alleged constitutional violation, this court will make its own evaluation of the totality of the circumstances under which the postcon-viction ruling was made. Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 31 (Iowa 1979).\\nPetitioner claims the trial court erred in granting the summary disposition denying his application for postconviction relief on the ground that his failure to appeal directly barred him from postconviction relief. He contends that his failure to appeal directly was due to ineffective assistance of counsel.\\nAs a general rule, any claim not raised at trial or on direct appeal may not be litigated in postconviction unless there is sufficient reason for not properly raising it previously. Washington v. Scurr, 304 N.W.2d 231, 234 (Iowa 1981). Inadequacy of appellate counsel, if established, is sufficient reason to permit a new issue to be raised on appeal. Hinkle v. State, 290 N.W.2d 28, 31 (Iowa 1980).\\nWhen a defendant relies on a specific act or omission to prove ineffective assistance of counsel, two conditions must be demonstrated: 1) counsel failed to perform an essential duty, and 2) prejudice resulted therefrom. State v. Miles, 344 N.W.2d 231, 234 (Iowa 1984). The test for ineffective assistance was most recently set forth in Strickland v. Washington, \\u2014 U.S. \\u2014, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that case, the Court stated: \\\"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\" Id. at \\u2014, 104 S.Ct. at 2068, 80 L.Ed.2d at 698 (1984). The court further stated that \\\"[wjhen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.\\\" Id. at \\u2014, 104 S.Ct. at 2069, 80 L.Ed.2d at 698.\\nIn the present case, the record does not support petitioner's claim of ineffective assistance. The petitioner wrote his attorney on two separate occasions and asked him to drop the appeal. The attorney testified that he had several phone conversations with petitioner in which he confirmed this request. In view of these communications, the attorney's failure to pursue the appeal did not constitute a failure to perform an essential duty.\\nThe trial court's findings that the petitioner received effective assistance of counsel was proper.\\nBecause of petitioner's own request, the claims he now seeks to assert were not raised on direct appeal. He cannot now raise them in a postconviction relief proceeding. The trial court properly granted the summary judgment.\\nThe findings of the trial court are affirmed.\\nAFFIRMED.\"}"

iowa/10671903.json

@@ -0,0 +1 @@
+"{\"id\": \"10671903\", \"name\": \"CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Delores Monroe, as Chairperson of the Des Moines Civil Service Commission, Ralph Costanzo, as Commission Person, and Marsh Houston, as Commission Person, Appellees, Wilbur Devine and Karl Schilling, Intervenors\", \"name_abbreviation\": \"City of Des Moines v. Civil Service Commission of Des Moines\", \"decision_date\": \"1983-05-18\", \"docket_number\": \"No. 68196\", \"first_page\": \"133\", \"last_page\": \"136\", \"citations\": \"334 N.W.2d 133\", \"volume\": \"334\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:16:09.441494+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C.J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.\", \"parties\": \"CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Delores Monroe, as Chairperson of the Des Moines Civil Service Commission, Ralph Costanzo, as Commission Person, and Marsh Houston, as Commission Person, Appellees, Wilbur Devine and Karl Schilling, Intervenors.\", \"head_matter\": \"CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Delores Monroe, as Chairperson of the Des Moines Civil Service Commission, Ralph Costanzo, as Commission Person, and Marsh Houston, as Commission Person, Appellees, Wilbur Devine and Karl Schilling, Intervenors.\\nNo. 68196.\\nSupreme Court of Iowa.\\nMay 18, 1983.\\nRehearing Denied June 9, 1983.\\nEarl W. Roberts, City Sol. and Nelda Barrow Mickle, Asst. City Atty., for appellant.\\nEugene E. Olson of Connolly, O\\u2019Malley, Lillis & Hansen, Des Moines, for appellees.\\nJames E. Brick and Luis Herrera, Des Moines, for intervenors.\\nConsidered by REYNOLDSON, C.J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.\", \"word_count\": \"1787\", \"char_count\": \"11353\", \"text\": \"REYNOLDSON, Chief Justice.\\nPlaintiff City of Des Moines filed this certiorari action in district court, asserting the defendant Civil Service Commission (commission) was proceeding illegally in that it had no subject matter jurisdiction to consider the suspensions and terminations of two city employees, intervenors Wilbur Devine and Karl Schilling. Trial court annulled the writ it had issued, and the city appealed. We affirm in part, reverse in part, and remand.\\nDevine and Schilling were employed by the city as human rights specialists for the Human Rights Commission (HRC). October 2, 1981, both were \\\"suspended indefinitely pending further investigation.\\\" De-vine was suspended by HRC for alleged threats, insubordination, misconduct, sexual harassment, and violations of written departmental rules; Schilling for alleged sexual harassment, misconduct, and violations of written departmental rules. The HRC suspensions were affirmed by the city council.\\nOctober 22, 1981, Devine and Schilling filed notices of appeal from these suspensions. These notices were signed by their counsel. The city filed the statutory specification of charges and the appeals were set for hearings by the commission on November 12 and November 17, respectively. Both were continued, the Devine hearing at his counsel's request.\\nNovember 12, 1981, HRC \\\"terminated\\\" the employment of Devine and Schilling. This action was affirmed by the city council November 16, 1981.\\nDecember 10, 1981, the commission commenced hearing the Devine appeal. Counsel for Devine and Schilling opened the proceedings with a motion to amend their notices of appeal from their suspensions \\\"to include the subsequent decision of the City Council and the Human Rights Commission to make these . indefinite suspensions permanent, . that [the notices] be amended to include the final action that was taken.\\\" Counsel for the city resisted on the ground statutory law required a separate notice of appeal within twenty days of the discharge and that the motion was untimely. He consequently challenged the commission's jurisdiction. The commission granted the motion to amend.\\nAfter hearing the testimony of several witnesses, the commission continued the Devine hearing until December 14, 1981. On that day the city filed for and secured an ex parte writ of certiorari. The city alleged the commission was proceeding illegally and without jurisdiction because De-vine and Schilling had not personally signed their appeal notices, and because the employees were permitted to amend their notices and thus appeal from their discharges after the appeal time had expired. By separate order the court fixed bond and stayed further proceedings in the Devine and Schilling appeals.\\nDevine and Schilling intervened in the certiorari proceeding. Following hearing, district court held the attorney's signature on the notices of appeal was proper under Iowa Code section 400.21 (1981). The court further held it could not \\\"from the record before the Commission, determine whether the 'indefinite suspension' is in fact a 'termination' and whether the specifications of the charges and grounds for the 'indefinite suspension' are the same as those for the 'termination.' \\\" The court found that under the truncated record it could not conclude that the commission was proceeding without jurisdiction. It therefore annulled the writ, dismissed the petition, directed the city to file written specifications of the charges and grounds for the termination of the intervenors, and directed the commission to proceed with the hearing.\\nThe grounds the city relies on for reversal may be combined into two controlling issues: (1) Did the notices of appeal, signed only by counsel for Devine and Schilling, meet the requirement of Iowa Code section 400.21? (2) Did the commission err in sustaining Devine's and Schilling's motions to amend their notices of appeal?\\nI. Signatures to the Notices.\\nIowa Code section 400.21 provides in relevant part:\\nIf the appeal be taken by the person suspended, demoted, or discharged, notice thereof, signed by the appellant . shall be filed with the clerk of the commission. . .\\n(Emphasis added.)\\nThe notices of appeal from suspension were signed not by Devine and Schilling, but by their attorney. No one raised the section 400.21 signature requirement before the commission at the December 10 hearing. It was first raised in the city's petition for certiorari. The city there claimed, and contends here, this deviation is fatal and deprived the commission of jurisdiction to hear the appeals.\\nOf course a civil service commission reviewing an employee's suspension, demotion, or discharge is exercising appellate functions. See Iowa Code \\u00a7 400.20. \\\"Jurisdiction is unquestionably essential to the validity of any proceeding undertaken by a public administrative tribunal, without which its actions are void.\\\" Antrim v. Civil Service Commission of City of Des Moines, 261 Iowa 396, 401, 154 N.W.2d 711, 714 (1967). The commission's argument that the city should have objected to the signatures at some prior time is without merit. A challenge to subject matter jurisdiction may be raised at any stage of the proceeding. Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978); accord Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978).\\nThe statutory direction that the notice of appeal be signed by the appellant (rather than by his or her attorney if this is in fact the implication) rationally cannot be categorized as a duty essential to the main objective of the statute. It is therefore not mandatory, and the omission does not invalidate subsequent proceedings. See Taylor v. Department of Transportation, 260 N.W.2d 521, 522-23 (Iowa 1977). Because the provision is directory, and the city does not indicate how it was prejudiced by the attorney's signature on the notices rather than that of the appellants, the commission was not deprived of authority to hear the appeals. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982); see State v. Lohr, 266 N.W.2d 1, 6 (Iowa 1978).\\nOrdinarily, notice given by an attorney is the act of the client. 7 Am.Jur.2d Attorneys at Law \\u00a7 130 (1980); accord 7A C.J.S. Attorney and Client \\u00a7 196(b) (1980). Here Devine and Schilling both testified they had authorized their attorney to appeal. We think in the circumstances of this case this was sufficient, and the signing of the notices by the attorney was substantial compliance with the provisions of Iowa Code section 400.21. See Frost v. S.S. Kresge Co., 299 N.W.2d 646, 648 (Iowa 1980); Vermeer v. Sneller, 190 N.W.2d 389, 394-95 (Iowa 1971).\\nWe hold the commission had jurisdiction and authority to proceed with the hearing as it related to the intervenors' suspensions. As to this facet of the case, trial court correctly annulled the writ.\\nII. Amendment to the Notices.\\nIn relevant part Iowa Code section 400.20 provides:\\nIf there is an affirmance of the suspension, demotion, or discharge of any person holding civil service rights, he may, within twenty days thereafter, appeal therefrom to the civil service commission.\\nWe have noted the notices filed stated \\\"[t]he appeal is from an indefinite suspension.\\\" These appeals from the suspensions are not challenged. The problem arises because, more than twenty days after affirmance of the terminations of these employees, the commission granted Devine's and Schilling's oral motions to amend the notices to include an appeal from their discharges. Written amendments to the notices were filed December 14, 1981.\\nUnlike the departure from Iowa Code section 400.21 discussed in division I, our decisions hold the timely notice requirement of Iowa Code section 400.20 is mandatory and jurisdictional. Antrim v. Civil Service Commission, 261 Iowa at 400, 154 N.W.2d at 714; Wilson v. Stipp, 194 Iowa 346, 352, 189 N.W. 665, 667 (1922).\\nOn this appeal the employees shift ground somewhat from their position taken before the commission, where they moved to amend the notices to include their discharge, and argued it was their understanding, \\\"[tjhere was a suspension and discharge in this case . [the city] deliberately led us to believe that they wanted to combine the two hearings for efficiency.\\\" By arguments of counsel the employees implied this alleged understanding caused them to fail to give timely notices of appeal from the discharges. Counsel for the city vigorously denied there was any such understanding, or any discussion relating to it.\\nIn this appeal both the employees and the commission equate the initial \\\"indefinite suspension\\\" with a discharge, and rely on the notices as originally filed as timely and sufficient to preserve the discharge issue. We are not persuaded by this theory.\\nIt is plain that the legislature drafted Iowa Code section 400.20 to include three categories of appealable decisions: suspension, demotion, and discharge. The legislature drew no distinction between an indefinite suspension and a definite suspension. The line drawn is between a suspension and a discharge. For the arguments of the employees and the commission to be valid, the clause \\\"not including indefinite suspensions\\\" must be added to the word \\\"suspension\\\" as used in the statute. Such addition is prohibited by established rules of construction. E.g., State v. Hesford, 242 N.W.2d 256, 258 (Iowa 1976).\\nNor do we agree that Fetters v. Guth, 221 Iowa 359, 265 N.W. 625 (1936), supports the contention that an indefinite suspension must be treated as a discharge. The Fetters court merely observed the chief of police who disciplined Fetters used those terms interchangeably. This court did not equate an indefinite suspension with a discharge. We said the appeal before the commission was \\\"from the order of suspension\\\" but that the commission had an independent authority to order a discharge, under an antecedent statute to present Iowa Code section 400.18.\\nWe hold failure to file appeals from the discharges divested the commission of authority to hear the employees' appeals as to that action of the city. Trial court should have sustained the writ as to this portion of the proceedings before it, and remanded to the commission for disposition of the appeals from the suspensions. See Iowa R.Civ.P. 316.\\nWe have examined all the other arguments and issues raised by these litigants, and find they do not affect the result we reach here. Costs are taxed one-half to the city, one-fourth to the intervenors, and one-fourth to the commission. This case is remanded to district court for judgment in conformance with this opinion.\\nAFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\"}"

iowa/10673836.json

@@ -0,0 +1 @@
+"{\"id\": \"10673836\", \"name\": \"MID-COUNTRY MEATS, INC., Plaintiff-Appellant, v. WOODRUFF-EVANS CONSTRUCTION, Defendant-Appellee\", \"name_abbreviation\": \"Mid-Country Meats, Inc. v. Woodruff-Evans Construction\", \"decision_date\": \"1983-04-08\", \"docket_number\": \"No. 2-67205\", \"first_page\": \"332\", \"last_page\": \"337\", \"citations\": \"334 N.W.2d 332\", \"volume\": \"334\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:16:09.441494+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MID-COUNTRY MEATS, INC., Plaintiff-Appellant, v. WOODRUFF-EVANS CONSTRUCTION, Defendant-Appellee.\", \"head_matter\": \"MID-COUNTRY MEATS, INC., Plaintiff-Appellant, v. WOODRUFF-EVANS CONSTRUCTION, Defendant-Appellee.\\nNo. 2-67205.\\nCourt of Appeals of Iowa.\\nApril 8, 1983.\\nDon N. Kersten of Kersten, Opheim, Carlson & Trevino, Fort Dodge, for plaintiff-appellant.\\nWilliam S. Gibb of Johnson, Erb, Latham & Gibb, P.C., Fort Dodge, and Roy M. Irish of Patterson, Lorentzen, Duffield, Tim-mons, Irish & Becker, Des Moines, for defendant-appellee.\", \"word_count\": \"2539\", \"char_count\": \"15993\", \"text\": \"DONIELSON, Judge.\\nPlaintiff corporation appeals the dismissal of its petition alleging breach of a construction contract entered upon defendant contractor's motion for judgment notwithstanding the jury's failure to return a verdict after deliberating three days and remaining deadlocked in a four to four split vote on liability. On appeal the plaintiff contends that the trial court erred (1) by sustaining defendant's motion for judgment notwithstanding the jury's failure to return a verdict; (2) by refusing to give plaintiff's requested jury instructions regarding the applicable standard of care and negligence; (3) by refusing to give a portion of plaintiff's requested jury instruction regarding express warranty; (4) by limiting evidence and testimony regarding consequential damages resulting from allegedly lost profits and wasted overhead expenses; (5) by refusing to give plaintiff's requested jury instructions regarding consequential damages; (6) by instructing the jury that, as a matter of law, plaintiff had waived any claims for damages arising from defendant's failure to timely complete the construction; and (7) by sustaining defendant's motion for adjudication of law points and striking the express and implied warranty provisions contained in divisions II and III of plaintiff's petition. Plaintiff seeks a new trial. We reverse and remand.\\nOur scope of review is on assigned errors. Iowa R.App.P. 4.\\nI.\\nPlaintiff, Mid-Country Meats, Inc., produces various meats and sausage. In 1978 plaintiff entered into a contract with the defendant, Woodruff-Evans Construction Co., for the construction of a meat processing plant. The contract price was $643,828 with construction to be completed by November 1, 1978.\\nConstruction on the project was delayed for various reasons which the parties dispute, and the project was not completed by November 1st. Plaintiff initially agreed to a thirty-day extension of the contract. Subsequently, in late January 1979, plaintiff executed a waiver of any claim for damages against defendant arising from delay in completion of the building. On January 30,1979, plaintiff accepted the building, holding back $25,000 pending completion of certain details on the building.\\nAfter accepting the building, plaintiff commenced production. In late February, 1979, the dry room roof began leaking. A subcontractor attempted to remove snow from the roof, but this merely resulted in larger holes being torn in the roof. A large amount of pepperoni curing in the dry room began to mold and ultimately was destroyed. The plant closed on April 28,1979. The roof was finally completed in June, but the plant never reopened. Plaintiff asserted that loss of its product and the consequent inability to fulfill contracts completely destroyed its business, resulting in foreclosure and loss of all assets.\\nOn September 26, 1979, plaintiff filed a petition seeking $1,500,000 damages for defendant's alleged breach of contract, breach of implied warranty, breach of express warranty, and negligence. The case was subsequently tried to a jury. There was considerable testimony regarding the construction contract, the construction itself, and the circumstances surrounding plaintiff's acceptance of the building.\\nAfter deliberating for three days, the jury remained deadlocked at a 4 to 4 vote and was released. Defendant then filed a motion pursuant to Iowa Rule of Civil Procedure 243 for judgment notwithstanding the jury's failure to return a verdict, asserting that the evidence was insufficient as a matter of law to prov.e either breach of contract or damages related thereto. Trial court subsequently sustained the motion and entered judgment for defendant. The court concluded that plaintiff accepted the building knowing the roof had not been completed and would not be completed until spring when the work could be properly done. Plaintiff then instituted this appeal.\\nII.\\nThe plaintiff's first contention is that the trial court erred in granting defendant's motion for judgment notwithstanding the jury's failure to return a verdict. We must agree with plaintiffs.\\nOur review of this issue is limited to the grounds urged in defendant's earlier motion for directed verdict since a motion for judgment notwithstanding the verdict must stand or fall on the grounds asserted in the motion for directed verdict. Meeker v. City of Clinton, 259 N.W.2d 822, 827-27 (Iowa 1977). The defendant's motion for directed verdict was predicated on the claim that the evidence was insufficient to submit the issues of breach of contract or negligence to the jury. In determining whether the trial court correctly ruled on this issue, we view the evidence in accordance with the same principles which govern the trial court's decision:\\nIn determining whether a jury question was engendered when a party seeks a directed verdict, dismissal, or judgment notwithstanding the verdict, the trial court views the evidence in the light most favorable to the party against whom the motion was made regardless of whether such evidence is contradicted and every legitimate inference which may be reasonably deducted therefrom must be carried to the aid of the evidence and if reasonable minds can differ on the issue it is for the jury. Schiltz v. Cullen-Schiltz & Assoc., Inc., 228 N.W.2d 10, 17 (Iowa 1975).\\nOur function is to review the evidence to determine, not whether it proves defendants' negligente] . . but whether it is sufficient so the trial court was justified in submitting the question to the jury as the trier of facts. Miller v. Young, 168 N.W.2d [45, 51 (Iowa 1969)].\\nMeeker, 259 N.W.2d at 828.\\nPlaintiff claimed, in its petition, that the building was not completed according to contract specifications and that the construction was not timely completed. It also claims that defendant constructed the building negligently, causing the roof to leak which, in turn, caused the meat to spoil. The trial court had instructed the jury that, as a matter of law, plaintiff had waived any claims for damages arising from defendant's failure to timely complete the construction, despite plaintiff's arguments that the alleged waiver was without knowledge of all the relevant facts. Plaintiffs also assert that, prior to accepting the building, the defendant assured plaintiff that the roof was weatherproof. The defendant disagrees and contends that the parties were aware that the roof bf the dry room was not completed when the plaintiff took the building and began production.\\nIn its ruling on defendant's motion for judgment notwithstanding the jury's failure to return a verdict, the court ruled that there was not sufficient evidence to show a breach of contract by defendant. Specifically, the court ruled that plaintiff accepted the building with full knowledge that the roof had not been completed and that the construction was properly completed in the spring. The court did not specifically address the other theories urged by plaintiff in its petition or the other matters urged by defendant in its motion. We therefore consider the matters urged by defendant in its. motion for directed verdict in the light most favorable to plaintiff. Having done so, we find that the theories of negligence and breach of contract present issues more properly resolved by the jury. The fact that the impaneled jury remained deadlocked in a four to four split on the question of liability is strong evidence that reasonable minds can differ on the issues presented by the facts of this case. Iowa Rule of Civil Procedure 200 provides in part, that the court may discharge a jury \\\"if they have deliberated until it satisfactorily appears that they cannot agree. The case shall be retried immediately or at a future time, as the court directs.\\\" We believe the court erred in deciding the case under a motion for judgment notwithstanding the verdict instead of remanding the case pursuant to rule 200.\\nNevertheless, we do not believe the theories of implied or express warranty may be entertained in the retrial of this case. It appears from the record that on July 16, 1980, defendant filed a motion for adjudication of law points, alleging that the implied and express warranty claims set out in divisions II and III of plaintiffs petition therefore failed to state the cause of action. Plaintiff filed a resistance to the motion, and trial court subsequently sustained the motion and struck divisions II and III from the petition. The affidavit of defendant's trial attorney and the trial judge indicate that, in fact, plaintiff's trial attorney agreed to the dismissal of divisions II and III of plaintiff's petition dealing with implied and express warranties. We believe the court correctly struck these portions of the petition. It is clear that plaintiff chose not to rely on these theories in the trial below and, therefore, it is prohibited from doing so on remand. We thus reverse and remand for a new trial on the theories of breach of contract and negligence.\\nIII.\\nIn an effort to facilitate a proper retrial of this cause we address one additional matter raised by plaintiff regarding jury instructions. Plaintiff asserts that the court erred in refusing to give plaintiff's requested jury instructions regarding recovery for negligence and various elements of damages and consequential damages, including loss of profits. It is well established that a contract may give rise to a duty, the breach of which may be tortious. M & W Farm Service Co. v. Gallison, 285 N.W.2d 271, 276 (Iowa 1979). Whether the contract establishes such a duty of care is a question of law for the courts to decide. Id. It has also been held that there is an implied duty to perform construction contract work with due care. Busker v. Sokolowski, 203 N.W.2d 301, 303 (Iowa 1972). Negligent construction under a contract may also amount to a breach of the contract. See Metropolitan Transfer Station Inc. v. Design Structures Inc., et a1, 328 N.W.2d 532, 538 (Iowa App.1982). Here the court did not specifically address the issue of negligence in its ruling on defendant's motion notwithstanding the verdict. However, the court had refused to give plaintiff's requested jury instruction numbers 12,13 and 14, which were Iowa uniform instruction numbers 2.1, 2.6 and 2.18 regarding recovery for negligence. The general rule governing this issue was set forth in Anderson v. Low Rent Housing Commission, et a 1, 304 N.W.2d 239, 249 (Iowa 1981) as follows:\\nParties to a lawsuit have a right to have their legal theories submitted to the jury as long as they are supported by the pleadings and substantial evidence. Lockard v. Carson, 287 N.W.2d 871, 875 (Iowa 1980). Even when the evidence is not in dispute, it is viewed in the light most favorable to the party requesting the instruction, and if reasonable minds might draw different inferences from the evidence a jury question is engendered. See Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739, 744 (Iowa 1977).\\nSince plaintiff pleaded negligence we need only determine whether substantial evidence existed to engender a jury question on the issue. We note that more than a mere scintilla of evidence is required in order for the court to give the instruction to the jury. Hamilton v. Luckey, 315 N.W.2d 823, 826 (Iowa App.1981). Plaintiff asserts that defendant negligently constructed the roof during an improper time of year causing the roof to leak, and failed to timely and appropriately repair the leak once it had been discovered. We believe that defendant had a duty to perform the contract with due care and that plaintiff introduced sufficient substantial evidence to engender a jury question on whether defendant breached that duty. Accordingly, the instructions regarding plaintiff's negligence claim should be submitted to the jury.\\nThe court also refused to admit evidence and to instruct the jury on consequential damages under either the breach of contract or negligence theories. Plaintiff's accountant, Henry Karp, attempted to testify regarding consequential damages allegedly suffered by plaintiff. However, defendant's objections to Karp's testimony were sustained on grounds that the evidence was irrelevant and concerned an improper measure of damages. In a subsequent offer of proof, Karp testified regarding the amount of money spent by plaintiff in constructing and starting up the meat plant, and the expected profits plaintiff allegedly would lose.\\nThe established rule of Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Rep. 145 (1854), requires that consequential damages be reasonably foreseeable to be recovered in a breach of contract action. See also Meyer v. Nottger, 241 N.W.2d 911, 920 (Iowa 1976); DeWaay v. Muhr, 160 N.W.2d 454, 458-59 (Iowa 1968); Walker Manufacturing Co. v. Henkel Construction Co., 346 F.Supp. 621, 635 (N.D.Iowa 1972). Lost profits may be recovered as consequential damages so long as the profits are not based on conjecture and speculation. Shinrone, Inc. v. Tasco, Inc., 283 N.W.2d 280, 284-86 (Iowa 1979). Plaintiff's proffered testimony included matters relevant to whether the claimed lost profits were speculative. The fact that plaintiffs business was relatively new would not, in and of itself, require that evidence of lost profits be excluded since such profits may be awarded where evidence demonstrates its feasibility. See Lakota Girl Scout Co. Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634, 640 (8th Cir.1975). Plaintiff also sought to introduce evidence of expenditures made in reliance on the proper performance of the contract. These expenditures have been awarded as an element of consequential damages. See C.C. Hauff Hardware, Inc. v. Long Manufacturing Co., 260 Iowa 30, 34, 148 N.W.2d 425, 428 (1967). We believe plaintiff should have been allowed to introduce evidence of the damages it allegedly suffered as a result of defendant's alleged breach or negligence in performance of the contract. Under the principles set forth above, we also find sufficient evidence of consequential damages to support the giving of plaintiff's requested instructions relating to damages. We note, however, that since the theories of express or implied warranties were expressly removed from consideration at trial, no instructions under these theories were warranted.\\nOne final matter relating to the trial court's jury instructions is necessary. The court instructed the jury that, as a matter of law, plaintiff waived any claim for damages arising from delays in completing the construction. Whether there has been a voluntary relinquishment of a known right is a question of fact. Jones v. City of Des Moines, 225 Iowa 1342, 1346, 283 N.W. 924, 926 (1939). Here plaintiff argued that their agreement not to pursue damages due to the late construction was based on their belief that the roof was waterproof and ready for use. They thus argue that any alleged waiver was not made with full knowledge of all the circumstances. While we do not mean to intimate that the waiver was, in fact, valid, we believe this question is one of fact which should be put to the jury. It is error for the court, in giving jury instructions, to assume as true a matter which is dispute in the evidence. Mongar v. Barnard, 248 Iowa 899, 914, 82 N.W.2d 765, 775 (1957). Accordingly, we believe it was error for the court to instruct the jury that, as a matter of law, plaintiff had waived all damages arising from the late construction.\\nWe thus remand for a new trial in a manner consistent with the above principles.\\nREVERSED AND REMANDED.\"}"

iowa/10677620.json

@@ -0,0 +1 @@
+"{\"id\": \"10677620\", \"name\": \"David John FRANCIS, Appellant, v. FARMERS CASUALTY CO. (MUTUAL), Appellee\", \"name_abbreviation\": \"Francis v. Farmer Casualty Co.\", \"decision_date\": \"1982-05-19\", \"docket_number\": \"No. 66582\", \"first_page\": \"273\", \"last_page\": \"275\", \"citations\": \"319 N.W.2d 273\", \"volume\": \"319\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:17:11.187685+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C. J., and LeGRAND, HARRIS, McCORMICK, and ALLBEE, JJ.\", \"parties\": \"David John FRANCIS, Appellant, v. FARMERS CASUALTY CO. (MUTUAL), Appellee.\", \"head_matter\": \"David John FRANCIS, Appellant, v. FARMERS CASUALTY CO. (MUTUAL), Appellee.\\nNo. 66582.\\nSupreme Court of Iowa.\\nMay 19, 1982.\\nH. Alan Bowers of Baird, Bowers, Oliver & Olson, Des Moines, for appellant.\\nRoy M. Irish of Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellee.\\nConsidered by REYNOLDSON, C. J., and LeGRAND, HARRIS, McCORMICK, and ALLBEE, JJ.\", \"word_count\": \"836\", \"char_count\": \"5198\", \"text\": \"HARRIS, Justice.\\nPlaintiff, at all material times, had a comprehensive family automobile insurance policy with defendant. He sold an automobile covered by the policy but, for want of a safety inspection certificate, the transfer of the ownership was not effected. See Sullivan v. Skeie Pontiac, Inc., 270 N.W.2d 814, 818 (Iowa 1978). Accordingly, when the vehicle was later involved in an accident plaintiff was sued in a separate tort action. He brought this declaratory judgment suit seeking coverage for the accident under his policy. We think the trial court was right in declining relief.\\nWhen plaintiff sold the automobile, he was paid in full and surrendered it to the buyer. He signed a certificate of title and gave it, along with the registration certificate, to the buyer. Neither the plaintiff nor the buyer, however, ever obtained a safety inspection certificate demanded by section 321.238, The Code 1979. Plaintiff had no further contact with either the vehicle or buyer. It was the buyer who was driving the vehicle when it was involved in a collision with a motorcycle. Both riders of the motorcycle died as a result of the accident.\\nPlaintiff has been named as defendant in two wrongful death suits based on his retained ownership and responsibilities under section 321.493 which, under our holding in Sullivan, are claimed to flow from his failure to comply with section 321.238, The Code. The controlling question here is whether plaintiff is covered by the \\\"non-owned automobile\\\" provision of his policy. The provisions of the policy are:\\nTo pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:\\nA. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called \\\"bodily injury,\\\" sustained by any person;\\narising out of the ownership, maintenance or use of the owned automobile or any nonowned automobile and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy . PERSONS INSURED .\\n(b) with respect to a nonowned automobile,\\n(1) the named insured\\n[DEFINITIONS Under Part I]:\\n\\\"nonowned automobile\\\" means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile .\\n(Emphasis added).\\nPlaintiff has two interrelated hurdles to clear. First, the vehicle in question must qualify as nonowned. Second, there must be a showing of the insured's infrequent and irregular use of the automobile. The second hurdle is a part of the definition of the first hurdle. The record here does not show the first hurdle was cleared and conclusively shows the second hurdle was not cleared.\\nPlaintiff cannot show he is covered for the accident under the nonowned automobile provisions of the policy. The policy's own definition of the term \\\"non-owned automobile\\\" will control unless it is ambiguous. Iowa R.App.P. 14(f)(14). And \\\". . . the mere fact that parties disagree on the meaning of a phrase does not establish ambiguity for purposes of this rule. [Authority.] The test is an objective one: Is the language fairly susceptible to two interpretations? [Authority.]\\\" Farm Bureau Mut. Ins. Co. v. Sandbulte, 302 N.W.2d 104, 108 (Iowa 1981), (emphasis in original).\\nWe look to the policy, not the statute, for the definition. Allstate Insurance Company v. Chinn, 271 Cal.App.2d 274, 76 Cal. Rptr. 264, 266 (Cal.App.1969). The question is not the one we answered in Sullivan v. Skeie Pontiac, supra : did plaintiff still hold ownership responsibilities for the vehicle after the ineffective sale? The question here is whether the vehicle, by reason of its ownership retention under Sullivan, became a \\\"nonowned automobile\\\" under the policy. We are convinced it did not. Such a result was not the intention, and could not have been a reasonable expectation, of the parties:\\nThe purpose of a nonownership clause, such as the one in question, is to provide the insured with coverage while the insured is engaged in the occasional or infrequent use of an automobile other than the one specified in the policy, but not to provide liability coverage in regard to unspecified automobiles which are furnished or available for the insured's frequent or regular use. [Authorities.]\\nWaggoner v. Wilson, 31 Colo.App. 518, 521-22, 507 P.2d 482, 484 (1972).\\nThe record conclusively shows plaintiff's failure at the second hurdle. After its sale the vehicle was in no way furnished for infrequent or irregular use to the plaintiff. He had nothing to do with the automobile, never drove it, presumably never saw it.\\nThis is a risk which the defendant never undertook under the policy. The trial court was right in so holding.\\nAFFIRMED.\"}"

iowa/10681068.json

@@ -0,0 +1 @@
+"{\"id\": \"10681068\", \"name\": \"STATE of Iowa, Plaintiff-Appellee, v. David HUNGERFORD, Defendant-Appellant\", \"name_abbreviation\": \"State v. Hungerford\", \"decision_date\": \"1981-09-29\", \"docket_number\": \"No. 63845\", \"first_page\": \"699\", \"last_page\": \"701\", \"citations\": \"311 N.W.2d 699\", \"volume\": \"311\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:53:43.746853+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.\", \"parties\": \"STATE of Iowa, Plaintiff-Appellee, v. David HUNGERFORD, Defendant-Appellant.\", \"head_matter\": \"STATE of Iowa, Plaintiff-Appellee, v. David HUNGERFORD, Defendant-Appellant.\\nNo. 63845.\\nCourt of Appeals of Iowa.\\nSept. 29, 1981.\\nRichard E. Mundy, Cedar Rapids, for defendant-appellant.\\nThomas J. Miller, Atty. Gen. and Thomas N. Martin, Asst. Atty. Gen., for plaintiff-appellee.\\nSubmitted to OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.\", \"word_count\": \"634\", \"char_count\": \"3831\", \"text\": \"PER CURIAM.\\nDefendant appeals from judgment and sentence imposed upon conviction of the offenses of possession of burglary tools, possession of a controlled substance with intent to deliver, and possession of a firearm by a felon, in violation of sections 713.4, 204.-401(1), and 724.26, The Code. AH' issues argued on appeal relate to the admissibility of certain evidence seized by police officers from a van in which defendant had been riding as a passenger. The trial court determined that defendant lacked standing to attack the legality of the search of the interior of the van which he did not claim to own when he also did not claim to own the items seized. In the alternative, the trial court found that the search was justified on the grounds of probable cause (gleaned from a plain view examination) and exigent circumstances. The trial court further found that the original stopping of the van was pursuant to a valid investigatory stop. On appeal, defendant asserts that a) based upon what was visible to the officers from the place where they were legally entitled to be, probable cause was lacking for a search of the van, and b) defendant was placed under arrest prior to the search without probable cause and that the fruits of the search were the products of that illegal arrest.\\nConsidering these arguments in inverse order, we first conclude that even if defendant's arrest was completed without probable cause, the fruits of the search were not the product of the invasion of defendant's own liberty. Such fruits were instead the product of the subsequent search of the van. The only items seized which depended in any way on defendant's arrest were suppressed by the trial court.\\nAs to the search of the van, the trial court properly found that it was not a violation of defendant's fourth amendment right based upon the concept of personal standing to assert fourth amendment claims established in Rakas v. Illinois, 439 U.S. 128, 131, 99 S.Ct. 421, 423, 58 L.Ed.2d 387, 393 (1978). See also State v. Sanders, 282 N.W.2d 770 (Iowa App.1979). Therefore, defendant's claim based on the assertion that the search was without probable cause is of no consequence because even if such were found to' be the case, it would not afford him any ground to suppress the evidence. Rakus, 439 U.S. at 131, 99 S.Ct. at 423, 58 L.Ed.2d at 393.\\nIn making this determination, we recognize that one of the offenses charged, possession of a controlled substance with intent to deliver, is of the type formerly believed to confer automatic standing. Sanders, 282 N.W.2d at 772. Such is no longer the case since the Supreme Court's decision in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Because defendant's suppression motion is predicated solely on federal constitutional grounds, that decision is controlling.\\nWe have considered all issues presented and find no ground for reversal.\\nAFFIRMED.\\n. We do not find in defendant's argument any challenge to the correctness of trial court's finding upholding the investigatory stop, nor do we believe from our review of the record that such a challenge would be successful.\\n. The test is whether granting the establishment of the illegal arrest \\\"the evidence to which instant objection is made has been come at by exploitation of that illegality.\\\" Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963).\\n.These were items taken from defendant's pockets.\"}"

iowa/10683039.json

@@ -0,0 +1 @@
+"{\"id\": \"10683039\", \"name\": \"CATERPILLAR DAVENPORT EMPLOYEES CREDIT UNION, a credit union chartered under the laws of the State of Iowa, Appellant, v. Thomas H. HUSTON, Iowa Superintendent of Banking, Appellee\", \"name_abbreviation\": \"Caterpillar Davenport EmployEes Credit Union v. Huston\", \"decision_date\": \"1980-05-21\", \"docket_number\": \"No. 62417\", \"first_page\": \"393\", \"last_page\": \"397\", \"citations\": \"292 N.W.2d 393\", \"volume\": \"292\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:12:08.975274+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C.J., and LeGRAND, UHLENHOPP, ALLBEE, and LARSON, JJ.\", \"parties\": \"CATERPILLAR DAVENPORT EMPLOYEES CREDIT UNION, a credit union chartered under the laws of the State of Iowa, Appellant, v. Thomas H. HUSTON, Iowa Superintendent of Banking, Appellee.\", \"head_matter\": \"CATERPILLAR DAVENPORT EMPLOYEES CREDIT UNION, a credit union chartered under the laws of the State of Iowa, Appellant, v. Thomas H. HUSTON, Iowa Superintendent of Banking, Appellee.\\nNo. 62417.\\nSupreme Court of Iowa.\\nMay 21, 1980.\\nJohn S. Gosma of Rehling, Lindburg & Gosma, Davenport, for appellant.\\nThomas J. Miller, Atty. Gen., and Elizabeth A. Nolan and Steven G. Norby, Asst. Attys. Gen., for appellee.\\nConsidered by REYNOLDSON, C.J., and LeGRAND, UHLENHOPP, ALLBEE, and LARSON, JJ.\", \"word_count\": \"1685\", \"char_count\": \"10482\", \"text\": \"REYNOLDSON, Chief Justice.\\nThe fighting issue in this case is whether Iowa statutes permit an Iowa credit union to merge with an Illinois credit union when the merger plan provides that the surviving Illinois union shall operate a branch office in Iowa. Petitioner-appellant Caterpillar Davenport Employees Credit Union (Iowa Credit Union) sought judicial review of an Iowa Superintendent of Banking decision which disapproved the Iowa Credit Union's proposed merger with Caterpillar Employees Credit Union (Illinois Credit Union). The district court affirmed, and the Iowa Credit Union appeals. We affirm.\\nThe facts are not in dispute. The Iowa Credit Union is organized under the laws of Iowa with its principal place of business in Scott County. The Illinois Credit Union is organized under Illinois law. Its principal office is in Peoria, Illinois. These two unions devised a plan for the Iowa Credit Union to merge into the Illinois Credit Union under section 533.30, The Code 1977, which relevantly provides:\\n1. A credit union may, with the approval of the superintendent of banking, merge with another credit union under the existing organization of the other credit union pursuant to a plan agreed upon by the majority of the board of directors of each credit union joining in the merger and approved by the affirmative vote of a majority of the members of the merging credit unions.\\n5. This section shall be construed to permit a credit union organized under any other statute to merge with one organized under this chapter, or to permit one organized under this chapter to merge with one organized under any other statute.\\nThe merger plan, approved by the boards of directors and a majority of members of each union, provided for the Illinois Credit Union to be the successor organization, and that it should \\\"continue the operation of the present office of [Iowa Credit Union] in the Caterpillar Tractor Co., manufacturing fa cility located in the Davenport/Mount Joy, Iowa 52809, area as a[n Illinois Credit Union] branch office.\\\"\\nIn disapproving the plan, respondent Iowa Superintendent of Banking ruled that the contemplated Iowa branch office would violate section 533.3, The Code 1977, which provides in part:\\nNo person, firm, corporation, copart-nership, or association, except a credit union organized under the provisions of this chapter or under the federal credit union Act [12 U.S.C. \\u00a7 1751 et seq.] or except the Iowa credit union league, incorporated, or chapters of said league, shall use a name or title containing , the words \\\"credit union\\\" or any derivation thereof or shall represent themselves, in their advertising or otherwise, as conducting business as a credit union.\\nThe district court agreed with the Superintendent's application of this statute. Statutory references which follow relate to the 1977 Code unless otherwise indicated.\\nThe Iowa Credit Union argues district court erred (1) because section 533.3 was amended by implication with the 1975 enactment of section 533.30; and (2) in any event, the surviving Illinois Credit Union would be \\\"a credit union organized under the provisions of [code chapter 533]\\\" and thus its Iowa branch office would not violate section 533.3.\\nI. Scope of review.\\nThis proceeding was brought in district court for judicial review of final administrative action under section 17A, The Code. See \\u00a7 17A.19-.20. Our scope of review was delineated in Jackson County Public Hospital v. Public Employment Relations Board, 280 N.W.2d 426, 429-30 (Iowa 1979):\\n[T]his court's duty, under the IAPA, is to correct errors of law made by the district court.\\nThus, when this court reviews a decision of a district court rendered pursuant to section 17A.19, the sole question is whether the district court correctly applied the law. In order to make that determination, this court applies the standards of section 17A.19(8) to the agency action to determine whether this court's conclusions are the same as those of the district court. If the conclusions are the same, affirmance is in order. If they are not, reversal may be required.\\nAccord, Briggs v. Board of Directors, 282 N.W.2d 740, 743 (Iowa 1979).\\nII. Does section 533.30 by implication amend section 533.3?\\nIn enacting section 533.30, quoted above, the 1975 legislature struck a prior section which permitted a consolidation of credit unions only between \\\"two or more credit unions organized under the laws of the state of Iowa.\\\" See \\u00a7 533.30, The Code 1975. The substitute statute, in subsection 5, provides it \\\"shall be construed to permit a credit union organized under any other statute to merge with one organized under this chapter [533], or to permit one organized under this chapter to merge with one organized under any other statute.\\\" See \\u00a7 533.30, The Code 1977.\\nThe Iowa Credit Union points out that, after such a merger with a foreign union, \\\"The rights and privileges of the members of the merged credit union shall remain intact.\\\" \\u00a7 533.30(4), The Code. From this it reasons that one of the basic rights and privileges of an Iowa credit union member \\\"is to go to the office of the [merged] credit union [in Iowa] to transact his business.\\\" The Iowa Credit Union asserts this is consistent with the plain legislative intent and a contrary construction would make sections 533.3 and 533.30 repugnant and irreconcilable. This being so, section 533.30, the most recent and special enactment, must prevail. Section 533.3 must be considered as amended by implication and considered inapplicable where there has been a section 533.30 merger.\\nWe are not so persuaded. The implied powers claimed by the Iowa Credit Union for the contemplated surviving union plunge beyond the parameters we fixed in Iowa Credit Union League v. Iowa Department of Banking, 268 N.W.2d 165, 171 (Iowa 1978):\\n[Financial institutions, such as credit unions and banks, are organizations of enumerated powers. Since the operation of financial institutions is fraught with hazards to the public, such institutions have only the authority they are given. They cannot operate on the basis that they can proceed with a new function unless it is forbidden; they must show that it is within the intendment of their statute\\u2014 either granted by the statute in express terms or necessary or requisite to a granted power.\\n(Emphasis added and in original.)\\nAmendments by implication are not favored, and if possible statutes will be construed so as to be consistent with each other. State v. Rauhauser, 272 N.W.2d 432, 434 (Iowa 1978); see Lineberger v. Bagley, 231 Iowa 937, 942, 2 N.W.2d 305, 308 (1942); 1A A. Sutherland, Statutes and Statutory Construction \\u00a7 22.13, at 139 (4th ed. C. Sands 1972). There is nothing in section 533.3 which prohibits the merger of an Iowa credit union into a foreign or federal credit union under section 533.30. It simply prohibits a foreign credit union from using the designation \\\"credit union\\\" or representing itself as conducting such a business in Iowa. There may be many reasons for an Iowa credit union to merge into a foreign credit union \\u2014 for example, when an industry relocates \\u2014 but such a transformation cannot furnish such justification for a foreign credit union to operate in Iowa that section 533.3 must be deemed amended by implication.\\nIII. Would the surviving Illinois Credit Union be \\\"organized\\\" under chapter 533, The Code?\\nBy its terms the section 533.3 prohibition does not apply to \\\"a credit union organized under the provisions of this chapter [533].\\\"\\nThe Iowa Credit Union argues as an alternative to those grounds discussed in divi-si\\u00f3n II that the merged Illinois Credit Union would be exempt from section 533.3 as \\\"organized\\\" under chapter 533 and therefore could legally operate an Iowa'branch office. It asserts \\\"the surviving credit union exists and operates within the clearly expressed statutory merger framework of Section 533.30\\\" and because it so operates, it in fact has been \\\"organized\\\" under chapter 533 provisions.\\nIn its affirmance the district court found the union's rationale was negatived by the language of section 533.30(5), quoted above, which refers to merger of unions \\\"organized\\\" under chapter 533 with unions \\\"organized\\\" under any other statute. Section 533.1 details how a credit union is organized by incorporation in Iowa.\\nDecisions from other jurisdictions support the district court's analysis. Generally, \\\"organized\\\" is interpreted to mean incorporated and not \\\"operated.\\\" Sun-Herald Corp. v. Duggan, 73 F.2d 298, 300 (2d Cir. 1934), cert. denied, 294 U.S. 719, 79 L.Ed. 1251, 55 S.Ct. 546 (1935). \\\"Organized\\\" ordinarily is descriptive of the creation of the corporation in question. Murphy v. Washington American League Base Ball Club, Inc., 167 F.Supp. 215, 218 (D.D.C.1958), aff'd per curiam, 267 F.2d 655 (D.C.Cir.), cert. denied, 361 U.S. 837, 80 S.Ct. 89, 4 L.Ed.2d 77 (1959).\\nBingham v. Savings Investment & Trust Co., 101 N.J.Eq. 413, 420-21, 138 A. 659, 661-62 (Ch.1927), aff'd, 102 N.J.Eq. 302, 140 A. 321 (N.J.1928), relied on by the union, is factually distinguishable. Although it does equate the term \\\"organized\\\" with \\\"operating\\\" rather than \\\"created,\\\" it involved the merger of a trust company and a bank, both New Jersey organizations. The trust company had been organized under a statute subsequently repealed, but operated under the new enactment, pursuant to its terms. The merger-authorizing legislation permitted merger of companies \\\"organized\\\" under the subsequent enactment. It was in those circumstances the New Jersey court equated \\\"operating\\\" with \\\"organized.\\\" That rationale has no application here.\\nWe hold district court was right in ruling that the surviving credit union of the proposed merger would not be a union \\\"organized\\\" under the provisions of chapter 533. The section 533.3 prohibition is applicable and the Illinois Credit Union could not legally operate a branch office in Iowa.\\nWe affirm the district court decision.\\nAFFIRMED.\\n. 1975 Session, 66th G.A., ch. 241, \\u00a7 15.\"}"

iowa/10685366.json

@@ -0,0 +1 @@
+"{\"id\": \"10685366\", \"name\": \"STATE of Iowa, Appellee, v. Wade Allen WRAGE, Appellant\", \"name_abbreviation\": \"State v. Wrage\", \"decision_date\": \"1979-05-30\", \"docket_number\": \"No. 62408\", \"first_page\": \"4\", \"last_page\": \"7\", \"citations\": \"279 N.W.2d 4\", \"volume\": \"279\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:09:53.040442+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C. J., and LeGRAND, HARRIS, ALLBEE, and LARSON, JJ.\", \"parties\": \"STATE of Iowa, Appellee, v. Wade Allen WRAGE, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. Wade Allen WRAGE, Appellant.\\nNo. 62408.\\nSupreme Court of Iowa.\\nMay 30, 1979.\\nWalter W. Rothschild, Waterloo, for appellant.\\nThomas J. Miller, Atty. Gen., and Ann Fitzgibbons, Asst. Atty. Gen., for appellee.\\nConsidered by REYNOLDSON, C. J., and LeGRAND, HARRIS, ALLBEE, and LARSON, JJ.\", \"word_count\": \"1637\", \"char_count\": \"9506\", \"text\": \"HARRIS, Justice.\\nMust the same judge who imposed sentence be the one who reconsiders it under \\u00a7 903.2, The Code, 1979? We think not and accordingly affirm the trial court.\\nCompanion sections for so-called \\\"shock probation\\\" were enacted as a part of the 1977 criminal code revision. This suit involves \\u00a7 903.2 (reconsideration of misde-meanant's sentence). The section provides:\\nFor a period of thirty days from the date when a person convicted of a misdemeanor begins to serve a sentence of confinement, the court may order the person to be returned to the court, at which time the court may review its previous action and reaffirm it or substitute for it any sentence permitted by law. The court's final order in any such proceeding shall be delivered to the defendant personally or by certified mail. Such action is discretionary with the court and its decision to take such action or not to take such action is not subject to appeal. The provisions of this section notwithstanding, for the purposes of appeal a judgment of conviction is a final judgment when pronounced.\\nA companion statute, \\u00a7 902.4, The Code, 1979, provides for reconsideration of a felon's sentence.\\nWade Allen Wrage (defendant) pled guilty to operating a vehicle without the owner's consent, an aggravated misdemean- or under \\u00a7 714.7, The Code, 1979. Thereafter Judge Peter Van Metre, presiding as the trial court, sentenced defendant to 180 days in the Black Hawk County jail.\\nThe following week defendant moved to have his sentence reconsidered under \\u00a7 903.-2. The next day the trial court, Judge Dennis D. Damsgaard presiding, denied the motion. This appeal is from that denial. Defendant's sole contention on appeal is that it was error for any judge, other than the one who sentenced him, to act on his motion to reconsider.\\nI. The State suggests three alternative reasons why we should not reach the merits of defendant's contention.\\nFirst, the State points to the language in \\u00a7 903.2 which makes trial court orders discretionary and not appealable. Here the State misapprehends defendant's contention. The defendant does not directly question whether shock probation should or should not have been granted. Rather, the defendant urges that the decision of the trial court was a nullity because it was entered by the wrong judge. The discretionary nature of the trial court's authority under this section is no reason why we should not reach the merits of the defendant's contention.\\nThe State next argues that relief under this section cannot be granted upon motion because the section does not expressly provide for an application. But we think the section does not indicate the court must act sua sponte or not at all. We know of no rule which prohibits parties from applying to courts for appropriate relief. It would be an absurd rule which would strip the court of authority to act merely because it occurred to a party to suggest it.\\nFor its final reason why we should not reach the merits of defendant's contention, the State argues that the motion was premature. Defendant had not begun to serve his sentence when he moved that it be reconsidered. The State suggests there was no way for trial court to order him returned for reconsideration until he was serving. But we find no prohibition against filing the application before the sentence was being served.\\nHaving rejected all three of the State's threshold arguments we turn to.the merits.\\nII. In defendant's view, the power to reconsider sentences under \\u00a7 903.2 is vested exclusively in the judge who imposed the sentence. He argues that practical necessity supports his view because chaos would otherwise ensue. The defendant believes that rejection of his interpretation would result in judges reviewing one another's sentences. This would in thrn invite disharmony among judges, forum shopping, and disparity of punishment.\\nDefendant relies on Dunkelbarger v. Myers, 211 Iowa 512, 233 N.W. 744 (1930), in which a case was dismissed by one judge for failure to prosecute after it had been taken under advisement by another judge. In holding the dismissal was a nullity, we said:.\\nGenerally speaking, where there are several judges holding court at the same place at the same time, the action of any one of them in matters before him is the action of the court. But we have here a condition where a case was duly assigned, tried, and submitted to one judge and he took such case under advisement. In so doing we think he excluded all other judges in his district from making any orders which in any way would affect the substantial rights of the parties, or which would in any way interfere with . final disposition of the case.\\n211 Iowa at 515, 233 N.W. at 745.\\nBut the holding in Dunkelbarger was limited to its facts: dismissal of the case by one judge while it was under submission to another judge. It is not authority for the contention that any judicial determination in a case by one judge divests all other judges of authority to act on other matters in the same case. In the present case the act of Judge Damsgaard in no way interfered with anything under submission to Judge Van Metre. Dunkelbarger is not in point.\\nDefendant also relies on Central Savings & Loan Association v. Gaumer, 167 N.W.2d 656 (Iowa 1969), in which we held a party cannot resubmit a previously denied motion for summary judgment in the hope of getting a better result from a different judge. The present case does not involve resubmission of a matter already ruled upon. Wrage's motion for reconsideration had not been denied nor even submitted to any other judge.\\nPast cases have clearly distinguished the institution of the court from the office of a judge. For example we have said: \\\"A 'judge' is not necessarily a 'court,' although a 'court' necessarily includes a 'judge.' \\\" Salinger v. Telegraph Co., 147 Iowa 484, 492, 126 N.W. 362, 365 (1910).\\nSeveral of our cases have shown there is nothing personally exclusive to the function of a particular judge who acts as a court in a given case. In Renner Bros. v. Thornburg, 111 Iowa 515, 522, 82 N.W. 950, 952 (1900), we found no error where one judge withdrew an erroneous instruction from a jury at the direction of another judge who had presided over trial of the case. In State v. Jones, 115 Iowa 113, 120-121, 88 N.W. 196, 198 (1901), we rejected a complaint that a defendant who had been tried and convicted before one judge should not have been sentenced by another. In State v. Kulish, 260 Iowa 138, 144, 148 N.W.2d 428, 432-433 (1967), we held the same where the conviction was by a guilty plea. In Sloanaker v. Howerton, 182 Iowa 487, 497, 166 N.W. 78, 82 (1918), we held that a judge not assigned for the term when a referee's report was filed could nevertheless approve the report. More recently in State v. Parrish, 232 N.W.2d 511, 514-515 (Iowa 1975), we held that \\\" . . . the action of any one of several judges holding court at the same place and time is the action of the court. . . . \\\" Thus we approved the sentencing of a defendant by one judge after his plea of guilty had been accepted by another and found no need to again fulfill the requirements of State v. Sisco, 169 N.W.2d 542 (Iowa 1969).\\nThe action of one judge, sitting as the court, may have the effect of altering or setting aside a previous ruling by another judge sitting as the same court. In Comes v. Comes, 190 Iowa 547, 550-551, 178 N.W. 403, 405 (1920), we held it was proper for the trial court to set aside a default previously entered by a different judge.\\nMany more cases could be cited. But we find the foregoing establish Judge Dams-gaard's authority. It can be conceded that, where the same judge is available to continue to sit in a given case, there is ordinarily some advantage in not substituting another judge. With a substitution of judges, the second judge has to familiarize himself with the case, often an extensive and difficult task. But such a burden is not insurmountable. Reed v. Lane, 96 Iowa 454, 65 N.W. 380 (1895), involved an action to recover on a guardian's bond. One judge presided at trial but another rendered the judgment. Responding to a complaint of the substitution we said:\\n. It is not to be presumed that when such changes occur, and a ruling is made or judgment is rendered by a judge who did not hear the evidence and arguments, his decision is without knowledge of the case, but it should be presumed that he has fully advised himself in regard to the merits of the rulings made and the judgments rendered. In most cases he will do no more than to enter of record and make effective, the conclusions of the judge who was present when the cause was submitted. The court, in law, does not change; and, if it renders correct decisions, litigants have no grounds for complaint. .\\n96 Iowa at 468, 65 N.W. at 384. We took a similar view in State v. McCray, 189 Iowa 1239, 1244, 179 N.W. 627, 629 (1920).\\nIn summary we believe that it would ordinarily be more appropriate for the sentencing judge, who is thus already familiar with the case, to reconsider that punishment under \\u00a7 903.2. But we find no rule requiring it. Defendant's contention to the contrary is without merit.\\nAFFIRMED.\"}"

iowa/10687253.json

@@ -0,0 +1 @@
+"{\"id\": \"10687253\", \"name\": \"In the Matter of the ESTATE of Lovell MYERS, Deceased. Appeal of John D. RANDALL\", \"name_abbreviation\": \"In re Estate of Myers\", \"decision_date\": \"1978-08-30\", \"docket_number\": \"No. 61038\", \"first_page\": \"127\", \"last_page\": \"129\", \"citations\": \"269 N.W.2d 127\", \"volume\": \"269\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:40:52.317257+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur except McGIVERIN, J., who takes no part.\", \"parties\": \"In the Matter of the ESTATE of Lovell MYERS, Deceased. Appeal of John D. RANDALL.\", \"head_matter\": \"In the Matter of the ESTATE of Lovell MYERS, Deceased. Appeal of John D. RANDALL.\\nNo. 61038.\\nSupreme Court of Iowa.\\nAug. 30, 1978.\\nJohn D. Randall, pro se, and Ronald W. Wendt and Jon M. McCright, Cedar Rapids, for appellant.\\nThomas M. Collins, of Shuttle worth & Ingersoll, Cedar Rapids, for appellees.\", \"word_count\": \"1396\", \"char_count\": \"8401\", \"text\": \"McCORMICK, Justice.\\nProbate orders allowing fees for an executor and its attorney are challenged by an estate beneficiary in this appeal. The orders were entered on two occasions. We dismiss the appeal from the first orders because it is untimely, and we affirm on the appeal from the second orders.\\nDecedent Lovell Myers died February 18, 1976, leaving a will naming his business partner John D. Randall sole beneficiary and executor of his estate. The will was filed for probate and Randall was appointed executor. Several months later decedent's daughter commenced a will contest and separately asked that Randall be removed as executor. The trial court first appointed Merchants National Bank of Cedar Rapids to act as co-executor with Randall but later removed Randall as co-executor pending the outcome of the will contest. The bank retained the Cedar Rapids law firm of Shuttleworth & Ingersoll as its attorneys.\\nOn March 4, 1977, the bank and law firm filed separate applications for fees and expenses for the period from the bank's appointment on July 2, 1976, through January 31, 1977. The applications were set for hearing upon notice to Randall who resisted them. After hearing, the trial court, Judge Vietor, entered orders on June 27, 1977, fixing the bank's fee at $5675 and the attorney fee at $6135.\\nRandall settled the will contest in July 1977. On July 22, 1977, the bank and its attorneys filed applications for fees and expenses for the period February 1, 1977, through July 6, 1977, stating their willingness to resign their positions in the estate upon payment of these fees and expenses as well as those earlier allowed. These applications were set for hearing upon notice to Randall and he resisted them. After hearing, the trial court, Judge Osmundson, on August 10, 1977, entered an order allowing a fee to the bank of $3500 and expenses of $115.80, a fee to McGladrey, Hansen, Dunn & Co., for accounting services rendered to the bank of $6875, and a fee to Shuttle-worth & Ingersoll of $5570 and expenses of $142.69. This order was amended August 11,1977, but the amendment is not material here.\\nRandall filed a notice of appeal on September 6,1977, from both sets of fee orders.\\nI. The threshold question is whether the orders are appealable as of right.\\nAn interlocutory ruling or decision is not appealable without permission. Final judgments and decisions are appealable as a matter of right, but appeal must be taken within 30 days from the entry of the order, judgment or decree involved. Rules 1, 2 and 5, Rules of Appellate Procedure. We lack jurisdiction to hear unauthorized appeals. In re Marriage of Mantz, 266 N.W.2d 758 (Iowa 1978).\\nProbate fee orders entered after notice and hearing are final as to parties having notice or appearing without notice. This follows from the general language of \\u00a7 633.36, The Code, which provides:\\nAll orders and decrees of the court sitting in probate are final decrees as to the parties having notice and those who appeared without notice.\\nThis provision appears first in the probate code revision of 1963, effective January 1, 1964. See Acts 60 G.A. ch. 326, \\u00a7 36. The comment of the Iowa State Bar Association Committee which proposed the legislation is as follows:\\nNew. This section provides a method whereby a final determination of a particular matter can be made by giving notice to affected parties and prevents the necessity of waiting until the hearing on the final report. All parties who appear at the hearing are bound by the proceedings whether served with notice or not. Such orders are final orders and are appealable, (emphasis supplied). 46 Iowa Code Annotated 62.\\nThe chairman of the bar committee later said the drafters recognized this provision might lead to multiple appeals in a single probate proceeding:\\nThe provision as to finality of orders with notice presents the possibility of multiple appeals in an estate proceeding where the interested parties are inclined to be litigious. But the desirability of obtaining a final adjudication of questions arising during the administration of an estate, in the opinion of the committee, outweighed the possibility of multiple appeals. Moreover, the present high cost of litigation should discourage unwarranted appeals by such persons. Webster, Decedents' Estates: Succession and Administration, 49 Iowa L.Rev. 638, 645 (1964).\\nSee also Colthurst v. Colthurst, 265 N.W.2d 590 (Iowa 1978); In re Estate of Jarvis, 185 N.W.2d 753 (Iowa 1971).\\nThis means the fee orders entered by Judge Vietor on June 27, 1977, were final and appealable as a matter of right within 30 days of that date. However, appeal from those orders was not attempted until September 6, 1977. The appeal from them was thus untimely and we have no jurisdiction of it. Accordingly, we must dismiss the appeal insofar as it challenges the orders of June 27, 1977.\\nThe appeal is timely as to the orders of August 10 and 11, 1977. Therefore we must determine the merits of the appeal insofar as it attacks those orders.\\nII. The only question on the merits of the August orders is whether the executor and attorneys sustained their burden to prove the necessity of their services and the reasonableness of their charges.\\nAllowance of fees in probate is governed by \\u00a7 633.197-633.200, The Code. Under these provisions personal representatives and their attorneys are to be awarded \\\"reasonable fees as may be determined by the court for services rendered\\\", not to exceed a schedule based on the size of the estate. In addition, reasonable allowance for \\\"actual necessary and extraordinary expenses or services\\\" is authorized.\\nWhen objection is interposed, as in the present case, the burden is on the applicant for fees to prove the services were reasonably necessary and the charges are reasonable in amount. Glynn v. Cascade State Bank, 227 Iowa 932, 289 N.W. 722 (1940); In re Estate of Munger, 168 Iowa 372, 150 N.W. 447 (1915); see Estate of Bass v. Bass, 196 N.W.2d 433, 435 (Iowa 1972). The hearing is in equity and our review is de novo. In re Estate of Cory, 184 N.W.2d 693 (Iowa 1971); \\u00a7 633.33, The Code.\\nIn the present case the fee applications were itemized in considerable detail and verified by the applicants. The bank showed the time attributed to each item in its statement although the attorneys did not. In each instance the fees requested were based on a charge of $50 per hour.\\nThe accounting services of McGladrey, Hansen, Dunn & Co. had been authorized by an order of the court entered in November 1976, and this fee was based on the firm's regular charges. The bank requested in its application that the fee be paid as an expense of administration.\\nTestimony in behalf of the bank, the accounting firm and the attorneys was to the effect that their respective services were necessary and that the charges were fair and reasonable.\\nThe estate included one-half interest in a corporation which owned approximately 2700 acres of farmland and other property. Randall owned the remaining one-half interest in the corporation. Estimates of value differed, but the gross assets of the estate for inheritance tax purposes may be worth more than two million dollars. Randall asserted Myers' accountings to him of corporate income had been false, and this made it necessary for the executor and attorneys to attempt to reconstruct the corporation's financial history. In doing this and in attempting to conserve the assets of the estate, handle routine probate tasks, and maintain a position of neutrality in the will contest, they were required to expend more time than probably would have been necessary in the ordinary course of estate administration.\\nDespite \\\" cross-examination which challenged certain items in their statements, we think the applicants carried their burden of proof and established their entitlement to the fees and expenses allowed by the trial court.\\nTherefore we find no merit in Randall's appeal from the orders of August 10 and 11, 1977.\\nAPPEAL DISMISSED IN PART AND AFFIRMED IN PART.\\nAll Justices concur except McGIVERIN, J., who takes no part.\"}"

iowa/10688203.json

@@ -0,0 +1 @@
+"{\"id\": \"10688203\", \"name\": \"CITY OF ELDRIDGE, Appellant, v. CATERPILLAR TRACTOR COMPANY and City of Davenport, Appellees\", \"name_abbreviation\": \"City of Eldridge v. Caterpillar Tractor Co.\", \"decision_date\": \"1978-10-18\", \"docket_number\": \"No. 60917\", \"first_page\": \"637\", \"last_page\": \"643\", \"citations\": \"270 N.W.2d 637\", \"volume\": \"270\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:23:43.655554+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C. J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"parties\": \"CITY OF ELDRIDGE, Appellant, v. CATERPILLAR TRACTOR COMPANY and City of Davenport, Appellees.\", \"head_matter\": \"CITY OF ELDRIDGE, Appellant, v. CATERPILLAR TRACTOR COMPANY and City of Davenport, Appellees.\\nNo. 60917.\\nSupreme Court of Iowa.\\nOct. 18, 1978.\\nRehearing Denied Nov. 17, 1978.\\nMcDonald, McDonald & Stonebraker and Heninger & Heninger, Davenport, for appellant.\\nBetty, Neuman, McMahon, Hellstrom & Bittner, Davenport, and Van Der Kamp, Crampton & Snyder, P. C., Rock Island, Ill., for appellee Caterpillar Tractor Co.\\nWilliam B. Waterman, City of Davenport Legal Dept., Davenport, for appellee City of Davenport.\\nConsidered by REYNOLDSON, C. J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"word_count\": \"3155\", \"char_count\": \"19442\", \"text\": \"REES, Justice.\\nThis is an appeal by the City of Eldridge (Eldridge) from orders of the trial court sustaining motions for summary judgment of defendants Caterpillar Tractor Company (Caterpillar) and City of Davenport (Davenport), and overruling plaintiff's motion to enlarge or amend findings and conclusions in accordance with rule 179, Rules of Civil Procedure. We dismiss the appeal.\\nOn February 10, 1976 Eldridge filed its petition at law alleging: that Davenport and Caterpillar conspired to deprive El-dridge of its exclusive jurisdiction to proceed with the annexation of certain real property located between Eldridge and Davenport, part of which was owned by Caterpillar; that Caterpillar had made material misrepresentations to Eldridge in December, 1965, inducing Eldridge to enter into a ten-year moratorium agreement with Davenport regarding annexation of such property; that Eldridge relied on such representations and entered into the moratorium agreement on May 23, 1966, thus depriving Eldridge of tax revenues it would have realized had it annexed the land as it had started to do in April, 1965; and that on January 14, 1976 Caterpillar filed a voluntary annexation application with Davenport to avail itself of substantial monetary inducements contained in ah agreement executed between the defendants in March of 1966 for the rendition of municipal services. The petition did not allege the existence of a fiduciary or confidential relationship between Eldridge and Caterpillar.\\nAttached to plaintiff's petition was a copy of the \\\"Agreement for Municipal Services\\\" entered into between the defendants on March 21,1966. That agreement provided that Caterpillar would advance all costs of construction of extending sewer lines between Caterpillar's property and the City of Davenport, provided that when Caterpillar became annexed to Davenport, part of the construction costs would be repaid to Caterpillar. The agreement also contemplated the removal of the 25 percent surcharge on the costs of rental of the sewer line upon the completion of proceedings for the annexation of the land to Davenport.\\nThere was also attached to the petition a copy of the moratorium agreement entered into between Eldridge and Davenport on May 23, 1966, by which the parties agreed that neither municipality would commence proceedings to annex the property in question for a period of ten years.\\nOn March 1, 1976, Caterpillar filed a motion to dismiss Eldridge's petition. El-dridge amended its petition on March 22, 1976 alleging defendants had fraudulently concealed and affirmatively misrepresented the provisions and effect of the municipal services agreement, as well as alleging the elements of conspiracy between the defendants. The amendment did not allege a confidential relationship between Eldridge and Caterpillar. On May 3, 1976 the trial court overruled Caterpillar's motion to dismiss.\\nFollowing the filing of answers by both defendants in which they denied all material allegations of the plaintiff's petition except the existence of the agreement for municipal services and the moratorium agreement, discovery proceedings were undertaken. The several depositions and affidavits which resulted from the discovery processes disclosed that newspaper accounts of the municipal services agreement were read by at least three of the members of the 1966 City Council of Eldridge, but that the council members never read the specific terms of the services agreement, although it was concededly a public document. The discovery processes further disclosed that Caterpillar's attorney told the mayor of El-dridge in 1966 that there were no strings attached to the municipal services agreement and that Eldridge had an equal chance with Davenport to annex Caterpillar's land. The Davenport director of public works stated in his deposition that the specific terms of the services agreement were \\\"fair, reasonable and consistent with accepted practice\\\", and attached to his affidavit copies of service agreements between other cities and industries which were essentially similar to the agreement between Davenport and Caterpillar. Depositions of individuals identified by Eldridge in interrogatories as having knowledge of, or information concerning, the inducement of El-dridge to enter into the moratorium agreement or as having knowledge of a conspiracy between defendants, were also taken. All of such individuals indicated they had no such information or knowledge. An affidavit of the plant controller of Caterpillar indicates that the company would have enjoyed tax advantages by electing to annex to Eldridge rather than to Davenport at the end of the moratorium term.\\nOn January 26, 1977 Caterpillar filed its motion for summary judgment which was later, on February 2, 1977, joined in by Davenport. The motion for summary judgment, although resisted by Eldridge, was sustained on May 23, 1977 upon the following grounds:\\n(1) the municipal services agreement afforded Caterpillar no special considerations;\\n(2) there was no evidence of fraud, misrepresentation or conspiracy perpetrated upon the plaintiff by the defendants; and\\n(3) the alleged misrepresentations of Caterpillar were not material to or relied on by Eldridge in entering into the moratorium agreement.\\nIn its resistance to the motion for summary judgment, Eldridge asserted that a confidential relationship existed between it and Caterpillar.\\nOn June 2, 1977 Eldridge filed its motion pursuant to rule 179, R.C.P., for the court to enlarge or amend its findings and conclusions and for the court to find specifically whether in 1965 and 1966 a confidential, trust or fiduciary relationship existed between Eldridge and Caterpillar. The motion to enlarge was overruled on June 24, 1977, the trial court noting that the finding sought by plaintiff's motion \\\"has been by implication decided against plaintiff\\\" in the previous order sustaining the defendants' motion for summary judgment.\\nOn July 21, Eldridge filed its notice of appeal, appealing both from the court's order sustaining defendants' summary judgment and the order overruling plaintiff's motion to enlarge or amend findings and conclusions under rule 179(b), R.C.P. Nota bly, the notice of appeal was filed within 30 days of the order overruling the motion for enlargement and amendment of findings and conclusions under rule 179(b), but more than 30 days after the order of the trial court sustaining defendants' motion for summary judgment. Caterpillar filed its motion to dismiss the appeal as untimely, and on August 31, by order of this court, such issue was ordered submitted with this appeal.\\nThe following issues are presented for review:\\n(1) Is a motion under rule 179(b), R.C.P., to enlarge findings and conclusions permissible following a ruling on a motion for summary judgment?\\n(2) Was there sufficient information before the trial court to generate a genuine issue of material fact on the existence of a fiduciary or confidential relationship between Eldridge and Caterpillar?\\n(3) Do the pleadings, depositions and answers to interrogatories support a genuine issue of material fact on each of the elements of fraud or conspiracy against El-dridge by the defendants regarding the moratorium agreement?\\nI. The first issue for review involves the preliminary question as to the timeliness of plaintiff's appeal from the order of the trial court sustaining defendants' motion for summary judgment. Plaintiff's motion under rule 179(b), R.C.P., was filed in a timely manner and, if proper, would have served to toll the running of the 30-day period for appeal as provided for in rule 5 of the Rules of Appellate Procedure. If plaintiff's 179(b) motion was not proper, then the appeal was not taken within the 30-day period following the order of the trial court sustaining the motion for summary judgment and the appeal must be dismissed.\\nRule 179 provides:\\n\\\"(a) The court trying an issue of fact without a jury, whether by equitable or ordinary proceedings, shall find the facts in writing, separately stating its conclusions of law; and direct an appropriate judgment. No request for findings is necessary for purposes of review.\\n\\\"(b) On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted. \\\"\\nThus it would appear from the first portion of the foregoing rule that it is applicable only when the court is \\\"trying an issue of fact without a jury\\\". We therefore proceed to a consideration as to whether a summary judgment proceeding constitutes the trying of \\\"an issue of fact without a jury\\\".\\nThe basis essential to a summary judgment proceeding is set forth in rule 237(c), R.C.P.:\\n\\\" The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. \\\"\\nIt is evident a summary judgment proceeding involves a determination that the moving party, not upon a factual resolution of an issue, but as a matter of law, is entitled to judgment. The trial court, in passing on the motion for summary judgment in the matter before us here, was not \\\"trying an issue of fact without a jury\\\", but was determining whether there were issues of material fact for submission to a trier-of-fact. Although we have never directly addressed this issue, we have noted that \\\"it may be doubted\\\" whether rule 179 is applicable in a summary judgment context. Petit v. Ervin Clark Construction Co., 243 Iowa 118, 49 N.W.2d 508, 513. A holding that plaintiff's motion was improper would be consistent with both the express terms of the foregoing applicable rules and any inferences which may be drawn from prior opinions of this court.\\nSuch a conclusion is also consistent with the purpose behind rule 179, for standards regarding the clarity of rulings on summary judgment motions are found elsewhere in the Rules of Civil Procedure.\\nAs we noted in Berger v. Amana Society, 257 Iowa 956,120 N.W.2d 465, 467:\\n\\\"One of the primary purposes of this section [179(b)] is to advise counsel and the appellate court of the basis of the trial court's decision in order that counsel may direct his attack upon specific adverse findings or rulings in the event of an appeal.\\\"\\nThe sustaining of a motion for summary judgment is nothing more nor less than a determination that there are no issues of material fact, and that the moving party is entitled to judgment as a matter of law, both of which elements must be specifically alleged by the moving party. The court will consider each alleged ground for summary judgment, and in accord with rule 118, R.C.P., dispose of each ground by separate ruling. There are no findings of fact which could be amended or enlarged, while rule 118 guarantees the clarification of the legal grounds for either sustaining or overruling a motion. The basis of the ruling is made obvious to the parties involved.\\nSupport for the foregoing conclusion is provided by analogous rule 52 of the Federal Rules of Civil Procedure, which provides:\\n\\\"(a) EFFECT. In all actions tried upon the facts without a jury or without an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon,\\n\\\"(b) AMENDMENT. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment according- * \\u215c\\nAlthough rule 52 was amended in 1946 to exclude almost all motions, including those for summary judgment, from its operation, judicial interpretation of rule 52 preceding the amendment is informative. In Thomas v. Peyser, 73 U.S.App.D.C. 155, 118 F.2d 369, 374 (1941), the court affirmed a judgment that had sustained a motion to dismiss for failure to state a claim on which relief could be granted, stating:\\n\\\"Rule 52(a) . . . requires findings 'in all actions tried upon the facts.' This case was not tried upon the facts. The facts were admitted by the motion to dismiss. Obviously there need be no fact findings where facts are not in issue. The only issues determined by the trial court were questions of law and these adequately disposed of the case.\\\"\\nMore specifically on point, in Lindsey v. Leavy, 149 F.2d 899, 902 (9th Cir. 1945), the court said:\\n\\\"Since a summary judgment presupposes that there are no triable issues of fact, findings of fact and conclusions of law are not required in rendering judgment, although the court may make such findings with or without request. Failure to make and enter findings and conclusions is not error.\\\"\\nSince there are no factual determinations to be made on a motion for summary judgment, we fail to perceive how the ruling thereon could properly be amended.\\nThe analogy between the federal and Iowa rules is further supported by the fact that rules 179 and 52 are respectively entitled \\\"Findings by Court\\\". As is indicated by statutory usage and subsequent judicial interpretation, \\\"findings\\\" generally relate to factual determinations, and \\\"conclusions\\\" to determinations of questions of law. In a summary judgment proceeding no findings of fact, as such, are involved, and rule 179 is therefore inapplicable.\\nA motion under rule 179(b) not being available to the plaintiff in the present action, we are without jurisdiction to proceed since the appeal was not timely within the provisions of rule 5, R.A.P., more than 30 days having passed since the sustaining of the motion for summary judgment before the appeal was taken. Like an untimely motion under rule 179(b), an improper motion thereunder does not act to toll the running of the 30-day period for filing an appeal under rule 5, R.A.P. Cf. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466 (Iowa 1978).\\nAccordingly, we are without jurisdiction to consider the remaining issues. The plaintiffs appeal is dismissed.\\nAPPEAL DISMISSED.\\nAll Justices concur except HARRIS, J., who dissents.\"}"

iowa/10698475.json

@@ -0,0 +1 @@
+"{\"id\": \"10698475\", \"name\": \"Virginia J. BERDING and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee; Camie BERDING, a minor by Herman J. Berding, her father and next friend, and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee; Randy ADAMS, a minor by Richard J. Adams, his father and next friend, and Richard J. Adams, Appellants, v. Dennis LeRoy THADA, Appellee; Emmanuel FRANKS, Executor of the Estate of Theresia Franks, Deceased, Appellant, v. Dennis LeRoy THADA, Appellee\", \"name_abbreviation\": \"Berding v. Thada\", \"decision_date\": \"1976-06-30\", \"docket_number\": \"No. 2-57049\", \"first_page\": \"857\", \"last_page\": \"862\", \"citations\": \"243 N.W.2d 857\", \"volume\": \"243\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:12:41.778119+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to MOORE, C. J., and Le-GRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"parties\": \"Virginia J. BERDING and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Camie BERDING, a minor by Herman J. Berding, her father and next friend, and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Randy ADAMS, a minor by Richard J. Adams, his father and next friend, and Richard J. Adams, Appellants, v. Dennis LeRoy THADA, Appellee. Emmanuel FRANKS, Executor of the Estate of Theresia Franks, Deceased, Appellant, v. Dennis LeRoy THADA, Appellee.\", \"head_matter\": \"Virginia J. BERDING and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Camie BERDING, a minor by Herman J. Berding, her father and next friend, and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Randy ADAMS, a minor by Richard J. Adams, his father and next friend, and Richard J. Adams, Appellants, v. Dennis LeRoy THADA, Appellee. Emmanuel FRANKS, Executor of the Estate of Theresia Franks, Deceased, Appellant, v. Dennis LeRoy THADA, Appellee.\\nNo. 2-57049.\\nSupreme Court of Iowa.\\nJune 30, 1976.\\nFinley & Teas, Mason City, for appellants.\\nBrown, Kinsey & Funkhouser, Mason City, for appellee.\\nSubmitted to MOORE, C. J., and Le-GRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"word_count\": \"2407\", \"char_count\": \"14652\", \"text\": \"REES, Justice.\\nThis appeal involves litigation which was spawned by an automobile collision at an intersection in Mason City on December 30, 1970. Trial to a jury of the four consolidated cases resulted in verdicts for defendant, and plaintiffs appealed. We affirm.\\nAbout 5:49 p. m. on December 30, 1970, plaintiff Virginia J. Berding was operating an automobile in a southerly direction on South Pierce Avenue and was proceeding from a stop sign across U.S. Highway 18 (which is also Fourth Street S.W.), when the vehicle she was driving was struck on the left side by a car driven by defendant Dennis LeRoy Thada.\\nTheresia Franks, Mrs. Berding's grandmother was a passenger in the automobile and came to her death as a result of the accident. Mrs. Berding sustained injuries as did two other passengers in the car, her daughter, Camie Berding, and her nephew, Randy Adams, both of whom were minors.\\nAs a consequence of the death of There-sia Franks, the injuries to the other three occupants of the car and the property damage to the automobile, four separate actions were commenced against the defendant. In each, the plaintiffs alleged defendant was negligent in failing to keep a proper lookout, in failing to have his car under control, in driving at an excessive speed, in failing to operate the vehicle so as to be able to stop in the assured clear distance ahead and in driving while under the influence of intoxicating liquor. Plaintiffs further alleged in their petitions that defendant knowingly and willfully drank intoxicating liquors, became intoxicated and knowingly and willfully drove his automobile on the highway in violation of the rules, standards and laws of the road as set in the motor vehicle laws of Iowa, and in disregard of the safety of others. Plaintiffs asked for punitive or exemplary damages in addition to compensatory damages.\\nIn his answer filed in each of the cases, defendant denied all material allegations of negligence and affirmatively pleaded that the sole proximate cause of the collision and the resulting damage to the plaintiffs was the negligence of Virginia Berding in failing to keep a proper lookout, in failing to yield the right-of-way to defendant's auto and in failing to proceed cautiously and with due care when entering a through highway where inhibited by a stop sign.\\nThe plaintiffs state the following issues for review:\\n(1) Trial court erred in failing to instruct the jury that it had already been \\\"judicially established\\\" defendant was intoxicated at the time of the collision.\\n(2) Trial court erred in unduly restricting plaintiffs' cross-examination regarding the testing of specimens of blood taken from defendant to determine the level of blood alcohol therein.\\n(3) Trial court erred in failing to instruct the jury regarding exemplary damages.\\nI. In the first issue stated for review, plaintiffs assert trial court erred in failing to instruct the jury that defendant's intoxication at the time of the accident had been previously \\\"judicially established\\\".\\nOn the first day of trial plaintiffs in three of the four consolidated actions filed amendments to their petitions as follows:\\n\\\"That the above named defendant has previously been adjudged to have been driving his car in an intoxicated condition at the time and place of the accident, by finding and judgment of this District Court of Iowa in and for Cerro Gordo County, and that the fact of the defendant's intoxication is subject to the application of the principle of res judicata.\\\"\\nThe same day, plaintiffs filed the following related motion:\\n\\\"COME NOW the above named plaintiffs and move the Court to instruct the jury that, as to the issue of the defendant's intoxication at the time of the collision, the fact that he was intoxicated at that time and place has been already judicially established in the case of State of Iowa v. Dennis LeRoy Thada, one and the same person as the above named defendant, and that the District Court of Iowa in and for Cerro Gordo County, after trial to the Court, found the defendant guilty of driving while under the influence of an intoxicant, the issue being the same as the one in this case; and the defendant in both cases was the same identical person and had a full and fair opportunity to litigate the issue of intoxication, and that said issue was litigated and resolved against him by the order of a judge of this Court; and thus, the issue of the fact of the defendant's intoxication at the material times to this case has been established for the purpose of this litigation.\\\"\\nTrial court overruled the above motions, and plaintiffs allege such ruling was error.\\nWe disagree. Trial court was correct in refusing to give res judicata effect to defendant's conviction of the crime of operating a motor vehicle while under the influence of an intoxicant insofar as it is related to the issue of his intoxication in this proceeding. We have recently discussed the principles governing the doctrine of res ju-dicata. See Trushcheff v. Abell-Howe Company, 239 N.W.2d 116, 132-133 (Iowa 1976); Bertran v. Glens Falls Insurance Company, 232 N.W.2d 527, 531-534 (Iowa 1975). See also Goolsby v. Derby, 189 N.W.2d 909, 913-917 (Iowa 1971). Extended discussion is unnecessary here, because to accept plaintiffs' assertion as to the issue of res judicata would be to disregard specific statutory direction and render impotent a provision of our codified law.\\nSection 321.489, The Code, provides:\\n\\\"321.489 Record inadmissible in a civil action. No record of the conviction of any person for any violation of this chapter shall be admissible as evidence in any court in any civil action.\\\"\\nThe chapter referred to is, of course, the statute respecting motor vehicles and law of the road.\\nIn Book v. Datema, 256 Iowa 1330, 131 N.W.2d 470, we held the above statute did not require exclusion from evidence of a voluntary plea of guilty, but we so held only because such guilty plea is properly treated as an admission by the defendant. In the instant case, plaintiffs admit defendant did not plead guilty to the charge of operating a motor vehicle while under the influence of an intoxicant. Our holding in Book, therefore, is of no benefit to them.\\nIt is obvious that \\u00a7 321.489, The Code, would be rendered impotent if we were to permit a defendant's conviction to establish conclusively the fact of his intoxication for purposes of subsequent civil litigation. Certainly such authorization would be contrary to the legislative scheme embodied in the above provision. See also 8 Am.Jur.2d Automobiles and Highway Traffic \\u00a7 944, pp. 489-490; 50 C.J.S. Judgments \\u00a7 754b, pp. 269-273; Annot., 18 A.L.R.2d 1287 (1951).\\nAccordingly, we conclude trial court did not err in failing to give the instruction sought by plaintiffs and the first issue stated for review in this appeal is without merit.\\nII. In the second issue stated for review, plaintiffs contend trial court erred in unduly restricting the scope of cross-examination of defendant's witnesses.\\nApparently, while defendant was at a local hospital the evening of the collision, blood was drawn from him for the purpose of testing his blood alcohol level. Although plaintiffs introduced testimony that defendant appeared to be intoxicated on the evening in question, they made no attempt in their case in chief to introduce the results of the blood alcohol test. They did, however, attempt to bring out the test results indirectly through cross-examination of two of defendant's witnesses.\\nDefendant called William F. McElroy, a Mason City policeman, to testify on his behalf. McElroy testified he was on duty on the night of December 30, 1970, and went to the scene of the accident. He later went to the hospital and saw Thada, with whom he was acquainted, and spoke with him. He testified he did not consider Thada intoxicated at that time. On cross-examination plaintiffs' counsel began a line of questioning regarding the blood test. Defendant's attorney immediately asked for a conference on the matter out of the presence of the jury. In the discussions with the court out of the presence of the jury, plaintiffs' attorney stated he intended to \\\"ask this witness and other witnesses as to whether or not a blood test was taken and to ask if they know what the result of that test is, and perhaps to ask them if they say they do, what the result of the test was . \\\" Defendant's attorney then made what he characterized as a motion in limine in which he asked the court to prohibit counsel for plaintiffs from \\\"inquiring of any [witnesses] in substance whether or not a blood test or any other test was taken of the defendant, Thada, from inquiring about the results of any test, [and] from inquiring whether or not a witness knows the results of any test . . .\\\" Trial court overruled defendant's motion.\\nWe believe it suffices to say that further cross-examination of Officer McElroy by plaintiffs' counsel established (1) that a specimen of blood was withdrawn from the defendant, (2) that the blood was tested for alcoholic content, and (3) that based upon \\\"any other information\\\" that McElroy \\\"learned after that time at the hospital,\\\" which he now knew \\\"as to Mr. Thada's condition at the time of the accident,\\\" his opinion that defendant was not intoxicated would not change. An objection was lodged by defendant's counsel to a question by plaintiffs' attorney as to whether McEl-roy knew the results of the blood test. In the objection to such question it was asserted the question called for hearsay, since McElroy was not present during the actual testing of the blood and had no participatory connection with the test. The objection was sustained.\\nSimilar information was brought out by plaintiffs' attorney in cross-examination of the witness Reindl, a Mason City police detective who testified for defendant. Reindl testified he did not consider defendant intoxicated on the evening of the collision. In addition, the following exchange took place between plaintiffs' counsel and the witness Reindl:\\n\\\"Q. And, since that time, I'm asking you based on all of the facts that you now know in regard to Mr. \\u2014 the defendant Thada's condition at that time of the accident, has your opinion changed any as a result of the blood test or anything else that you took or had taken?\\n\\\"A. My opinion changed of his condition?\\n\\\"Q. Yes.\\n\\\"A. No.\\n\\\"Q. Makes no difference to you, those other factors?\\n\\\"A. No.\\\"\\nThe record indicates plaintiffs' attorney did not directly attempt to ask Reindl the results of the blood test.\\nThe scope and extent of cross-examination lie largely within the discretion of the trial court. State v. Monroe, 236 N.W.2d 24, 29 (Iowa 1975), and citations. Clearly, the trial court did not abuse its discretion in ruling on objections made to the questions posed to defendant's witnesses on cross-examination.\\nIt is clear from the record that the cross-examination in this case covered fully and fairly the subject of the police officers' opinions regarding defendant's condition as to sobriety or intoxication on the evening of the auto accident. Without objection from defendant, plaintiffs' attorney was successful in calling to the jury's attention the fact a blood specimen had been taken and tested for alcoholic content. The officers were also examined as to whether the result of defendant's blood-alcohol test influenced their opinions. Both McElroy and Reindl testified their initial opinions that defendant was not intoxicated were not affected by the information which came to them subsequently.\\nIn essence, plaintiffs were unsuccessful only in the sense that they were not able to introduce in evidence the test results by the device of asking the officers what those results were. Clearly, the plaintiffs could have introduced those results themselves as substantive evidence, provided the proper procedure was followed. Section 321B.10, The Code. However, in Lessenhop v. Norton, 261 Iowa 44, 52A53, 153 N.W.2d 107, 111, we said:\\n\\\"Before any result of a blood test analysis can be admitted in any civil or criminal case, the party seeking to introduce such evidence must first lay a proper foundation for its admission. Unless waived, this foundation must show that the specimen was taken by a duly-authorized person using proper sterile equipment, that it was properly labeled and preserved, that its care and transportation were proper, and also the identity of persons processing it so as to give the opposing party the opportunity to cross-examine as to the care and procedure used in the test.\\\"\\nClearly, counsel for the plaintiffs sought to bypass the procedure detailed in Lessen-hop by drawing out the test results in cross-examination of defendant's witnesses. We cannot approve such an attempt to circumvent the established foundation requirements. The questioning by plaintiffs' attorney on cross-examination regarding the blood test results called for patent hearsay and was properly excluded. Accordingly, we perceive no merit in plaintiffs' second issue stated for review.\\nIII. In their third issue stated for review, plaintiffs assert trial court erred in failing to instruct the jury regarding exemplary damages.\\nAn award of exemplary damages is never made as a matter of right. Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976). Exemplary damages are not allowed unless actual damages have been established. Engel v. Vernon, 215 N.W.2d 506, 517 (Iowa 1974); McCarthy v. J. P. Cullen & Son Corp., 199 N.W.2d 362, 368 (Iowa 1972).\\nIn these consolidated cases the jury found for the defendant and against each plaintiff. Even if the trial court erred in failing to instruct on the issue of exemplary damages, such error was cured by the jury verdict in favor of defendant. Shannon v, Gaar, 234 Iowa 1360, 1364-1365, 15 N.W.2d 257, 259-260. Accordingly, we must reject plaintiffs' third issue stated for review as being without merit.\\nWe find no error. This case is therefore affirmed.\\nAFFIRMED.\"}"

iowa/10749605.json

@@ -0,0 +1 @@
+"{\"id\": \"10749605\", \"name\": \"Douglas L. HORN, Appellant, v. Charles HAUGH, Warden, Appellee\", \"name_abbreviation\": \"Horn v. Haugh\", \"decision_date\": \"1973-07-03\", \"docket_number\": \"No. 55891\", \"first_page\": \"119\", \"last_page\": \"121\", \"citations\": \"209 N.W.2d 119\", \"volume\": \"209\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:04:24.291517+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to MOORE, C. J., and RAWLINGS, LeGRAND, REYNOLD-SON and HARRIS, JJ.\", \"parties\": \"Douglas L. HORN, Appellant, v. Charles HAUGH, Warden, Appellee.\", \"head_matter\": \"Douglas L. HORN, Appellant, v. Charles HAUGH, Warden, Appellee.\\nNo. 55891.\\nSupreme Court of Iowa.\\nJuly 3, 1973.\\nJohn C. Platt and Jon M. Kinnamon, Cedar Rapids, for appellant.\\nRichard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and William G. Faches, County Atty., for appellee.\\nSubmitted to MOORE, C. J., and RAWLINGS, LeGRAND, REYNOLD-SON and HARRIS, JJ.\", \"word_count\": \"957\", \"char_count\": \"5956\", \"text\": \"HARRIS, Justice.\\nIn a postconviction proceeding brought under chapter 663A, The Code, petitioner challenges his conviction of selling a narcotic drug in violation of section 204.2, The Code, 1966. His challenge attacks the constitutionality of section 204.18, The Code, 1966. That section placed on the accused the burden of proof to show any exception, excuse, proviso or exemption under the Uniform Narcotic Drug Act (since repealed). Although petitioner did not raise or suggest any such exception at his trial, he challenged his conviction on the basis of Stump v. Bennett, 398 F.2d 111 (8 Cir. (1968), cert. den. 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466. He appeals the trial court's decree holding the section constitutional.\\nI. Petitioner cannot challenge the constitutionality of the section after having failed to do so during his trial. The question is controlled by section 663A.8, The Code, which provides:\\n\\\"All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.\\\" (Emphasis supplied)\\nIt is now suggested the clause \\\"or not raised\\\" appearing in section 663A.8 relates only to prior postconviction proceedings and does not preclude assertion of matters waived in the original trial. We do not agree.\\nAt the original trial petitioner surely knew if he had the ground he now seeks to assert in his defense. As it transpired, the trial court did not instruct on the issue at all, and never placed on petitioner the burden he now claims section 204.18 unconstitutionally imposed. How is he to claim the trial court, if requested, would not have instructed as he now claims it should ? A ground based on fact, in law, or mixed fact and law may be waived by failure to assert it.\\n\\\"This remedy is not a substitute for any remedy, incident to the proceedings in trial court .\\\" Section 663A.2, The Code.\\n\\\" (A) contention that the statute under which accused was prosecuted, or a provision thereof, is unconstitutional cannot be raised by a petition for post-conviction relief, since such question should have been raised by direct attack.\\\" 24 C.J.S. Criminal Law, \\u00a7 1606(12)b, page 721. See also Torres v. Warden of Md. Penitentiary, 227 Md. 649, 175 A.2d 594, cert. den. 369 U.S. 890, 82 S.Ct. 1164, 8 L.Ed.2d 290. The A.B.A. Standards, Post-Conviction Remedies, Approved Draft, section 6.1(c), page 20 provides in part:\\n\\\"Where an applicant raised in a post-conviction proceeding a factual or legal contention which he knew of and which he deliberately and inexcusably failed to raise in the proceeding leading to judgment of conviction, or having raised the contention in the trial court, failed to pursue the matter on appeal, a court should deny relief on ground of an abuse of process.\\nHere petitioner's attempt to use postcon-viction relief as a substitute for the simple statutory remedy of lodging objections to trial court's instructions, motion for new trial, and direct appeal, violates section 663A.2, The Code. See Parsons v. Brewer, 202 N.W.2d 49, 53 (Iowa 1972); State v. Weiland, 190 Neb. 1111, 206 N.W.2d 336 (1973); State v. Hizel, 181 Neb. 680, 150 N.W.2d 217 (1967).\\nSection 663A.8, The Code, cannot have the legislative intent suggested. If the phrase \\\"finally adjudicated or not raised\\\" referred only to a prior postconviction relief application, the petitioner could not litigate an issue previously intelligently waived (but never litigated), but could relitigate a question thoroughly threshed out and lost in trial and appeal. We reject the contention the clause \\\"or not raised\\\" in section 663A.8 is limited to prior postconviction proceedings. The failure to raise a defense in the original trial, unless excused as provided by the section, waives the issue in any future postconviction proceeding.\\nIn State v. Wetzel, 192 N.W.2d 762 (Iowa 1971) we held the section barred relitigation of previously adjudicated issues. In State v. Masters, 196 N.W.2d 548 (Iowa 1972) we held inadequacy or absence of counsel might be sufficient reason an issue was not asserted or was inadequately raised originally. Others might be imagined. Coercion is an example. See Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (filed April 2, 1973).\\nThe present case presents no situation excusing petitioner for not raising his constitutional question in the original trial, the \\\"proceeding that resulted in the conviction or sentence.\\\" He was well represented by competent counsel. He was not justified under section 663A.8 in awaiting the outcome of the trial before electing to raise the constitutional question. He may have believed there would be some tactical benefit in raising defenses piecemeal in successive proceedings. Such an imagined benefit is denied him by the statute.\\nII. We note his inability to raise the question does him no harm. After the filing of the decree appealed from we filed our opinion in State v. Lynch, 197 N.W.2d 186 (Iowa 1972). In Lynch we considered the precise question presented by petitioner and held the section constitutional.\\nAffirmed.\"}"

iowa/10763476.json

@@ -0,0 +1 @@
+"{\"id\": \"10763476\", \"name\": \"Richard L. RICK and Carol C. Rick, Appellants, v. Charles W. BOEGEL, Jr., Appellee\", \"name_abbreviation\": \"Rick v. Boegel\", \"decision_date\": \"1973-03-28\", \"docket_number\": \"No. 54875\", \"first_page\": \"713\", \"last_page\": \"717\", \"citations\": \"205 N.W.2d 713\", \"volume\": \"205\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:21:45.840167+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS and McCORMICK, JJ.\", \"parties\": \"Richard L. RICK and Carol C. Rick, Appellants, v. Charles W. BOEGEL, Jr., Appellee.\", \"head_matter\": \"Richard L. RICK and Carol C. Rick, Appellants, v. Charles W. BOEGEL, Jr., Appellee.\\nNo. 54875.\\nSupreme Court of Iowa.\\nMarch 28, 1973.\\nRichard L. Rick, of Des Moines, pro se and for appellant Carol C. Rick.\\nKeyes & Crawford by Alvin G. Keyes and William R. Crary, Cedar Rapids, for appellee.\\nHeard before MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS and McCORMICK, JJ.\", \"word_count\": \"2076\", \"char_count\": \"12983\", \"text\": \"REYNOLDSON, Justice.\\nPlaintiffs, on December 24, 1970, filed their petition in this law action seeking to gain possession of certain stock certificates, or alternatively, the value of the shares of stock represented by the certificates. Plaintiffs alleged Thelma Langley Boegel (hereinafter decedent) had owned the stock and during her lifetime had assigned and transferred ownership by separate written instruments to plaintiffs, decedent's son and daughter-in-law.\\nPlaintiffs alleged decedent kept the stock certificates in a safety deposit box jointly leased by her and her husband (defendant here) and following transfer to them, decedent retained these certificates in the box for fear her husband would physically beat her if he discovered the transfer. Plaintiffs pleaded defendant refused to deliver the certificates to them upon proper request. Plaintiffs' petition was filed after decedent's death but prior to appointment of any administrator or executor of decedent's estate.\\nOn January 15, 1971, defendant filed a petition in probate asking for his appointment as temporary administrator of decedent's estate. The petition was granted.\\nOn January 22, 1971, defendant filed an answer to plaintiffs' law petition which denied plaintiffs were owners of the stock. On the same day, defendant, as temporary administrator, filed a petition of intervention alleging the stock was an asset of decedent's estate because the assignments, unaccompanied by delivery of the certificates, were ineffective to transfer ownership to plaintiffs.\\nOn February 2, 1971, plaintiffs filed a motion to dismiss the petition of intervention alleging appointment of defendant as temporary administrator was a void ex parte procedure. They further alleged if the assignment was valid the stock would not be an asset of the estate, and defendant, as an individual, was the only one who had an interest in having the estate a party to the law action since plaintiff, Richard L. Rick, and defendant were the sole heirs or intestate beneficiaries of decedent's estate.\\nOn March 5, 1971, defendant filed a motion to dismiss plaintiffs' petition as to him individually. Defendant's motion alleged he had made no claim to the stock individually except as a beneficiary of decedent's estate. He asserted he was not a necessary party because the certificates had been delivered to decedent's personal representative as estate assets. Therefore, defendant contended, no valid claim against him had been stated in plaintiffs' petition.\\nOn March 12, 1971, combined hearing was held on the numerous and prolix motions pending in the instant law action and the related probate proceeding. On March 22, 1971, trial court entered its order and rulings on motions. This disposition removed the temporary administrators (in all, three such fiduciaries had been ultimately appointed), appointed Merchants National Bank as executor, sustained plaintiffs' motion to dismiss the petition of intervention filed in the law action, and sustained defendant's motion to dismiss plaintiffs' petition as to him individually. Numerous other portions of trial court's ruling attempted to posture the litigation to the end that the real issue \\u2014 ownership of the stock \\u2014 could be determined. Apparently, this satisfied none of the parties.\\nOn April 20, 1971, plaintiffs, not knowing whether trial court's order of March 22 was final or interlocutory, filed application for permission to bring an interlocutory appeal to this court. On April 29, 1971, Merchants National Bank filed its declination to serve as executor. On June 8, 1971, the application for interlocutory appeal was granted allowing both plaintiffs and defendant to appeal from so much of trial court's order as each party deemed prejudicial. This appeal followed.\\nThese litigants confine their efforts to two issues: 1) whether trial court erred in dismissing plaintiffs' petition as to defendant individually, and 2) whether trial court erred in dismissing the petition of intervention filed by the defendant as temporary administrator. Of course our review of this law action is confined to errors properly assigned and argued. Rule 344, Rules of Civil Procedure; Copeland v. Stewart, 203 N.W.2d 195 (Iowa 1972).\\nI. Proper party defendant.\\nWe treat plaintiffs' appeal first. Plaintiffs assert trial court erred in sustaining defendant's motion to dismiss as to defendant individually. We agree and reverse.\\nInitially we note several general principles applicable when ruling on a motion to dismiss. A motion to dismiss should be sustained only when it appears to a certainty that plaintiff has failed to state a claim on which any relief may be granted under any state of facts which could be proved in support of the claims asserted in the petition. Iowa Truck Center, Inc. v. Davis, 204 N.W.2d 630 (Iowa, filed Feb. 21, 1973); Wheeler v. Waller, 197 N.W.2d 585 (Iowa 1972); Dragstra v. Northwestern State Bank of Orange City, 192 N.W.2d 786 (Iowa 1971); Osbekoff v. Mallory, 188 N.W.2d 294 (Iowa 1971). For the purpose of testing the legal sufficiency of a petition all its well pleaded facts are assumed true. Id.\\nA motion to dismiss may, not be supported by its own allegations of fact, not contained in- the petition under attack. Griffith v. Red Oak Community School District, 167 N.W.2d 166 (Iowa 1969); McCarthy v. McCarthy, 162 N.W.2d 444 (Iowa 1968); Bales v. Iowa State Highway Commission, 249 Iowa 57, 86 N.W.2d 244 (1957).\\nWhen the petition is not attacked Until after answer, the petition will be liberally construed in favor of plaintiff so as to effectuate justice, and pleader will be given advantage of every reasonable in-tendment. Iowa City v. Muscatine Development Company, 258 Iowa 1024, 141 N.W.2d 585 (1966); Ontario Livestock Commission Co. v. Flynn, 256 Iowa 116, 126 N.W.2d 362 (1964).\\nMotions to dismiss for failure to state a claim upon which relief can be granted must clearly specify wherein the pleading attacked is insufficient. Ke-Wash Company v. Stauffer Chemical Com pany, 177 N.W.2d 5 (Iowa 1970); Hagenson v. United Telephone Company, 164 N.W.2d 853 (Iowa 1969); Wernet v. Jurgensen, 241 Iowa 833, 43 N.W.2d 194 (1950); Wright v. Copeland, 241 Iowa 447, 41 N.W.2d 102 (1950).\\nIf any ground asserted in a motion to dismiss is good, trial court's ruling sustaining motion will be affirmed on appeal, even though ground upon which trial court based its ruling was not good. In re Lone Tree Com. School Dist. of Johnson & Louisa, 159 N.W.2d 522 (Iowa 1968); Crawford v. City of Des Moines, 255 Iowa 861, 124 N.W.2d 868 (1963). However, sustention of a motion to dismiss will not be upheld on a ground not asserted in trial court. Thompson v. Burke Engineering Sales Co., 252 Iowa 146, 106 N.W.2d 351 (1960); American Mutual L. Ins. Co. v. State Auto. Ins. Ass'n, 246 Iowa 1294, 72 N.W.2d 88 (1955).\\nWe now turn to the application of these general rules to the issue at hand. Eliminating all new factual allegations contained in defendant's motion to dismiss, the only specific ground stated in support of the motion was that defendant, as an individual, was not a necessary and proper party to the action. We need not determine whether the motion to dismiss was the proper mode of raising the issue, because we agree with the plaintiffs on the merits.\\nPlaintiffs .in essence pleaded an action in replevin. See chapter 643, The Code. The issue in replevin is the right to possession of the property on the date the action is commenced. Iowa Truck Center, Inc. v. Davis, supra; Marx Truck Line, Inc. v. Fredricksen, 260 Iowa 540, 150 N.W.2d 102 (1967); Cassel v. Western Stage Company, 12 Iowa 47 (1861); Kingsbury v. Buchanan, 11 Iowa 387 (1860). When both parties claim ownership of property in dispute, right of possession depends on ownership, and if nothing further appears, it is presumed that the ownei is entitled to possession. Varvaris v. Varvaris, 255 Iowa 800, 124 N.W.2d 163 (1963).\\nIn neither his motion to dismiss nor on appeal does defendant argue that ownership of stock can not be transferred without manual delivery of the certificates. That issue is not effectively raised in this appeal, so we do not decide it. But assuming as true all allegations of plaintiffs' petition, ownership of the investment securities was transferred to plaintiffs during decedent's lifetime, and therefore the personal representative of decedent had no right to possession of the certificates. Cf. \\u00a7 633.351, The Code.\\nWhen plaintiffs' petition was filed no personal representative of decedent had been appointed. According to the record available to us there is no actively serving personal representative at this time. Prior to filing their petition plaintiffs demanded delivery of certificates from defendant. Defendant failed to comply. Since at the time of the petition defendant had not yet been appointed as personal representative, the interest in the property he asserted by not complying with the demand must have been as an individual. We conclude that defendant, as an individual, was a proper party to this action. The case of Herd v. Herd, 71 Iowa 497, 32 N.W. 469 (1887) supports our conclusion. See generally Annot, 42 A.L.R.2d 418, 437-41. Trial court erred in sustaining defendant's motion to dismiss on any of the grounds stated in the motion.\\nII. Temporary administrator's intervention.\\nWe now treat defendant's appeal as temporary administrator and intervenor. His standing to appeal in that capacity, having been discharged, is not put in issue by plaintiffs. Defendant contends trial court erred in sustaining plaintiffs' motion to dismiss the temporary administrator's petition. The right to intervene in an action is usually raised by a motion to strike, or dismiss, the petition of intervention. Morse v. Morse, 247 Iowa 1113, 77 N.W.2d 622 (1956). In this instance we agree with defendant that the temporary administrator had the right to intervene, and reverse.\\nOur determination that defendant, as an individual, was a proper party, does not preclude the defendant, as subsequently appointed temporary administrator, from intervening. The test of right of intervention is \\\"interest\\\", not necessity. Rule 75, R.C.P.; Schimerowski v. Iowa Beef Packers, Inc., 196 N.W.2d 551 (Iowa 1972); State ex rel. Turner v. Iowa State Highway Com'n, 186 N.W.2d 141 (Iowa 1971). An interested party may intervene at any time prior to trial. Rule 75, R.C.P.\\nTo test the legal sufficiency of a petition of intervention, all allegations of that petition are assumed true. See 67 C. J.S. Parties \\u00a7 71(b), at pp. 1015-1016. The petition of intervention alleged decedent owned the stock at the time of her death. We can conceive of circumstances which under the pleadings might be proven to establish this ultimate factual allegation. Assuming that the stock was decedent's property at the time of her death, then decedent's personal representative had an obligation to take possession of the certificates. See \\u00a7 633.351, The Code (\\\"Every personal representative shall take possession of all the personal property of the decedent .\\\")\\nThe \\\"interest\\\" of the personal representative is obvious. In order to properly perform his fiduciary duty he must know who owns the stock and thus who has the right to possession. The personal representative is entitled to an expeditious determination of this issue which is binding on the estate in order that he may claim or disclaim the property.\\nSince intervention is remedial and is to be liberally construed to reduce litigation and expeditiously determine matters before the court, we hold the intervenor chose a proper mode of obtaining a binding determination of the issue. See Schimerowski v. Iowa Beef Packers, Inc., supra; Peters v. Lyons, 168 N.W.2d 759 (Iowa 1969); cf. \\u00a7 643.4, The Code.\\nAlthough we have treated the merits of the intervention, we now note that plaintiffs' motion to dismiss petition of intervention failed to clearly specify how the petition of intervention was deficient. The grounds asserted in the motion to dismiss consisted mainly of affirmative factual allegations. When ruling on the motion to dismiss, such factual allegations should be ignored. Trial court erred in sustaining plaintiffs' motion to dismiss intervention on the grounds asserted.\\nAs guidance to trial court on remand we point out that when a permanent and impartial personal representative is found he may be substituted as intervenor. See Rule 20, R.C.P. Trial court under certain circumstances has power to order pleadings to be recast or corrected. Rule 81, R.C.P.\\nReversed and remanded on both appeals.\"}"

iowa/10767778.json

@@ -0,0 +1 @@
+"{\"id\": \"10767778\", \"name\": \"Robert LYNCH, Appellant, v. STATE of Iowa, Appellee\", \"name_abbreviation\": \"Lynch v. State\", \"decision_date\": \"1973-12-19\", \"docket_number\": \"No. 2-56258\", \"first_page\": \"502\", \"last_page\": \"502\", \"citations\": \"213 N.W.2d 502\", \"volume\": \"213\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:43:24.893147+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to MOORE, C. J., and Le-GRAND, UHLENHOPP, REYNOLD-SON and HARRIS, JJ.\", \"parties\": \"Robert LYNCH, Appellant, v. STATE of Iowa, Appellee.\", \"head_matter\": \"Robert LYNCH, Appellant, v. STATE of Iowa, Appellee.\\nNo. 2-56258.\\nSupreme Court of Iowa.\\nDec. 19, 1973.\\nDavid L. McCoid, Mt. Pleasant, for appellant.\\nRichard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Gary L. Wiegel, Co. Atty., for appellee.\\nSubmitted to MOORE, C. J., and Le-GRAND, UHLENHOPP, REYNOLD-SON and HARRIS, JJ.\", \"word_count\": \"293\", \"char_count\": \"1748\", \"text\": \"PER CURIAM :\\nDefendant entered a plea of guilty to a county attorney's information charging him with larceny of a motor vehicle in violation of section 321.82, The Code. He was sentenced to imprisonment and thereafter brought this postconviction proceeding on the claim he was only \\\"joy riding\\\" and was guilty of no more than operating without consent in violation of section 321.76, The Code. He asserts the position he now takes was so obvious at the time he entered his plea as to render the proceedings void as a violation of due process of law.\\nDefendant does not claim noncompliance with the requirements of State v. Sisco, 169 N.W.2d 542 (Iowa 1969). It is unnecessary to consider the substance of defendant's claim; it is enough to hold he is without authority to assert it. The rule is well established that \\\"[a] guilty plea voluntarily and intelligently made by a defendant constitutes an admission of guilt and when accepted by the court constitutes a conviction of the highest order. Such a plea waives all defenses and irregularities except that the information or indictment charges no offense and the right to challenge the plea itself. (Citations).\\\" State v. Burtlow, 210 N.W.2d 438, 439 (Iowa 1973). See also State v. McGee, 211 N.W.2d 267 (Iowa 1973); and State v. Kobrock, 213 N.W.2d 481 (Iowa 1973).\\nWe find no error. The judgment of the trial court must be and is affirmed.\\nAffirmed.\"}"

iowa/10768728.json

@@ -0,0 +1 @@
+"{\"id\": \"10768728\", \"name\": \"Elvin L. SMITH, Appellant, v. IOWA EMPLOYMENT SECURITY COMMISSION and Capital City Mills, Appellees\", \"name_abbreviation\": \"Smith v. Iowa Employment Security Commission\", \"decision_date\": \"1973-11-13\", \"docket_number\": \"No. 247\", \"first_page\": \"471\", \"last_page\": \"474\", \"citations\": \"212 N.W.2d 471\", \"volume\": \"212\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:10:17.736303+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before MOORE, C. J., and RAWLINGS, LeGRAND, REES and REYNOLD SON, JJ.\", \"parties\": \"Elvin L. SMITH, Appellant, v. IOWA EMPLOYMENT SECURITY COMMISSION and Capital City Mills, Appellees.\", \"head_matter\": \"Elvin L. SMITH, Appellant, v. IOWA EMPLOYMENT SECURITY COMMISSION and Capital City Mills, Appellees.\\nNo. 247.\\nSupreme Court of Iowa.\\nNov. 13, 1973.\\nNaomi S. Mercer and James F. Fowler, Des Moines, for appellant.\\nWalter F. Maley, Des Moines, for appel-lees.\\nHeard before MOORE, C. J., and RAWLINGS, LeGRAND, REES and REYNOLD SON, JJ.\", \"word_count\": \"1486\", \"char_count\": \"9224\", \"text\": \"LeGRAND, Justice.\\nThis appeal presents only one question \\u2014the sufficiency of notice given plaintiff under section 96.6(2), The Code. The precise issue before us has not been heretofore considered, and this is a matter of first impression. The trial court held the notice sufficient. We reverse. Unless otherwise noted, all statutory references are to the 1966 Code.\\nOn April 2, 1971, one of the Commission's deputies (who are now called representatives) ruled plaintiff had left his employment voluntarily and was therefore disqualified from receiving benefits under the Iowa Employment Security Law. The Commission asserts a notice of disqualification was mailed to plaintiff on that same date at his last known address, advising him both of the disqualification and of the time within which an appeal was permitted. The present controversy centers around that notice and the plaintiff's subsequent attempted appeal as permitted by sections 96.6(2) and 96.6(3), The Code.\\nSection 96.6(2) provides in part as follows :\\n\\\"The deputy shall promptly notify the claimant and any other interested party of the decision and the reasons therefor. Unless the claimant or other interested party, within five calendar days after the delivery of such notification, or within seven calender days after such notification was mailed to his last known address, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith.\\\"\\nWe accept for present purposes the Commission's argument that the five-day delivery provision applies only to notices served personally on a claimant by a Commission representative. We are concerned here only with the alternative method of notification by mail, which directs that an appeal must be taken \\\"within seven calendar days after such notification was mailed to [claimant's] last known address.\\\"\\nWe agree with the trial court there is substantial support for the deputy's conclusion that this statutory provision was complied with and is therefore binding on us as a finding of fact. Section 96.6(10), The Code; Iowa Malleable Iron Co. v. Iowa Employment Security Commission, 195 N.W.2d 714, 717 (Iowa 1972).\\nThis alone, however, does not dispose of plaintiff's appeal. He raises also a constitutional issue, alleging the statute deprives him of due process under both the 5th and 14th Amendments to the federal constitution and presumably section 9, article I of the Iowa constitution. This poses a legal question which we must review and decide.\\nThe difficulty of framing an all-inclusive definition of due process has long been recognized. 16 Am.Jur.2d, Constitutional Law, page 936 (1964); 16A C.J.S. Constitutional Law \\u00a7 567, pages 536-541 (1956). This trouble arises from the very dilemma which confronts us now \\u2014 what may be constitutionally permissible under some circumstances becomes patently unfair and intolerable under others.\\nIt has been said that \\\"due process is an elusive concept [whose] exact boundaries are undefinable and [whose] content varies according to specific factual contexts.\\\" (16 Am.Jur.2d, supra, at pages 937, 938.) It has also been held that due process \\\"is not susceptible of exact or comprehensive definition. Its meaning has been developed in the cases by a process of judicial inclusion and exclusion.\\\" (16A C.J.S., supra, at page 536.)\\nIt is clear, however, that when a hearing is afforded due process demands contestants be given notice thereof sufficient to permit a reasonable opportunity to appear and assert their rights. 16 Am. Jur.2d, Constitutional Law, pages 966-969; 16A C.J.S. Constitutional Law \\u00a7 628, pages 861-867; Eves v. Iowa Employment Security Commission, Iowa, 211 N.W.2d 324, filed October 17, 1973, and authorities there cited; cf. Davis, Administrative Law (one volume edition) pages 162-164 (1972).\\nOur Iowa Employment Security Law was enacted in 1936 for the avowed purpose of minimizing the crushing burden of involuntary unemployment which so often falls upon the unfortunate worker and his family. Section 96.2, The Code; Iowa Malleable Iron Co. v. Iowa Employment Security Commission, supra, 195 N.W.2d at 716. Clearly the chapter should be interpreted liberally to achieve that legislative goal whenever possible.\\nThe notice provisions of section 96.6(2) remain as they appeared in the original act. Until now that section has not been subjected to constitutional attack; and until lately it is doubtful if such an assault would have been considered valid. However, we have recently taken judicial notice of the \\\"continuing breakdown in United States mail deliveries [assuming] proportions of national disaster.\\\" Eves v. Iowa Employment Security Commission, Iowa, 211 N.W.2d 324, filed October 17, 1973. For discussion of a somewhat related problem, see Miami Dolphins, Ltd. v. Florida Dept. of Commerce, Fla.App.1971, 252 So.2d 396.\\nOur task now is to apply the notice provisions of section 96.6(2) to the facts before us in the light of present day conditions. We assume the statute is not unconstitutional on its face; we assume too it did not operate unconstitutionally when enacted. However, we hold the intent and purpose of the notice provisions of section 96.6(2) fail now because of circumstances beyond the control of any interested party \\u2014 -the Commission, the employer, or the claimant.\\nA reading of the statute discloses the legislature intended a claimant to have five days to appeal from an adverse decision rendered under section 96.6(2). In case of notice delivered to him personally, he is given five days to take an appeal. If it is mailed, he is allowed seven days from the day of mailing to do so. Clearly this was on the theory \\u2014 reasonable then \\u2014 that the notice would arrive in due course within two days of mailing. We do not believe the legislature contemplated a day would come when failure to effect delivery of mail in that period, even to nearby cities, would be commonplace.\\nOur holding in the Eves case is significant here, even though we considered there a departmental rule rather than a statute. Nevertheless our conclusion in Eves that a right to a hearing necessarily means a meaningful one with a real opportunity to appear and present one's case is persuasive in reviewing plaintiff's plight in the present appeal. His application for benefits was denied. Notice to that effect was mailed as required by statute. It reached him four days later, allowing only three days within which to seek out an attorney, advise himself of his rights, and decide if an appeal was advisable. Of course, all this could be done in three days; but is it reasonable to require it to be accomplished in that period, particularly in view of the provisions of the statute already referred to?\\nThe statute at best affords an abbreviated appeal period from this administrative holding. The time allowed is considerably longer in most cases. See Bezanson, Judicial Review of Administrative Action in Iowa, 21 Drake Law R. 1, appendix A, pages 54-57 (1971). When such a limited opportunity is further reduced by circumstances beyond anyone's control, an unsuccessful claimant is given little chance to take effective action to pursue his rights.\\nWe do not gainsay the right of the legislature to prescribe notice such as it did in section 96.6(2); nor do we presume to limit its prerogative of determining the length of such notice, assuming it does not offend against basic rules of fairness. We recognize, too, that notice may be constitutionally sufficient even though not received. 16 Am.Jur.2d, Constitutional Law, page 965 (1964). But the notice provided for must at least be one which is reasonably calculated to accomplish its purpose. We hold that a review of the statutory plan and purpose in this case leads to the inevitable conclusion that under present day conditions the provisions of the statute as to notice by mailing operated to deprive plaintiff of the due process he is entitled to and which the legislature intended him to have.\\nWe have said a statute admittedly valid and constitutional on its face may operate unconstitutionally under given facts. We did so most recently in Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa 1973). See also 16 Am.Jur.2d, Constitutional Law, pages 355, 356 (1964). We believe the same rule is applicable here. We emphasize we are dealing with a factual situation in which the parties \\u2014 both the Commission and the plaintiff \\u2014 acted with diligence and dispatch. Nevertheless conditions which neither could control robbed plaintiff of his right anywhere or anytime to dispute the factual determination by which the Commission denied him benefits under the Iowa Employment Security Law.\\nWe say this was a denial of due process and we reverse with instructions that he have the appeal hearing provided for in sections 96.6(2) and 96.6(3), The Code.\\nReversed and remanded.\"}"

iowa/10772292.json

@@ -0,0 +1 @@
+"{\"id\": \"10772292\", \"name\": \"The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Appellee, v. BOARD OF REVIEW OF CITY OF DES MOINES, Iowa and L. L. Daubert, Chairman, Appellants\", \"name_abbreviation\": \"Evangelical Lutheran Good Samaritan Society v. Board of Review of Des Moines\", \"decision_date\": \"1972-09-19\", \"docket_number\": \"No. 55047\", \"first_page\": \"509\", \"last_page\": \"513\", \"citations\": \"200 N.W.2d 509\", \"volume\": \"200\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:35:14.648419+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur, except HARRIS, J., who dissents.\", \"parties\": \"The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Appellee, v. BOARD OF REVIEW OF CITY OF DES MOINES, Iowa and L. L. Daubert, Chairman, Appellants.\", \"head_matter\": \"The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Appellee, v. BOARD OF REVIEW OF CITY OF DES MOINES, Iowa and L. L. Daubert, Chairman, Appellants.\\nNo. 55047.\\nSupreme Court of Iowa.\\nSept. 19, 1972.\\nHerrick, Langdon, Belin & Harris, Des Moines, for appellants.\\nBeving & Swanson and Harvey L. Harrison, Des Moines, for appellee.\", \"word_count\": \"2054\", \"char_count\": \"12735\", \"text\": \"MOORE, Chief Justice.\\nWe have before us defendants' appeal in three consolidated cases in which the trial court reversed the. decision of defendant Board of Review and held plaintiff's real property tax exempt for the years 1968, 1969 and 1970.\\nThe sole issue is the eligibility of plaintiff's Rest View property for tax exemption under Code section 427.1(9) which, as pertinent here, provides:\\n\\\"The following classes of property shall not be taxed:\\n\\\"9. All grounds and buildings used by literary, scientific, charitable, benevolent, agricultural, and religious institutions and societies solely for their appropriate objects and not leased or otherwise used with a view to pecuniary profit.\\nPlaintiff, The Evangelical Lutheran Good Samaritan Society, in 1922 was organized and incorporated in North Dakota as a nonprofit and religious corporation. At all material times it has been authorized to do business in Iowa. Plaintiff-corporation is not connected with or controlled by any church and receives no financial direction or any other kind of direction from any Lutheran Church body.\\nIn December 1967 plaintiff purchased Rest View Nursing Home from Charles Shindler. It was then one of 26 nursing homes in the City of Des Moines operating on the same general plan. Neither Rest View nor the other 25 nursing homes had ever made any claim for tax exemption. Plaintiff continued the same service in 1968 to Rest View's then 90 paying residents as that furnished by Shindler during 1967. In 1970 plaintiff changed from an extended care and nursing home to a custodial care home operation.\\nOn January 30, 1968 plaintiff filed its claim for tax exemption, alleging said nursing home was used for charitable, benevolent and religious purposes. That and similar claims filed in 1969 and 1970 were denied by defendant-Board of Review. The three cases arising therefrom were consolidated for trial in the district court.\\nIn addition to the facts already stated the trial evidence establishes plaintiff in 1967 had 118 homes with various types of operations in 14 states, 23 in Iowa. Most showed a profit. Some showed a loss. Of its 15-member board of directors six were administrators of facilities similar to Rest View. Their salaries ranged from $500 to $1000 a month. Rest View's administrator was being paid $850 a month. Rest View paid $360 a month as dues to the central office of the Society.\\nPlaintiff's total equity for its 118 centers was $17,201,211 as of December 21, 1967. The corresponding figure as of December 31, 1968, then 131 centers, was $19,794,964. For December 31, 1969, then with 132 centers, the equity increased to $22,533,006. In other words, plaintiff's increase was approximately $2,000,000 for each year here involved.\\nThe basic rate per patient per day at Rest View under plaintiff's operation as an extended care and nursing home was $14. As to most patients, that was paid by Medicare and Medicaid until those funds were no longer available. Mec^caid was paid at a cost per day plus two percent for profit. Plaintiff in 1970 changed to primarily a custodial care home. Patients needing nursing care were moved to other nursing homes in the Des Moines area. The patients cared for in Rest View thereafter were on public welfare. Plaintiff's first Rest View administrator testified: \\\"All patients have guarantors, son, daughter, or sister or somebody like that took care of the payments and the rest was welfare.\\\"\\nPlaintiff's auditor was unable to testify definitely whether during the years involved plaintiff had a net profit or a loss. The record does justify a finding of approximately $20,000 profit for 1968. The 1969 records are indefinite as the audit showed a possibility of an overcharge Medicaid claim of $105,000. The audit did not reflect a loss or profit due to uncertainty of the $105,000 item. Certainly plaintiff had not made such a refund. The change in 1970 from nursing to custodial care and the reduction from 90 to 41 occupants resulted in a loss of approximately $80,000.\\nLouis Shim, Rest View administrator at trial time, testified: \\\" we have lost sums of money on nursing home operations, and even though we have been subsidized by their funds, their funds are limited, and we cannot afford losing money to continue operating a nursing home.\\\"\\nThe court then asked, \\\"Subsidized from whom?\\\" Shim answered, \\\"From the Central Office.\\\" He further testified, \\\"If somebody offered the price we bought it for I'm sure we would like to sell.\\\"\\nI. The following applicable legal principles are well established. Statutes exempting property from taxation must be strictly construed. If there is any doubt upon the question, it must be resolved against the exemption and in favor of taxation. The burden is upon one claiming exemption to show that the property falls within the exemption statute. Wisconsin Evangelical Lutheran Synod v. Regis, Iowa, 197 N.W.2d 355, 356; Trinity Lutheran Church v. Browner, 255 Iowa 197, 200, 121 N.W.2d 131, 133 and citations in each. See also 84 C.J.S. Taxation \\u00a7 225.\\nAs we point out in Wisconsin Evangelical Lutheran Synod v. Regis, supra, at page 357, 197 N.W.2d, \\\"The current trend in other jurisdictions is to curb and restrict the type of exemption claimed here.\\\" Support for such a trend is found in the testimony of Mr. Regis, Des Moines City Assessor, that approximately 261/2 percent of the property in the City of Des Moines is exempt from taxation.\\nII. The objects and purposes of the corporation as expressed in its articles of incorporation are not controlling in determining the question of exemption. This question must be determined from the use made of the property rather than the declarations made in its articles of incorporation. South Iowa Methodist Homes, Inc. v. Board of Review, Iowa, 173 N.W.2d 526, 530; Readlyn Hospital v. Hoth, 223 Iowa 341, 344, 272 N.W. 90, 91; Theta Xi Bldg. Ass'n v. Board of Review, 217 Iowa 1181, 1183, 251 N.W. 76, 77.\\nIII. There is no evidence plaintiff ever cared for anyone as a matter of charity or benevolence. On the contrary the record discloses as to each it had assurance of payment by a public agency plus a guarantor. There is no evidence it operated as a religious institution. Plaintiff's claim of using its property solely for charitable and benevolent objects is not established by the evidence. $2,000,000 per year increase in assets and eagerness to sell a home showing a loss is strong evidence plaintiff's op eration was \\\"with a view of pecuniary profit\\\" which takes it out of the exemption provided for in Code section 427.1(9). Plaintiff failed to carry its burden of proving its tax exemption claim.\\nIV. Plaintiff, as did the trial court, relies heavily on our holding in South Iowa Methodist Homes, Inc. v. Board of Review, Iowa, 173 N.W.2d 526. It is factually different in several respects from the case at bar. South Iowa Methodist Homes, Inc., was a church organized, church sponsored, church disciplined and church financially-supported, single-unit home. Its real property was originally purchased with church funds and it received substantial contributions for its building fund from the South Iowa Annual Conferences. Its manager was an ordained Methodist minister assigned to that position by the Bishop. No application for admittance was ever turned down because of financial reasons. Some residents were nonpaying. South Iowa enjoyed the services of an active 150 Women's Guild. It could not have operated except for gifts and contributions.\\nReversed and remanded to the district court for entry of judgment in conformance herewith.\\nAll Justices concur, except HARRIS, J., who dissents.\"}"

iowa/10776230.json

@@ -0,0 +1 @@
+"{\"id\": \"10776230\", \"name\": \"Cynthia GARTON, Appellant, v. Gilbert GARTON, Executor of the Estate of George R. Garton; Richard C. Garton; Security Bank of Kansas City; George R. Haydon, Jr., Personal Representative of the Estate of Edwin C. Borserine, Deceased, Appellees, and Alice Cockrell, Appellant\", \"name_abbreviation\": \"Garton v. Garton\", \"decision_date\": \"1995-06-21\", \"docket_number\": \"No. 93-1940\", \"first_page\": \"828\", \"last_page\": \"834\", \"citations\": \"533 N.W.2d 828\", \"volume\": \"533\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:22:14.829012+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and TERNUS, JJ.\", \"parties\": \"Cynthia GARTON, Appellant, v. Gilbert GARTON, Executor of the Estate of George R. Garton; Richard C. Garton; Security Bank of Kansas City; George R. Haydon, Jr., Personal Representative of the Estate of Edwin C. Borserine, Deceased, Appellees, and Alice Cockrell, Appellant.\", \"head_matter\": \"Cynthia GARTON, Appellant, v. Gilbert GARTON, Executor of the Estate of George R. Garton; Richard C. Garton; Security Bank of Kansas City; George R. Haydon, Jr., Personal Representative of the Estate of Edwin C. Borserine, Deceased, Appellees, and Alice Cockrell, Appellant.\\nNo. 93-1940.\\nSupreme Court of Iowa.\\nJune 21, 1995.\\nCarlton G. Salmons of Austin, Gaudineer, Austin, Salmons & Swanson, Des Moines, for appellant Cynthia Garton.\\nSteven C. Jayne, Des Moines, for appellant Alice Cockrell.\\nThomas M. Cunningham of Shearer, Tem-pler, Pingel & Kaplan, P.C., West Des Moines, for appellee George R. Haydon, Jr.\\nJames D. Meyer of the Meyer Law Firm, Chariton, for appellee Gilbert Garton.\\nJohn E. Orell, Jr., and Hugh J. Cain of Hopkins & Huebner, P.C., Des Moines, for appellee Security Bank.\\nRichard C. Garton, pro se, Pittsburg, Kansas.\\nConsidered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and TERNUS, JJ.\", \"word_count\": \"3218\", \"char_count\": \"20151\", \"text\": \"NEUMAN, Justice.\\nThis is a dispute among creditors over their right to claim some portion of defendant Richard Garton's inheritance. Plaintiff Cynthia Garton, Richard's former wife, petitioned for a creditor's bill lien to enforce her judgment for unpaid spousal and child support. Ruling by way of summary judgment, the district court found that Cynthia's lien against Richard's beneficial interest was inferior to claims already established in the proceeds by Richard's other creditors, defendants George R. Haydon, Jr. and Security State Bank. We affirm.\\nI. Background Facts and Proceedings.\\nCynthia and Richard Garton were formerly husband and wife. In October 1985, they borrowed $165,000 from Security Bank of Kansas City (hereinafter \\\"Security Bank\\\") secured by a deed of trust on jointly owned real estate. When the Gartons defaulted on the payments, Security Bank foreclosed the deed of trust and ultimately obtained a deficiency judgment against them in the sum of $110,000.\\nRichard Garton was also indebted to George R. Haydon, Jr., personal representative of the estate of Edwin C. Borserine, from whom Richard had borrowed $25,000. In May 1988, Haydon secured a judgment against Richard for the principal sum with interest. The judgment was registered in the Iowa District Court for Lucas County pursuant to the Iowa Uniform Enforcement of Foreign Judgments Act. See Iowa Code eh. 626A (1993).\\nContemporaneously with these financial difficulties, the Gartons' marriage deteriorated. A Nebraska decree of divorce was filed January 8, 1990. Under the decree, Cynthia was awarded alimony and child support for the parties' two sons. Richard has not fulfilled this obligation, and at least $27,000 remains unpaid. The decree also ordered Richard to hold Cynthia harmless for the debts to Security Bank and Haydon.\\nAlso in January 1990, Richard's father, Gordon Garton, died. As one of three heirs, Richard stood to inherit one-third of a gross estate totaling $900,000. He immediately negotiated a promissory note to the Hawkeye Bank in Chariton for a short-term loan of $125,000, giving as security an assignment of his beneficial interest in his father's estate.\\nMeanwhile, under a duly executed garnishment on Haydon's judgment, the sheriff of Lucas County, Iowa, garnished the executor of the Garton estate on April 20, 1990. Following notice to Richard and answer by the garnishee, the district court issued the following judgment and order condemning funds in the hands of the executor:\\nIt is hereby ordered that so much of said funds or property of judgment debtor in the possession of garnishee as is necessary to and will pay the judgment herein in the amount of $25,000 with interest thereon at the per diem rate of $14.28 from the date below written is hereby condemned and appropriated for application on plaintiffs judgment. The garnishee is hereby ordered to turn over so much of said funds or property to the sheriff of Lucas County, Iowa, for delivery to the plaintiff/judgment creditor to satisfy said judgment in accordance with distribution schedules made by the Probate Court, and subject to the payment of federal and state taxes and expenses of administration.\\nWhen Security Bank learned of Richard's potential inheritance, it also sought to stake its claim. A settlement reached between Richard and the bank in August 1990 provided that the bank would release all claims against Richard and Cynthia upon the payment of $90,000. The payment would be made pursuant to a contemporaneous assignment of estate proceeds, executed by Richard, which included the executor's agreement to be bound by the assignment, \\\"subject, however, to any superior claims of other creditors, or order of court directing the [executor] to do other than directed herein.\\\"\\nMore than a year later, just days before the executor filed his final report seeking court approval of the foregoing distributions along with the expenses of administration, Cynthia Garton filed a petition for a creditor's bill hen. See Iowa Code \\u00a7 630.16-.18. She sought a declaration that her Nebraska judgment for child support and alimony was entitled to full faith and credit in the Iowa district court; that she was entitled to a hen against Richard's undistributed share in his father's estate for the arrearage; and that her judgment was entitled to priority over those held by Richard's other creditors. Cynthia's mother, Alice Cockrell, filed a similar petition the following day based on a $30,000 judgment she had obtained against Richard on March 1, 1991.\\nAfter payment of taxes and administrative expense, Richard's anticipated share of the estate totaled no more than $120,000. Upon the agreement of ah parties concerned, the district court entered an order delaying distribution until the priority of competing claims could be determined. Orders were entered permitting the necessary parties to be interpleaded. Various answers and cross-claims were filed. Discovery was undertaken and eventually motions for summary judgment were filed by Haydon and Security Bank. Following hearing, the district court granted the motions. It ordered distribution of available funds in this order: Haydon, Security Bank, Cynthia, and Alice Cockrell. This appeal by Cynthia, joined by Alice Cockrell, followed.\\nII. Scope of Review.\\nBecause Cynthia's petition was filed in equity, our review would ordinarily be de novo. See Iowa RApp.P. 4. As between Cynthia and Haydon, however, the parties concede there are no disputed issues of material fact. Thus the question is whether the district court properly entered judgment for Haydon as a matter of law. Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868, 872 (Iowa 1984). As for the judgment favoring Security Bank, Cynthia claims the court's summary action was improper because a disputed fact issue exists over Cynthia's allegation of a fraudulent conveyance. Thus we review that claim in the light most favorable to Cynthia's resistance. The question is whether the alleged factual dispute is material and, if not, whether the district court properly applied the law. Ottumwa Hous. Auth. v. State Farm Fire & Casualty Co., 495 N.W.2d 723, 726 (Iowa 1993).\\nIII. Issues on Appeal.\\nCynthia attacks the district court's decision on three fronts. First, she claims Hay-don's lien was not properly perfected, thus rendering the garnishment and subsequent order condemning funds inferior to her own lien. She next claims that disputed facts surrounding Security Bank's assignment from Richard preclude summary judgment for the bank as a matter of law. She concludes with a public policy argument that her unpaid judgment for spousal and child support should take precedence over all competing judgments. We shall consider the arguments in turn.\\nA. Haydon judgment. Cynthia begins by claiming that any attempt by Haydon to garnish Richard's distributive share in the estate is prohibited by statute and at common law. The claim is entirely without merit.\\nIowa Code section 642.1 grants judgment creditors the right to garnish an executor \\\"for money due from decedent.\\\" This court long ago interpreted this statute as repealing the rule of custodia legis, a doctrine that formerly protected money or property in the hands of an executor from garnishment. Boyer v. Hawkins, 86 Iowa 40, 42-43, 52 N.W. 659, 659-60 (1892). This court specifically held in Boyer that the legislature intended by this repeal to permit an executor to \\\"be garnished as to a legacy or distributive share.\\\" Id. at 43, 52 N.W. at 660. The court reaffirmed Boyer in Geiger v. Gaige, 105 N.W. 1007 (Iowa 1907). There this court characterized as \\\"well-settled\\\" the right of a judgment creditor to garnish an executor for the distributive share of a beneficiary. Id. at 1008.\\nThe authority upon which Cynthia relies pertains solely to attempts by creditors to garnish an executor's personal funds for a decedent's debts, or attempts to garnish an estate for debts owed by the decedent. See, e.g., Shepherd v. Bridenstine, 80 Iowa 225, 226-27, 45 N.W. 746, 747 (1890); Marion County Bank v. Smith, 205 Iowa 203, 204-09, 217 N.W. 857, 858-59 (1928). Likewise the statute upon which Cynthia relies, Iowa Code section 633.430, speaks to the question of levy and execution under any judgment \\\"against a decedent or personal representative.\\\" It simply has no application to the garnishment of funds due a distributee.\\nCynthia next contends that Richard's January 1990 assignment to Hawkeye Bank of \\\"all right, title and interest\\\" in the estate of George Garton effectively exhausted the funds available to Haydon for garnishment in April 1990. She rightly notes that garnishment is effective only to the extent of a person's interest in the property garnished. Van Maanen v. Van Maanen, 360 N.W.2d 758, 761 (Iowa 1985). But, by its terms, Richard's assignment encumbered his distributive share only to the extent of his indebtedness to Hawkeye Bank. At the time the security was given, Richard's undistributed share was anticipated to be $250,000. The remainder was available for encumbrance as Richard saw fit. Moreover, the debt to Hawkeye was fully repaid well in advance of the order condemning funds in the garnishment proceeding.\\nFinally, Cynthia points to Iowa case law that suggests a garnishment standing alone \\\"creates no specific lien upon the property or money in the hands of the garnishee.\\\" Watts v. Southern Surety Co., 216 Iowa 150, 155, 248 N.W. 347, 350 (1933); see also Pierre v. Pierre, 210 Iowa 1304, 1309-10, 232 N.W. 633, 635 (1930) (no lien is obtained by garnishment, only a right to proceed against the garnishee personally). But see In re Aztec Concrete, Inc., 143 B.R. 537, 539 (Bankr.S.D.Iowa 1992); In re Yetter, 112 B.R. 301, 303 (Bankr.S.D.Iowa 1990) (holding as matter of Iowa law that garnishment creates lien as of date of service); Conklin v. Iowa Dist. Court, 482 N.W.2d 444, 446 (Iowa 1992) (garnishment proceedings constitute valid prepetition lien). She overlooks the fact, however, that Haydon rests his claim of priority, not on the garnishment alone, but on the subsequent judgment and order which condemned so much of Richard's property in the garnishee's hands as would satisfy Hay-don's debt plus accrued interest. This order condemning funds, secured more than one year before either Cynthia or Alice Cockrell filed their petitions to establish a creditor's bill lien, extinguished any right or interest Richard held in the funds so condemned as of the date of garnishment. Kinart v. Churchill, 210 Iowa 72, 75-76, 230 N.W. 349, 350 (1930).\\nWe simply find unpersuasive Cynthia and Alice Cockrell's bare assertion that their creditor's bill liens, granted pursuant to Iowa Code section 630.18 upon filing of petitions under section 630.16, so perfected their claims as to grant them priority over Hay-don's judgment as a matter of law. To the contrary, we believe equity dictates that the \\\"priority by execution\\\" rule applicable in the real property context should apply equally in the case of perfected executions on personalty. See Kesterson v. Tate, 94 Iowa 665, 63 N.W. 350, 351 (1895); Lippencott, Johnson & Co. v. Wilson, 40 Iowa 425, 427 (1875). The district court was correct in so ruling.\\nB. Security Bank's assignment. Cynthia's challenge to the judgment for Security Bank rests on her belief that a factual dispute exists over her claim that Richard's assignment to the bank was fraudulent and, therefore, invalid. She argues the controversy was not ripe for summary judgment. But reviewing the facts, as we must, in the light most favorable to Cynthia, we conclude that the court correctly ruled that no proof of fraudulent conveyance exists and thus Security Bank's assignment takes priority over Cynthia's subsequent filing as a matter of law.\\nIt is true that fraud committed in the assignment of an inheritance, whether actual or constructive, will invalidate the assignment. Klingensmith v. Klingensmith, 193 Iowa 350, 354-55, 185 N.W. 75, 77 (1921). A fraudulent conveyance is one in which the debtor, with the intent to delay or defraud, seeks to place assets beyond the reach of creditors, to the prejudice of their legal or equitable rights. Graham v. Henry, 456 N.W.2d 364, 366 (Iowa 1990).\\nIn the absence of statutory regulation, however, a debtor may prefer one creditor over another. First State Bank, Belmond v. Kalkwarf, 495 N.W.2d 708, 712 (Iowa 1993); Production Credit Ass'n of Midlands v. Shirley, 485 N.W.2d 469, 472 (Iowa 1992). So long as the creditor acts in good faith to protect its own interest, and does not accept the conveyance with the purpose of aiding a debtor's fraudulent motives, a preferential transfer will be honored. Shirley, 485 N.W.2d at 472; Rouse v. Rouse, 174 N.W.2d 660, 668 (Iowa 1970).\\nEach claim of fraudulent conveyance must be decided upon its own peculiar facts. Rouse, 174 N.W.2d at 667. The decision must be informed by a review of all the circumstances surrounding the transaction. Shirley, 485 N.W.2d at 472. To aid that determination, this court has identified the following badges, or indicia, of fraud: (1) inadequacy of consideration for the transfer; (2) insolvency of the debtor; (3) pendency or threat of third-party litigation; (4) secrecy or concealment; (5) departure from the usual method of business; (6) reservation of benefits to the debtor; and (7) retention by the debtor of possession of the property. Id. It is important to note that fraud may not be presumed; it must be proven by clear and convincing evidence. Id. at 473.\\nApplying this law to the undisputed facts before us, we conclude \\u2014 as did the district court \\u2014 that no legal basis exists to set aside Richard's assignment to Security Bank. First, valuable consideration was given by both Richard and the bank in exchange for the assignment. See First Nat'l Bank in Fairfield v. Frescoln Farms, Ltd., 430 N.W.2d 432, 435 (Iowa 1988). Entitled to recover $110,000 plus accrued interest on its deficiency judgment, the bank compromised and agreed to release both Richard and Cynthia upon payment of $90,000 out of Richard's inheritance.\\nClearly Richard and the bank were not related by blood, nor does the record contain proof that Security Bank knew of any pending litigation involving Richard as a debtor. At all times the property in question remained in possession of the executor, not Richard. Moreover, the bank's willingness to accept an assignment of future expectancy in satisfaction of debt does not depart from normal banking practices.\\nCynthia makes much of the fact that she was not advised about the assignment, thereby suggesting the transaction was cloaked in secrecy and, hence, fraud. However, the law does not require that notice of assignment be given. Broyles v. Iowa Dep't of Social Servs., 305 N.W.2d 718, 723 (Iowa 1981). The assignment was filed of record in Lucas County.\\nMore important, Cynthia advances no reasonable claim that she was prejudiced by the conveyance. In return for the assignment, she was released from her obligation to Security Bank, a personal liability that existed irrespective of Richard's legal duty to hold her harmless on the debt. In the absence of any proof that Security Bank acted other than in good faith to protect its interest, the district court correctly recognized the superiority of its assignment from Richard as a matter of law.\\nC. Public policy. As a final proposition, Cynthia seeks to reverse the court's ruling on the premise that public policy favors the payment of child support obligations ahead of other debts. She cites both statutory and case law authority that she believes supports her claim. Her reliance on the authority advanced, however, is misplaced.\\nCynthia first claims that Haydon's garnishment, even if valid, must be subordinated to her creditor's bill lien for unpaid child support in accordance with Iowa Code section 642.24. That statute reads:\\nThe court shall include in any order for garnishment a requirement that any amount garnished for the payment of a support obligation, whether or not the amount represents a current or delinquent support obligation, shall first be paid out of the garnished funds, after subtracting applicable fees related to the issuance of the specific garnishment, before any amounts garnisheed for other purposes are paid out of the garnisheed funds.\\nIowa Code \\u00a7 642.24. By its terms, the section provides for prioritization of funds generated within a particular garnishment. It does not, as Cynthia claims, compel the court to prioritize claims between competing creditors.\\nSection 642.24 presupposes garnishment by a creditor with multiple claims for different debts, among them unpaid support. In such a case, the statute makes plain that funds garnished must first be applied toward current or delinquent child support awards. But we find nothing in the language of section 642.24 to suggest that a court must review every garnishment order in light of other garnishment actions \\u2014 not then before the court \\u2014 which might seek to enforce the debtor's unsatisfied child support obligations. Such a requirement is neither compelled by the statute nor consistent with good sense.\\nAs for Security Bank's assignment, Cynthia claims it should be set aside as violative of the public policy granting child support obligations the highest priority. In support she cites In re Marriage of McMorrow, 342 N.W.2d 73, 76 (Iowa 1982), wherein this court elevated a parent's obligation of support above her homestead rights, and Anthony v. Anthony, 204 N.W.2d 829, 832-34 (Iowa 1973), where this court voided a parental contract that relieved a former spouse from the obligation to provide support. In neither case, however, was the court concerned with the competing claims of third-party creditors. They are thus distinguishable from the case before us. Cf. Smith v. Brown, 513 N.W.2d 732, 734 (Iowa 1994) (holding husband's lien against homestead is assignable to third party, but not subject to wife's judgment for unpaid child support that accrued after assignment but before lien ripened).\\nThere can be no doubt that our own legislature, and others, have wisely strengthened child support collection efforts in recent years. Moreover, neither judgment creditor disputes the fact that Richard has wrongly ignored his financial obligation to Cynthia and his sons. But neither beefed up legislation nor Richard's fiscal irresponsibility can justify the realignment of creditor priorities long established at common law. The right first acquired is, as a rule, superior to those that follow. Briley v. Madrid Improvement Co., 255 Iowa 388, 389-90, 122 N.W.2d 824, 825 (1963). Here both Haydon and Security Bank perfected their creditors' rights to Richard's inheritance long before Cynthia asserted hers. We know of no public policy demanding a reversal of their positions.\\nIV. Conclusion.\\nWe have considered all of the arguments advanced by Cynthia and her mother, whether discussed or not, and find them to be without merit. Accordingly, we affirm the judgment of the district court which granted priority to the claims of Haydon and Security Bank over the petitions for creditor's bill liens filed by Cynthia Garton and Alice Cock-rell.\\nAFFIRMED.\"}"

iowa/10785834.json

@@ -0,0 +1 @@
+"{\"id\": \"10785834\", \"name\": \"Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees\", \"name_abbreviation\": \"Jansen v. Harmon\", \"decision_date\": \"1969-01-14\", \"docket_number\": \"No. 53171\", \"first_page\": \"323\", \"last_page\": \"330\", \"citations\": \"164 N.W.2d 323\", \"volume\": \"164\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:04:00.703385+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur.\", \"parties\": \"Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees.\", \"head_matter\": \"Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees.\\nNo. 53171.\\nSupreme Court of Iowa.\\nJan. 14, 1969.\\nRonald E. Runge, of Runge & Runge, Sioux City, for appellants.\\nJ. R. Miller, of Miller, Miller & Miller, Cherokee, for appellees.\", \"word_count\": \"3277\", \"char_count\": \"20340\", \"text\": \"MASON, Justice.\\nPlaintiffs Raymond W. and Bernadine Jansen appeal from trial court's ruling sustaining defendant Louie Katzman's special appearance attacking the court's jurisdiction of the subject matter of plaintiffs' action under the provisions of rules 66 and 104(a), Rules of Civil Procedure.\\nJansen and his wife had joined in a law action, individually alleging in separate divisions specific acts of negligence and the doctrine of res ipsa loquitur. Each sought separate recovery for injuries sustained by the husband when he was struck on the head and body by a wooden post falling down an elevator shaft from the second floor of Katzman's building.\\nMrs. Jansen's claim for damages is based on alleged loss of her husband's consortium. Her right to recover is coextensive with the right of her husband. Ordinarily the wife is not entitled to conse quential damages for injuries to her husband where defendants are not guilty of a tort which would give a right of action to the husband. Ziegler v. United States Gypsum Co., Inc., 251 Iowa 714, 715-716, 102 N.W.2d 152, 153, quoting from 41 C.J. S. Husband and Wife \\u00a7 401c, and citing other authorities. Mr. Jansen will therefore he referred to as plaintiff.\\nKatzman and his tenant Ronald Harmon, who operated as Harmon Heating Service, were named as defendants. Since Harmon is not a party to this appeal Louie Katz-man, sometimes known as Louis Katzman, will be referred to as defendant.\\nI.Plaintiff had been employed a number of years as a bookkeeper and salesman in a business owned and conducted by defendant under the trade name National Auto Parts Company. Defendant also owned the Booth building in Cherokee located some distance from the auto parts store. The operation and maintenance of this apartment and business building were not connected in any way with defendant's operation of his auto parts company.\\nJune 1, 1967, defendant directed plaintiff to stop at the Booth building on his way home from work and load various items belonging to National Auto Parts from the loading dock onto the freight elevator in the Booth building. While standing on the freight elevator plaintiff was struck on the head and body by a wooden post which fell down the elevator shaft inflicting the injuries giving rise to plaintiffs' action.\\nNeither plaintiff nor defendant had rejected any provision of the Workmen's Compensation Act, chapter 85, Code, 1966.\\nDefendant's special appearance challenged the jurisdiction of the district court on the ground plaintiff, at the time of injury, was defendant's employee acting in the course of his employment and had made claim for Workmen's Compensation which was accepted as compensable by defendant's carrier. He asserts plaintiff is precluded from bringing suit against him as a third party tort feasor. The special appearance was supported by affidavits showing that .proper proceedings had been had before the industrial commissioner, as the result plaintiff was drawing and accepting weekly compensation payments from Katzman's insurance carrier.\\nThe trial court held the Iowa Workmen's Compensation Act was plaintiff's exclusive remedy against defendant.\\nPlaintiff concedes in written argument that he was an employee of National Auto Parts, was within the scope of his employment at the time of injury and was being paid Workmen's Compensation benefits by National Auto Parts Company.\\nII. Plaintiffs assert the court erred in sustaining defendant's special appearance.\\nThey contend since plaintiff was not em-. ployed by defendant in his capacity as owner of the apartment building where the injury occurred, defendant cannot be given an employer's status in this separate entity and is subj ect to suit at common law.\\nPlaintiffs assert the present facts do not deal with the situation of concurrent or joint negligence of an employer and a third party tort feasor or with the case of an employee suing a negligent employer as third party tort feasor which plaintiffs concede is clearly prohibited by the Iowa Workmen's Compensation Act. They do maintain their action is based on defendant's negligence as owner of a building unrelated to plaintiff's employment, not as an employer.\\nThey further contend the issue whether plaintiff was precluded from joining defendant as a third party tort feasor was strictly a matter of defense and a factual situation rather than jurisdictional; the question cannot properly be determined by special appearance.\\nIII. We first consider plaintiffs' contention the court's jurisdiction of the subject matter cannot be properly determined by special appearance.\\n\\\"A special appearance has for its purpose the interposing of objections to jurisdiction, such being the sole question placed before the court by such a restricted appearance. [Citing authority]\\\" Tice v. Wilmington Chemical Corp., 259 Iowa 27, 34, 141 N.W.2d 616, 621.\\nSince a hearing had upon a special appearance is a special proceeding not tria-ble in equity, it is not reviewable de novo on appeal but only on errors assigned with t\\\"e court's findings .of fact having the force and effect of a jury verdict. Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 34-35, 141 N.W.2d at 621-622, and citations.\\nWhere \\\"a defendant, by special appearance, makes a direct attack upon the jurisdiction of a court the burden is on plaintiff to sustain the requisite jurisdiction, but once a prima facie showing has been made by him the burden of going forward with the evidence is upon defendant to overcome or rebut, if possible, such pri-ma facie case, [Citing authorities]\\\" Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 47, 143 N.W.2d 86-87, supplementing opinion in 141 N.W.2d 616.\\nIn determining the jurisdictional issue presented by a special appearance, courts accept allegations of plaintiff's petition as true and affidavits which may be submitted in support thereof, rules 80(b) and 116, R.C.P., stand as a verity unless contradicted. Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 34, 141 N.W.2d at 621, and citations.\\nPlaintiffs allege in those divisions of their petition directed against Katzman that Jansen, having the status of an invitee, was injured by Katzman's negligence while on premises possessed by Katzman.\\nThe trial court found that at the time of his injury plaintiff was Katzman's employee acting within the scope of his employment; that National Auto Parts is simply defendant's trade name. There is substantial evidence to support these findings. As stated, plaintiff concedes he was being paid Workmen's Compensation benefits by defendant's insurance carrier.\\nPlaintiff's contention being considered in this division presents the question, Does the district court have jurisdiction of the subject matter of the action alleged?\\nThe rights and remedies of an injured employee against an employer for industrial injuries, that is personal injuries sustained by an employee arising out of and in the course of his employment, have been taken out of the general, original jurisdiction of the district court and placed in that class of cases exclusively in the jurisdiction of the industrial commissioner by chapter 85. Groves v. Donohue, 254 Iowa 412, 419, 118 N.W.2d 65, 69 and Price v. King, 259 Iowa 921, 926, 146 N.W.2d 328, 331.\\nSection 85.3, subsection 1, provides:\\n\\\"1. Except as provided by this chapter, it shall be conclusively presumed that every employer has elected to provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment, and in such cases, the employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury\\\"\\nIn Groves v. Donohue, supra, 254 Iowa at 419, 118 N.W.2d at 68-69, we said:\\n\\\"Section 85.20, provides the rights and remedies provided in this chapter for an.employee on account of an industrial injury shall be exclusive of all oiher remedies, and further provides the employee shall be conclusively presumed to have elected to take compensation as provided until notice in writing shall have been served on the employer and industrial commissioner.\\n>Jc ?f{\\n\\\"Sections 85.4 through 85.15, Code of Iowa, 1962, provide that either or both the employee and employer may reject the provisions of the chapter. Section 85.17, Code of Iowa, 1962, provides where they have not given notice every contract of hire shall be construed as an implied agreement on the part of the employer to pay and on the part of the employee to accept compensation as provided in this chapter for all personal injuries sustained arising out of and in the course of the employment.\\\"\\nSection 85.22 provides in part:\\n\\\"Liability of others \\u2014 subrogation. When an employee receives an injury for which compensation is payable under this chapter, and which injury is caused under circumstances creating a legal liability against some person other than the employer to pay damages, the employee, or his dependent, or the trustee of such dependent, may take proceedings against his employer for compensation, and the employee or, in case of death, his legal representative may also maintain an action against such third party for damages. \\\"\\nPlaintiffs are seeking recovery for injuries which they allege were caused by Katzman's negligence. Defendant is urging that the industrial commissioner has exclusive jurisdiction because Jansen was his employee and the injuries were sustained in the course of Jansen's employment. For the district court to have jurisdiction of such subject matter it is necessary for the employee to allege either the rejection of chapter 85 as provided in sections 85.4 through 85.15 or the failure of the employer to insure as provided in section 87.21. Plaintiffs alleged neither condition precedent.\\nAlthough plaintiffs' petition does not state Jansen's injuries were sustained in the course of his employment by defendant, affidavits attached to defendant's special appearance so state and they are not controverted. A jurisdictional question of the subject matter of the action alleged is thus presented.\\n\\\"Where a special statute has placed a particular class of cases in the jurisdiction of the industrial commissioner unless certain conditions precedent are alleged, the district court does not have jurisdiction of the subject matter unless the conditions precedent are alleged. Hlas v. Quaker Oats Co., 211 Iowa 348, 233 N.W. 514.\\\" Groves v. Donohue, supra, 254 Iowa at 422, 118 N.W.2d at 70.\\nRule 104, R.C.P., provides: \\\"Exceptions. Every defense in law or fact to any pleading must be asserted in the pleading responsive thereto, if one is required, or if none is required, then at the trial, except that:\\n\\\"(a) Want of jurisdiction of the person, must be raised by special appearance ; and want of jurisdiction of the subject matter may be so raised. \\\"\\nWe hold that the question of the court's jurisdiction of the subject matter was properly raised by defendant's special appearance. In support see Hlas v. Quaker Oats Co., 211 Iowa 348, 233 N.W. 514 and Bridgmon v. Kirby Oil Industries, Inc., 250 Iowa 229, 93 N.W.2d 771.\\nThis case is distinguishable from Fabricius v. Montgomery Elevator Co., 253 Iowa 860, 114 N.W.2d 297 and Groves v. Donohue, supra. In Fabricius the matters urged were strictly matters of defense and it was there held that such could not be raised by special appearance. In Groves defendants urged that the industrial commissioner had exclusive jurisdiction because of the fact situation surrounding the happenings of the injury and the relation of the parties. Negligence and deceit were the subject matter of plaintiff's claim there. Here, as previously noted, plaintiffs' claim is against Jansen's employer for negligence occurring during the course of employment.\\nIV. Plaintiffs further contend under their assigned error defendant cannot be given an employer's status in the separate entity as owner of the Booth building. They argue the proper approach is whether the Workmen's Compensation Act abolishes tort actions against third parties, not whether it expressly authorizes them.\\nWe agree \\\"a statute will not be construed as taking away a common law right existing at the time of its enactment unless that result is imperatively required [Citing authorities].\\\" Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 388, 101 N.W.2d 167, 174. In Price v. King, supra, 259 Iowa at 924, 146 N.W.2d at 329, we said, \\\"Clearly the act does not deny an employee the common law right to recover damages caused by the negligence of a third person even though he has received workmen's compensation benefits for the same injury. This court has so held. [Citing authorities].\\\"\\nSection 85.22 specifically reserves this right to sue at common law by an employee whose injury has been caused under circumstances creating a legal liability against some person other than the employer.\\nChapter 547, Code, 1966, provides permission to conduct a business under any trade, or assumed name upon compliance with certain conditions specified in the chapter.\\nLouie Katzman, possessor of the Booth building in Cherokee, is not a distinct and separate entity from Jansen's employer, Louie Katzman who conducts business under the trade name National Auto Parts Company. As owner of the building he is not a person other than Jansen's employer against whom plaintiffs may maintain an action as contemplated by section 85.22.\\nWilliams v. Hartshorn, 296 N.Y. 49, 69 N.E.2d 557, 558, presented the question: \\\"Is the administrator of a partnership employee, who died as a result of injuries arising out of and in the course of his employment, precluded from maintaining a common-law action for negligence against the partner who owned the premises where the partnership business was carried on and where the employee was killed ?\\\"\\nIn holding that the Workmen's Compensation Law constituted the administrator's exclusive remedy, the court said:\\n\\\"Regardless of his status as owner of the premises where the injury occurred, an employer remains an employer in his relations with his employees as to all matters arising from and connected with their employment. He may not be treated as a dual legal personality, 'a sort of Dr. Jekyl and Mr. Hyde.' \\\"\\nIn reaching its decision the court relied upon the earlier case of Winter v. Peter Doelger Brewing Co., Inc., 226 N.Y. 581, 123 N.E. 895. In that case plaintiff, employed as a delivery man by defendant brewing company, was injured in the course of his usual work while delivering beer to a saloon. Though the premises were located at some distance from the brewery, they were owned and controlled by defendant, and it was defendant's own negligent conduct- \\u2014 the improper maintenance of an elevator \\u2014 that occasioned the injury. Nevertheless, it was held that the employee could not resort to an action at law, since the employer's exclusive liability was under the Workmen's Compensation Law.\\nIn Bross v. City of Detroit, 262 Mich. 447, 247 N.W. 714, 715, plaintiff fireman was injured in a collision between the hook and ladder on which he was riding and a municipally owned street car. In affirming a judgment based on a directed verdict the court said:\\n\\\"It is contended by plaintiff that, as the city of Detroit owned and operated its street railway system, the agency that caused his injury, which was a function distinct from that in which he was employed, the city was 'some person other than the employer' within the meaning of the above-quoted provision of the statute.\\n\\\"No authorities are cited by the plaintiff to support this contention. It is too plainly untenable to require argument. Nor is there any merit to the claim that, because the city was operating a street railway system as a private enterprise, the Workmen's Compensation Law has no application.\\\"\\nDe Guiseppe v. City of New York, 188 Misc. 897, 66 N.Y.S.2d 866, 867, affirmed, De Guiseppe v. City of New York, 273 App.Div. 1010, 79 N.Y.S.2d 163, involved an action for damages for the death of an employee of the city's department of sanitation who, while performing duties within the scope of his employment, was struck by a municipally owned trolley car negligently operated by an employee of the city's board of transportation. There plaintiff contended that since the two agencies of the city were separate and distinct, the sanitation department not being a business for pecuniary gain while the board of transportation was, the decedent was not killed by the negligence of another in the same employ, hence the right to compensation was not the exclusive remedy.\\nIn rejecting such contention the court said:\\n\\\"The statute, of course, saves to an employee the right to proceed against a third party in a common-law action, but it is obvious that a defendant cannot simultaneously be two distinct entities, i. e., an employer and also a third party; for a third party is one who has no connection whatever with the relationship of employer and employee \\u2014 a stranger to that relationship. But here, the employer of the trolley car operator was the City of New York and the employer of plaintiff's intestate was likewise the City of New York. No amount of argument on plaintiff's part, however forceful or fanciful, can provide an escape from this salient fact and destroy the applicability of section 11 [Workmen's Compensation Act].\\\" The court relied on the authority of Williams v. Hartshorn, Winter v. Peter Doelger Brewing Co., Inc., and Bross v. City of Detroit, all supra, in reaching its decision.\\nThe De Guiseppe case and the three cases which we have cited as relied on by the New York court are again cited and followed in Walker v. City and County of San Francisco, 97 Cal.App.2d 901, 219 P.2d 487, 490. There decedent, a member of the San Francisco fire department, was on his fire truck responding to an alarm when a street car of the municipal railway ran into the truck at an intersection resulting in fatal injuries.\\nThe complaint shows decedent was an employee of the city and county which owns and operates the municipal railway. His widow had brought an action to recover damages for wrongful death. The city and county was granted judgment on the pleadings. The widow appealed contending that because the railway was operated by defendant in its proprietary capacity, while fire protection was a governmental function, the problem should be treated as if decedent had been an employee of one corporate entity, functioning govern-mentally, and the motorman and conductor (whose negligence was admitted for the purpose of the motion) were employees of another, functioning in a proprietary capacity. Defendant stood on the fact decedent had been fatally injured within the course of his employment and his dependents were limited, so far as his employer was concerned, to the award of compensation under California's Labor Code.\\nIn reaching its conclusion that the widow's exclusive remedy was under the compensation provisions of the Labor Code, the court quoted from Williams v. Hartshorn, supra, and other cases cited herein.\\n\\\"Attempts have several times been made to subdivide an employer, such as a municipality, and assert common-law rights on behalf of an employee of one city department against a different city department as if it were a stranger. These attempts have been consistently unsuccessful.\\\" 2 Larson's Workmen's Compensation Law, section 72.10.\\nAlthough none of the authorities cited above involve an employer operating under a trade name as here, the reasoning appearing in those opinions furnishes support for our position.\\nThe cases cited by plaintiffs in support of their position involve separate corporations having common officers and stockholders. They do not aid plaintiffs here.\\nThe Workmen's Compensation Act provided the exclusive remedy for plaintiffs.\\nThe action of the trial court in sustaining defendant's special appearance is\\nAffirmed.\\nAll Justices concur.\"}"

iowa/11607988.json

@@ -0,0 +1 @@
+"{\"id\": \"11607988\", \"name\": \"STATE of Iowa, Appellee, v. David Max SMOTHERS, Appellant\", \"name_abbreviation\": \"State v. Smothers\", \"decision_date\": \"1999-03-24\", \"docket_number\": \"No. 97-1234\", \"first_page\": \"721\", \"last_page\": \"724\", \"citations\": \"590 N.W.2d 721\", \"volume\": \"590\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:32:38.051135+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and CADY, JJ.\", \"parties\": \"STATE of Iowa, Appellee, v. David Max SMOTHERS, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. David Max SMOTHERS, Appellant.\\nNo. 97-1234.\\nSupreme Court of Iowa.\\nMarch 24, 1999.\\nLinda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.\\nThomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Michael Clark and Scott E. Schroeder, Assistant County Attorneys, for appellee.\\nConsidered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and CADY, JJ.\", \"word_count\": \"1122\", \"char_count\": \"7268\", \"text\": \"PER CURIAM.\\nThe defendant, David Smothers, was charged with and later convicted of two counts of third-degree burglary. See Iowa Code \\u00a7 713.1, 713.6A (1997). The charges were based on allegations that he burglarized a wig manufacturing business, Today's Modern Option, and an auto parts shop, Skerik's Auto Parts, which are located -within the same building.\\nOn appeal, the defendant argues the businesses are located in the same occupied structure; therefore, his conduct constituted only one burglary. He asserts his trial counsel was ineffective for failing to raise this issue. Finding the businesses are located in separate occupied structures, we affirm his convictions.\\nI. Scope of Review.\\nSmothers' claim of ineffective assistance of counsel is reviewed de novo. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987). To establish ineffective assistance of counsel, Smothers must prove, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from the failure. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996). To sustain his burden of proof on the first prong, Smothers must overcome the strong presumption that his counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987).\\nTo the extent that Smothers' argument turns on the interpretation of a statute, our appellate review is at law. State ex rel. Lankford v. Allbee, 544 N.W.2d 639, 640 (Iowa 1996). Our ultimate goal is to determine legislative intent. State v. Schlemme, 301 N.W.2d 721, 723 (Iowa 1981).\\nII. Are the Businesses Located in Separate Occupied Structures?\\nAn individual who enters an occupied structure, without right, license or privilege, with the intent to commit a felony, assault or theft commits burglary. See Iowa Code \\u00a7 713.1. Smothers does not dispute he entered Today's Modern Option and Skerik's, but he claims both businesses are contained in the one occupied structure; therefore, his conduct constituted only one burglary.\\nThe building or facility at issue encompasses one-half of a city block. It is approximately 25,000 square feet, and was described by one of its owners as \\\"three buildings in one.\\\" Skerik's is located in the original, three-story portion of the facility. Later, a second building was constructed, which houses another business, MLS, Inc. Thereafter, a four-story building was constructed, in which Today's Modern Option is now located. Heavy brick walls were constructed between the buildings, and fire doors were erected connecting each of the buildings. Today's Modern Option leases its premises from the company which owns Skerik's and MLS.\\nIowa Code section 702.12 defines \\\"occupied structure\\\" as follows:\\nAn \\\"occupied, structure\\\" is any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value. Such a structure is an \\\"occupied structure\\\" whether or not a person is actually present. However, for purposes of chapter 713 [burglary], a box, chest, safe, changer, or other object or device which is adapted or used for the deposit or storage of anything of value but which is too small or not designed to allow a person to physically enter or occupy it is not an \\\"occupied structure.\\\"\\nThe crux of Smothers' argument rests on the meaning of \\\"structure.\\\" The Code does not define a \\\"structure\\\"; therefore, the term should be given its ordinary meaning. See State v. Jones, 524 N.W.2d 172, 174 (Iowa 1994) (\\\"Words of a statute are given their plain or ordinary meaning absent legislative definition or particular meaning in the law.\\\"). \\\"Structure\\\" is defined as \\\"something constructed or built.\\\" Webster's Third New Int'l Dictionary 2267 (unabr. ed.1976).Black's Law Dictionary defines \\\"structure\\\" as:\\nAny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind.\\nA combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land.\\nBlack's Law Dictionary 1424 (6th ed.1990).\\nIn arguing that the businesses are contained within one occupied structure, Smothers isolates a portion of the latter definition of \\\"structure\\\" and argues Today's Modern Option and Skerik's Auto Parts are parts composing one structure, focusing on the accessibility between the two businesses by the interior fire doors.\\nWe find Smothers' narrow interpretation of \\\"structure\\\" unpersuasive. We have previously determined that the definition of occupied structure is broad. See State v. Baker, 560 N.W.2d 10, 13 (Iowa 1997). Clearly the portions of the facility at issue constitute \\\"something constructed or built\\\" or \\\"any construction.\\\" The facility's construction history and physical make-up demonstrates that the portions are independent working units which constitute \\\"[a] combination of materials to form a construction for occupancy [or] use.\\\"\\nToday's Modern Option and Skerik's are separate legal entities which occupy independent and distinct portions of the facility. Each has its own entrance from the street, each is separately owned and operated, and each is secured for the most part from access by the other. Although the businesses share common walls and are accessible by interior fire doors, those doors are used for very limited purposes. The evidence is undisputed that the businesses occupy separate premises and conduct their operations exclusive of the other.\\nWe conclude the businesses are located in separate structures used for the purpose of carrying on business. Therefore, Smothers entered two occupied structures.\\nIII. Conclusion.\\nBecause the two businesses are located in separate occupied structures, Smothers committed two burglaries. Smothers' trial counsel was not ineffective for failing to raise this issue. See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (counsel not ineffective for failing to raise meritless issue). We therefore affirm the district court judgment.\\nAFFIRMED.\\n. Smothers was also convicted of two charges of second-degree theft and another third-degree burglary charge. He does not challenge these convictions on appeal.\\n. Other than one interior connecting door leading from Today's Modern Option to Skerik's which was used by Today's Modern Option to reach the loading dock, the interior access doors were used in fire or other emergency situations.\"}"

iowa/11768713.json

@@ -0,0 +1 @@
+"{\"id\": \"11768713\", \"name\": \"AMERICAN FIRE AND CASUALTY CO., Appellant, v. FORD MOTOR COMPANY, Appellee\", \"name_abbreviation\": \"American Fire & Casualty Co. v. Ford Motor Co.\", \"decision_date\": \"1999-01-21\", \"docket_number\": \"No. 97-1142\", \"first_page\": \"437\", \"last_page\": \"440\", \"citations\": \"588 N.W.2d 437\", \"volume\": \"588\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:36:34.650306+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by McGIVERIN, C.J., and HARRIS, CARTER, SNELL, and TERNUS, JJ.\", \"parties\": \"AMERICAN FIRE AND CASUALTY CO., Appellant, v. FORD MOTOR COMPANY, Appellee.\", \"head_matter\": \"AMERICAN FIRE AND CASUALTY CO., Appellant, v. FORD MOTOR COMPANY, Appellee.\\nNo. 97-1142.\\nSupreme Court of Iowa.\\nJan. 21, 1999.\\nPhilip H. Dorff, Jr. and Hugh J. Cain of Hopkins & Huebner, P.C., Des Moines, for appellant.\\nPaul A. Williams of Shook, Hardy & Bacon, LLP, Kansas City, and R. Todd Gaffney of Finley, Alt, Smith, Scharnberg, May &\\u25a0 Craig, P.C., Des Moines, for appellee.\\nDawn R. Siebert, Des Moines, and Frederick M. Haskins of Patterson Law Firm, Des Moines, for amicus curiae-Iowa Insurance Institute.\\nConsidered by McGIVERIN, C.J., and HARRIS, CARTER, SNELL, and TERNUS, JJ.\", \"word_count\": \"1160\", \"char_count\": \"7101\", \"text\": \"HARRIS, Justice.\\nThis case calls for another interpretation of the economic loss theory in a products liability claim, a matter on which the courts widely disagree. The trial court dismissed this suit against a manufacturer because it involved a claim only for loss of the product itself. Although much could be said for the views of those courts in disagreement with us, we cast our lot in Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103 (Iowa 1995); Nelson v. Todd's Ltd., 426 N.W.2d 120 (Iowa 1988); and Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124 (Iowa 1984). Although those eases involved strict liability and negligence claims that failed, they established an analysis that leads to a different conclusion here. We reverse and remand.\\nPlaintiff American Fire & Casualty Co. brought this action as subrogee of its insured Gary Foust. Foust owned a 1991 pickup truck which was designed, manufactured, and distributed by defendant Ford Motor Co. In 1996 the truck caught fire causing property damage to the truck and its contents. After discharging its obligation to Foust under its policy, American Fire brought this products liability action, claiming a defect caused the pickup to catch fire. The action was dismissed on Ford's motion, the trial court concluding dismissal was mandated by our holdings in the above-cited eases.\\nI. When reviewing an order sustaining a motion to dismiss, we view the allegations of the petition in the light most favorable to the petitioner, resolve doubts in the petitioner's favor, and uphold the ruling only if the petitioner could not establish his or her right to judicial review under any state of facts provable under the allegations of the petition. Lundy v. Department of Human Servs., 376 N.W.2d 893, 894 (Iowa 1985).\\nII. The economic-loss theory, although a much more general and doubtless older doctrine, presents special problems in products liability cases. The general doctrine prohibits tort recovery for purely economic losses, consigning such claims to contract law. Nebraska Innkeepers, 345 N.W.2d at 126. The differing ways in which various courts have applied the economic-loss theory in products liability cases is traced in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866-70, 106 S.Ct. 2295, 2300-302, 90 L.Ed.2d 865, 874-76 (1986), a case that established the principles to be applied when federal courts deal with admiralty law.\\nThe Nelson plaintiffs had purchased a curing agent to treat meat, the curing agent didn't work, and the plaintiffs meat spoiled resulting in lost value of the meat and damage to their business reputation. 426 N.W.2d at 121. We held \\\"that purely economic injuries without accompanying physical injury to the user or consumer or to the user or consumer's property is not recoverable under strict liability.\\\" Id. at 123 (emphasis added). The emphasized language carefully leaves room for the present case. We said the damage occasioned by the curing agent \\\"was not a result of anything hazardous or dangerous\\\" and did not occur because the agent damaged the meat in some active way, \\\"but because it failed to work at all.\\\" Id.\\nWe emphasized \\\"the line to be drawn is one between tort and contract rather than between physical harm and economic loss.\\\" Id. at 125. Factors to be considered are the nature of the defect, the type of risk, and the manner in which the injury arose. Id. at 124 (citing Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1173 (3d Cir.1981)). The harm to Nelson's meat fell on the contract side because it was a foreseeable result from a failure of the product to work properly. Id. at 125. The loss related to \\\"a consumer or user's disappointed expectations.\\\" Id. The Nelsons lost the benefit of their bargain and therefore must resort to contract law for remedies. Id. at 124.\\nWe said tort theory is generally available when the harm results from \\\"a sudden or dangerous occurrence, frequently involving some violence or collision with external objects, resulting from a genuine hazard in the nature of the product defect.\\\" Id. at 125 (emphasis added). An example was given: if a fire alarm fails to work and a building burns down, that is considered an \\\"economic loss\\\" even though the building was physically harmed. It was a foreseeable consequence from the failure of the product to work properly. But if the fire was caused by a short circuit in the fire alarm itself, it is not economic loss. Id. at 124 (citing Fireman's Fund Am. Ins. Cos. v. Burns Elec. Sec. Serv., 93 Ill.App.3d 298, 48 Ill.Dec. 729, 417 N.E.2d 131, 133 (Ill.App.Ct.1980)).\\nNelson was revisited in Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103 (Iowa 1995), when the operator of a custom cattle feeding business sued the manufacturer of a growth hormone because the cattle treated with the hormone gained weight slower than expected, were sold later than expected, and the plaintiff lost money because of the delay. We said contract law protects a purchaser's expectation, interest that the product will be fit for its intended use, whereas products liability law concerns risk of injury to a person or the person's property through exposure to a dangerous product. 528 N.W.2d at 107 (cited sources omitted). It can be summarized like this: \\\"defects of suitability and quality are redressed through contract actions and safety hazards through tort actions.\\\" Id. (quoting Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918, 471 N.W.2d 179, 185 (Wis.1991)).\\nThe common thread running through our cases rejecting recovery is the lack of danger created by the defective product. The problem with the curing agent in Nelson and growth hormone in Tomka had only to do with claimed failures to perform as expected. Each plaintiff suffered the loss of the benefit of their bargain. These cases do not bar recovery in the present ease, but rather support it. Both Nelson and Tomka emphasized that hazard and danger distinguished tort liability from contract law. They distinguished the disappointed consumers from the endangered ones. Fire has been characterized as a \\\"sudden and highly dangerous occurrence.\\\" Pennsylvania Glass, 652 F.2d at 1174. A truck starting itself on fire would certainly qualify more as a danger than as a disappointment.\\nThe dismissal of the case must be reversed and the matter remanded to district court to proceed on its merits.\\nREVERSED AND REMANDED.\\nAll justices concur except CARTER, J., who concurs in the result only.\"}"

iowa/12033566.json

@@ -0,0 +1 @@
+"{\"id\": \"12033566\", \"name\": \"STATE of Iowa, Appellee, v. Matias Rios QUINTERO, Appellant\", \"name_abbreviation\": \"State v. Quintero\", \"decision_date\": \"1992-01-22\", \"docket_number\": \"No. 90-44\", \"first_page\": \"50\", \"last_page\": \"52\", \"citations\": \"480 N.W.2d 50\", \"volume\": \"480\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:38:03.010941+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and SNELL, JJ.\", \"parties\": \"STATE of Iowa, Appellee, v. Matias Rios QUINTERO, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. Matias Rios QUINTERO, Appellant.\\nNo. 90-44.\\nSupreme Court of Iowa.\\nJan. 22, 1992.\\nLinda Del Gallo, State Appellate Defender and Shari Barron, Asst. State Appellate Defender, for appellant.\\nBonnie J. Campbell, Atty. Gen., Bruce L. Kempkes, Asst. Atty. Gen., William E. Davis, County Atty., and Joe Grubisich, Asst. County Atty., for appellee.\\nConsidered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and SNELL, JJ.\", \"word_count\": \"1231\", \"char_count\": \"7735\", \"text\": \"HARRIS, Justice.\\nDefendant's convictions of cocaine possession and fifth-degree theft were reversed by the court of appeals. Although we do so for different reasons, we agree that the defendant's convictions must be reversed. We accordingly affirm the decision of the court of appeals, reverse the judgment of the district court, and remand the case for a new trial.\\nDefendant Mat\\u00edas Rios Quintero and his three nephews were arrested for involvement in a drug sales operation. After his arrest on drug and theft charges, Quintero made incriminating statements to an investigating officer. Although the State vigorously contends otherwise, the court of appeals unanimously found the officer coerced the statements by threatening that Quintero's sixteen-year-old nephew would be tried as an adult and sent to prison unless Quintero cooperated.\\nThe officer's taped interview of Quintero satisfies us that the incriminating statements were coerced. The officer speculated that both Quintero and his nephew would be harmed in prison and hinted that the boy would be abused either physically or sexually. The officer also speculated that, unless Quintero's statements matched those of his nephews, he would anger the judge and jury and suffer greater punishment. The officer's statements were made even worse by being misleading. Quinte-ro's sentence would be imposed on the basis of Iowa Code section 902.3 (1989) (indeterminate sentence law), not any statement Quintero made to the officer. The officer also misled Quintero by suggesting that his nephew would automatically be tried as an adult, rather than as a juvenile under Iowa Code section 232.8(1).\\nI. The officer's statements and suggestions plainly qualify as coercion. State v. Mullin, 249 Iowa 10, 14, 85 N.W.2d 598, 600 (1957) (statement is coerced unless it is made of free will and not from fear of any threat of harm). Where, as here, it clearly appears a confession is induced by force, threats, or other improper inducements, the question is one of law for the court alone, and the statements should not be admitted into evidence. Id.\\nII. In Arizona v. Fulminante, \\u2014 U.S. -, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the United States Supreme Court, overruling its prior holdings, held that admission into evidence of an involuntary confession did not demand automatic reversal under the due process clause of the federal Constitution. The Fulminante holding implements a harmless error analysis.\\nIn the present case the court of appeals majority held in effect that Fulminante should not be followed in Iowa as a matter of Iowa constitutional law. The majority held that, under the due process clause of the Iowa Constitution, the admission of an involuntary confession should never be harmless error and should result in an automatic reversal.\\nThe court of appeals minority expressed a view that Fulminante should be followed in Iowa. Under the facts here, however, the minority concluded that admission of Quintero's involuntary confession was not harmless error. On further review the defendant contends that we, like the court of appeals majority, should eschew the Fulminante holding by applying an automatic reversal rule to the due process clause of the Iowa Constitution.\\nWe have consistently claimed authority to interpret provisions in the Iowa Constitution so as to expand on personal liberties as defined by the United States Supreme Court in its interpretations of identical or similar provisions in the federal Constitution. We have, however, been reluctant to exercise that authority. The court of appeals dissenters pointed out that, in Des Moines Joint Stock Land Bank v. Nordholm, construing a different right in our state Constitution, we said:\\nThere is no doubt that this court has the power, in interpreting the Constitution of Iowa, to reach a conclusion on the contract clause different from that reached by the Supreme Court of the United States when interpreting a similar clause of the Federal Constitution; that is to say, so long as the Iowa Constitution, as interpreted by this court, does not violate any provision of the Federal Constitution, there will be no complaint from the federal government.\\nBut assuming that to be true, good policy and a desired consistency between the two Constitutions rather dictate that the interpretation of the two clauses be similar. Such consistency in interpretation will accomplish consistency in operation.\\n217 Iowa 1319, 1335, 253 N.W. 701, 709 (1934).\\nThe court of appeals dissenters continued:\\nIowa courts have seen fit to accord special respect and deference to the United States Supreme Court interpretations of language in the federal Constitution which is similar to language in the Iowa Constitution. See State v. Davis, 304 N.W.2d 432, 434 (Iowa 1981). In fact, when the Iowa and federal Constitutions contain similar provisions, the provisions are usually deemed to be identical in scope, import, and purpose. Id. at 434; Redmond v. Ray, 268 N.W.2d 849, 852 (Iowa 1978); In Interest of Johnson, 257 N.W.2d 47, 49 (Iowa 1977); Chicago Title Ins. Co. v. Huff, 256 N.W.2d 17, 23 (Iowa 1977); Davenport Water Co. v. Iowa State Commerce Comm'n, 190 N.W.2d 583, 593 (Iowa 1971).\\nIII. We need not, and therefore should not, invoke the Iowa Constitution in resolving the present appeal; we have consistently refrained from answering constitutional questions when the issue can be otherwise resolved. This has long been our rule. Dubuque & Dakota Ry. v. Diehl, 64 Iowa 635, 640, 21 N.W. 117, 120 (1884) (we decide constitutional questions only when necessary . parties cannot compel us to do so by waiver of issues or agreement). It is still our rule. In re J.A.N., 346 N.W.2d 495, 498 (Iowa 1984).\\nThe present case lends itself to resolution without resorting to constitutional principles. A coerced confession should not be admitted in evidence because of its inherent lack of reliability. Our cases have long reversed \\u2022 criminal convictions for admitting involuntary confessions. The rule was developed, not as a constitutional principle, but because the law has no way of measuring the improper influence or determining its effect on the mind of the accused. See, e.g., State v. Jay, 116 Iowa 264, 266, 89 N.W. 1070, 1071 (1902). Our more recent cases, which added a constitutional dimension to the rule excluding involuntary confessions, nevertheless persisted in grounding the exclusions of coerced confessions on factors pointing to their lack of reliability. See State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982).\\nWe hold that Quintero's involuntary confession was inadmissible, not on the basis of a constitutional principle, but as a matter of the law of evidence. Its probative value, if any exists, is substantially outweighed by the danger of confusion of issues and would be misleading to the jury under Iowa rule of evidence 403.\\nWe need not speculate whether admission of a coerced confession could ever be harmless. It certainly cannot be said to be harmless in this case.\\nWe have also considered and now reject the State's other assertions, including a claim that Quintero waived error.\\nDECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT OF DISTRICT COURT REVERSED AND REMANDED.\\nAll Justices concur except NEUMAN, J., who concurs in the result.\"}"

iowa/12335551.json

@@ -0,0 +1 @@
+"{\"id\": \"12335551\", \"name\": \"State v. Hall\", \"name_abbreviation\": \"State v. Hall\", \"decision_date\": \"2017-06-07\", \"docket_number\": \"16-0307\", \"first_page\": \"590\", \"last_page\": \"590\", \"citations\": \"902 N.W.2d 590\", \"volume\": \"902\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:50:38.233669+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Hall\", \"head_matter\": \"State v. Hall\\n16-0307\\n06/07/2017\", \"word_count\": \"13\", \"char_count\": \"82\", \"text\": \"Affirmed in part, Reversed in part, and Remanded\"}"

iowa/12337464.json

@@ -0,0 +1 @@
+"{\"id\": \"12337464\", \"name\": \"Property Seized for Forfeiture from Flora, Matter of\", \"name_abbreviation\": \"Matter of Property Seized for Forfeiture from Flora\", \"decision_date\": \"2017-07-19\", \"docket_number\": \"16-0865\", \"first_page\": \"205\", \"last_page\": \"205\", \"citations\": \"906 N.W.2d 205\", \"volume\": \"906\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:56:57.159029+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Property Seized for Forfeiture from Flora, Matter of\", \"head_matter\": \"Property Seized for Forfeiture from Flora, Matter of\\n16-0865\\n07/19/2017\", \"word_count\": \"11\", \"char_count\": \"81\", \"text\": \"Affirmed\"}"

iowa/12555035.json

@@ -0,0 +1 @@
+"{\"id\": \"12555035\", \"name\": \"STATE of Iowa, Plaintiff-Appellee, v. Emondre Montrel HENDERSON, Defendant-Appellant.\", \"name_abbreviation\": \"State v. Henderson\", \"decision_date\": \"2017-10-11\", \"docket_number\": \"No. 15-2221\", \"first_page\": \"228\", \"last_page\": \"228\", \"citations\": \"909 N.W.2d 228\", \"volume\": \"909\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-27T21:03:12.209792+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nEmondre Montrel HENDERSON, Defendant-Appellant.\", \"head_matter\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nEmondre Montrel HENDERSON, Defendant-Appellant.\\nNo. 15-2221\\nCourt of Appeals of Iowa.\\nFiled October 11, 2017\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"29\", \"char_count\": \"227\", \"text\": \"Sentence Vacated; Remanded for Resentencing.\"}"

iowa/12556192.json

@@ -0,0 +1 @@
+"{\"id\": \"12556192\", \"name\": \"STATE of Iowa, Plaintiff-Appellee, v. Brett Edward JONES, Defendant-Appellant.\", \"name_abbreviation\": \"State v. Jones\", \"decision_date\": \"2018-01-10\", \"docket_number\": \"No. 17-0006\", \"first_page\": \"855\", \"last_page\": \"855\", \"citations\": \"912 N.W.2d 855\", \"volume\": \"912\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-27T21:03:14.655346+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nBrett Edward JONES, Defendant-Appellant.\", \"head_matter\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nBrett Edward JONES, Defendant-Appellant.\\nNo. 17-0006\\nCourt of Appeals of Iowa.\\nFiled January 10, 2018\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"25\", \"char_count\": \"185\", \"text\": \"Affirmed.\"}"

iowa/12560978.json

@@ -0,0 +1 @@
+"{\"id\": \"12560978\", \"name\": \"In the MATTER OF the GUARDIANSHIP OF D.B., L.B., and A.B., James A. Kernes and Cheryl Ann Kirk, Petitioners-Appellees, v. Edward Paul Bunch, Jr., Respondent-Appellant.\", \"name_abbreviation\": \"Guardianship D.B. v. Bunch\", \"decision_date\": \"2018-09-12\", \"docket_number\": \"No. 17-1559\", \"first_page\": \"535\", \"last_page\": \"535\", \"citations\": \"924 N.W.2d 535\", \"volume\": \"924\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the MATTER OF the GUARDIANSHIP OF D.B., L.B., and A.B.,\", \"head_matter\": \"In the MATTER OF the GUARDIANSHIP OF D.B., L.B., and A.B.,\\nJames A. Kernes and Cheryl Ann Kirk, Petitioners-Appellees,\\nv.\\nEdward Paul Bunch, Jr., Respondent-Appellant.\\nNo. 17-1559\\nCourt of Appeals of Iowa.\\nFiled September 12, 2018\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"41\", \"char_count\": \"276\", \"text\": \"Affirmed.\"}"

iowa/12562555.json

@@ -0,0 +1 @@
+"{\"id\": \"12562555\", \"name\": \"In the INTEREST OF L.I., G.I., and A.I., Minor Children, J.I., Father, Appellant.\", \"name_abbreviation\": \"In re L.I.\", \"decision_date\": \"2019-01-23\", \"docket_number\": \"No. 18-1842\", \"first_page\": \"679\", \"last_page\": \"679\", \"citations\": \"927 N.W.2d 679\", \"volume\": \"927\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the INTEREST OF L.I., G.I., and A.I., Minor Children,\", \"head_matter\": \"In the INTEREST OF L.I., G.I., and A.I., Minor Children,\\nJ.I., Father, Appellant.\\nNo. 18-1842\\nCourt of Appeals of Iowa.\\nFiled January 23, 2019\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"46\", \"char_count\": \"292\", \"text\": \"See Iowa R. App. P. 6.904\\nA father appeals the permanency order regarding his three children. AFFIRMED.\\nAFFIRMED.\"}"

iowa/12562929.json

@@ -0,0 +1 @@
+"{\"id\": \"12562929\", \"name\": \"IN RE the MARRIAGE OF Robert Allen STERNER, Jr. and Mary Anne Dunham Sterner Upon the Petition of Robert Allen Sterner, Jr., Petitioner-Appellee, And Concerning Mary Anne Dunham Sterner, Respondent-Appellant.\", \"name_abbreviation\": \"In re Marriage of Sterner\", \"decision_date\": \"2019-03-06\", \"docket_number\": \"No. 18-0409\", \"first_page\": \"156\", \"last_page\": \"156\", \"citations\": \"928 N.W.2d 156\", \"volume\": \"928\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"IN RE the MARRIAGE OF Robert Allen STERNER, Jr. and Mary Anne Dunham Sterner\", \"head_matter\": \"IN RE the MARRIAGE OF Robert Allen STERNER, Jr. and Mary Anne Dunham Sterner\\nUpon the Petition of Robert Allen Sterner, Jr., Petitioner-Appellee,\\nAnd Concerning Mary Anne Dunham Sterner, Respondent-Appellant.\\nNo. 18-0409\\nCourt of Appeals of Iowa.\\nFiled March 6, 2019\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"54\", \"char_count\": \"350\", \"text\": \"See Iowa R. App. P. 6.904\\nAFFIRMED AS MODIFIED.\"}"

iowa/2048583.json

@@ -0,0 +1 @@
+"{\"id\": \"2048583\", \"name\": \"Wamsley v. Lincicum et ux.\", \"name_abbreviation\": \"Wamsley v. Lincicum\", \"decision_date\": \"1886-04-21\", \"docket_number\": \"\", \"first_page\": \"556\", \"last_page\": \"559\", \"citations\": \"68 Iowa 556\", \"volume\": \"68\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:27:26.630352+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wamsley v. Lincicum et ux.\", \"head_matter\": \"Wamsley v. Lincicum et ux.\\n1. Trust: gift op land: mother to daughter: support op mother: DEED DESTROYED: DECREE QUIETING TITLE AS PER TERMS OF GIFT. Plaintiff gave to her daughter the land in question in consideration of one-third of her support during life. The mother executed a deed accordingly, but never delivered it, The daughter took possession and made improvements, and afterwards the mother destroyed the deed and sought to recover the land. The daughter set up the facts in a cross-petition, and asked to have the title quieted in her. Held that the daughter is entitled to the relief asked by her, but that the decree should provide for one-third of the mother\\u2019s support by the daughter, the annual amount of which should be determined by the court and made a lien on the land.\\nAppeal from Page Circuit Court.\\nWednesday, April 21.\\nAction to recover possession of land. The defendants pleaded an equitable defense, and by cross-bill claimed relief. There was a decree granting them the relief prayed for. Plaintiff appeals.\\nClarli do Parslow and F. B. Moore, for appellant.\\nW. W. Morsman, for appellees.\", \"word_count\": \"959\", \"char_count\": \"5641\", \"text\": \"Beck, J.\\nI. The .plaintiff brings this action to recover possession of forty-four acres of land. The defendants, Andrews and Marthena Lincieum, who are husband and wife, deny the allegations of the petition, and set up an equitable defense by way of a cross-bill, alleging that plaintiff, for the purpose of making provision for Marthena, her daughter, gave to her the land in controversy, and executed to her a deed of warranty therefor; that defendants took possession of the land under this gift in 1878, and have since continued therein, and have made valuable improvements upon it; and that the deed is now in the possession of plaintiff. The cause was tried as an action in equity, and a decree was rendered quieting the title in defendant Marthena.\\nII. The evidence, in our opinion, authorizes the conclusion that plaintiff did give and convey the land in controversy to her daughter, but she retained possession of the deed, and never caused it to be recorded. The defendants, relying upon this conveyance, entered into the possession of the laud under the gift, made improvements thereon, paid the taxes, and occupied and cultivated it as their own. All of this was with the consent and under the directions of the plaintiff. She recognized their rights by various acts. One only need be mentioned. A railroad was located over the land. The damages therefor were settled with and paid to defendants at plaintiff's own suggestion, who at the time declared that she had given and conveyed the laud to her daughter. She joined in the deed to the railroad company for the reason that her deed to the daughter had not been recorded. Prior to the commencement of this suit, a disagreement having occurred between plaintiff and defendant, she destroyed the deed.\\nIII. In view of the facts, \\u2014 the gift, conveyance, possession of the land and improvements made by defendant, \\u2014 we are of the opinion that Marthena has established her right to the land. But it quite as clearly appears that such rights are subject to an obligation to contribute one-third of the cost of plaintiff's support during her life-time. The evidence clearly shows that plaintiff owned a farm of a little more than a hundred and twenty acres, upon which she lived with her family, \\u2014two sons and her daughter, Marthena. Upon this farm the plaintiff depended for her support. She deeded separate and nearly equal portions of the land to each of her children, with the understanding that she was to live with them, and receive her support from them. Upon the marriage of her sons, each took possession of his share of the land, and upon the daughter's marriage she and her husband entered upon a separate occupancy of her part. That the defendants were to contribute to the support of plaintiff cannot be questioned; they admit the fact in their own testimony.\\nNow, while the court will enforce the conveyance to the daughter, it will only do it upon the terms of the gift. Defendants cannot claim equity without doing equity. They cannot enforce the gift, excepjt upon compdying with its terms, and while equity has jurisdiction of the case it will see that plaintiff's rights are protected and preserved. It will not cause defendants' title to the land to be quieted, and permit plaintiff to depend upon the unenforced obligation resting upon defendants to contribute to her support. It will p>rovide that she shall be made secure in the receipt of one-third of her support from defendants. To secure the rights of the parties, the cause will be remanded for a decree in the court below, quieting the title of the land in defendants and securing the rights of plaintiff. It shall be declared in the decree that defendants shall hold the land subject to a lien for one-third of the support of pdaintiff during her natural life, and the court below shall, upon supplemental pdeadings to be filed by plaintiff, determine and render a judgment for the amount defendants shall pay annually, or at other shorter pjeriods, for one-third of the support of plaintiff. Such judgment shall be a special lien on the land; and the decree establishing the amount and time of such payments shall provide that upon default of defendants, or either of them, to make payments, at the times prescribed, special execution shall issue, and the lands, or such part thereof as may be necessary, shall be sold to satisfy such judgment, and general execution shall issue, in case of any balance remaining unpaid, as in case of forelosure of a mortgage.\\nModified and Affirmed.\"}"

iowa/2051356.json

@@ -0,0 +1 @@
+"{\"id\": \"2051356\", \"name\": \"The Colfax Hotel Co. v. Lyon\", \"name_abbreviation\": \"Colfax Hotel Co. v. Lyon\", \"decision_date\": \"1886-10-25\", \"docket_number\": \"\", \"first_page\": \"683\", \"last_page\": \"689\", \"citations\": \"69 Iowa 683\", \"volume\": \"69\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:16:18.007032+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Colfax Hotel Co. v. Lyon.\", \"head_matter\": \"The Colfax Hotel Co. v. Lyon.\\n1. Practice on Appeal: rulings adverse to appellant alone considered. In an ordinary action, this court can review only such rulings of the trial court as were adverse to the appellant. Accordingly, where defendant, on three stated grounds, moved the court to direct a verdict for him, which motion the court overruled as to the first and third grounds, but sustained as to the second, and plaintiff alone appealed, held that, as the ruling of the court as to the sufficiency of the first and third grounds could not be reviewed, the j udgment must be reversed if the ruling as to the sufficiency of the second ground was erroneous.\\n2. Corporations: parol agreement to take stock: validity. A parol agreement made with the directors of a corporation to take certain shares of the stock thereof will be enforced, when there is no provision in the charter of the corporation or in the laws of the state requiring such contracts to be in writing.\\n3.--:-: action on: evidence: directors\\u2019 minutes. In an action upon an agreement to take corporation stock, alleged to havo been made at .a meeting of the directors, the minutes of the meeting were admissible to prove the acceptance of the offer by the corporation, but not to prove that the offer was made by the other party; and it is immaterial that the direction to make the recital a part of the record was given at a subsequent meeting.\\nAppeal from, Polla Circuit Court.\\nMonday, October 25.\\nPlaintiff is a corporation, and it brought this action on an alleged contract by defendant to take and pay for fifteen shares of its capital stock. The verdict and judgment were for defendant. Plaintiff appeals.\\nCummins db Wricjht, for appellant.\\nPhillips c& Day, for appellee.\", \"word_count\": \"2272\", \"char_count\": \"12981\", \"text\": \"Need, J.\\nThe plaintiff was incorporated on the eleventh day of June, 1884. Its articles of incorporation contain the following provision: \\\"The capital stock of the organization hereby created is fixed at sixteen thousand dollars, divided into shares of one hundred dollars each, all of which has been subscribed for, and are payable at the- call of the directors of said company, and as provided in said subscription.\\\" There were six incorporators, and, as we understand, those six persons had subscribed for all of the stock, but defendant was not of the number. It is alleged in the petition that oil the twenty-third of July, 1884, defendant subscribed for and agreed to pay for fifteen shares of said capital stock, and that such subscription and agreement' were made with the officers, directors and stockholders of the corporation, and at a meet ing of the corporation. Plaintiff proved on the trial that there was a meeting of the corporation on the twenty-third of Jnly, and that two of the incorporators, at that meeting, desired to cancel their subscriptions to the stock, and that the other incorporators present consented that this might be done. Defendant and four others, who were not then members of the corporation, were present at the time, and, after it had been agreed that said cancellation should be made, there was some discussion as to the disposition which should be made of the stock covered by said subscriptions, and it was agreed that it should be taken by the five persons present who were not members of the corporation. Defendant stated that he would take fifteen shares, and directed the secretary to set him down for that amount. The secretary wrote down the names of each subscriber, with the amount of stock he agreed to take, on a slip of paper, but no formal subscription was signed by any of the parties. After this he was proceeding to fill out the stock certificates for the parties, but before they were completed defendant left the meeting, stating that he desired to go to Des Moines on a train that was then approaching, that being h^s place of residence, and the meeting being at Colfax. But before leaving he directed the secretary to take the certificates to Des Moines on the next day, and promised that he would then pay for them. On the next day the secretary went to Des Moines, but, being unable to see defendant, he inclosed the certificates in an envelope, and left them with another person who, by his direction, delivered them to defendant on the same day. On the next day he telegraphed defendant calling his attention to the matter, and in answer to the dispatch defendant wrote him stating that, owing to sickness in his family, he had not been able to give the matter attention; and that, as the other stockholders wanted the stock, he might let them have it, or, if this could not be done, he would have to wait until he could get round, and promising, if the stock was not otherwise disposed of, to give the matter attention the next week. lie also returned the certificates to the secretary inclosed with his letter. Rut he subsequently refused to receive the stock or pay for it.\\nWhen plaintiff's evidence was closed, counsel for defendant moved the court toodirect the jury to return a verdict for him on substantially the following grounds: (1) That the allegation in the petition that defendant had subscribed for and agreed to pay for the stock is not supported by evidence of a parol agreement by him to take and pay for the same; (2) that the parol agreement to take and pay for the stock is invalid, and cannot be enforced; (3) that the articles of incorporation show that all the stock had been taken before the alleged agreement with defendant, and there was no competent evidence that any portion of it had been surrendered,- or that the corporation could then enter into a valid agreement for the transfer of any portion of its stock to him. The court sustained the motion on the second ground, and overruled it as to the other grounds.\\nI. Counsel for appellee contend that the only question which arises under the appeal is as to the correctness of the ruling of the circuit court in directing the verdiet *\\u00b0r ^ie defendant, and that the judgment ought not to be disturbed if the motion should pave peen sustained on any of the grounds alleged, regardless of whether the ruling was based upon those grounds or not. Rut we think this position cannot be maintained. The cause is an ordinary action, and we can review only such rulings of the trial court as were adverse to the appellant, and are properly assigned as errors. ' If, instead of moving the court to direct the verdict on the grounds alleged, counsel had asked the court to give the three propositions involved in their motion by way of instruction to the jury, and the court had given the one, and refused to. give the others, they would hardly contend that the appeal brought up any questions for our consideration except such as related to the correctness of the instruction given. But, in effect, that is what was done. With either of the propositions given to the jury by way of instruction, a verdict for the defendant would, under the proof, have as certainly resulted as from a positive direction by the court. In effect, the court told the jury that the second proposition was the law of the ease, and, as there was no controversy as to the facts, the verdict must be for defendant. The case, then, is in precisely the condition it would have been in if the proposition, instead of being incorporated in the motion, had been given as an instruction, and the jury, without an express direction from the court, had returned a verdict for defendant; and the only question we can consider on this branch of the case is as to the correctness of that proposition.\\nII. The agreement of defendant to take and pay for the stock was unconditional. He, in effect, directed the secretary to subscribe in his name for the amount of stock named, but no entry was in fact made in the stock-book or records of the corporation until after he had notified the officers of the company that he would not take or pay for the stock, so that the agreement of the parties rests entirely in parol; and the question is whether such agreement is valid and enforceable. It is said by Thompson, in his work on Liability of Stockholders, (\\u00a7 108,) that parol subscriptions for stock are not valid, and that contracts of that character can be proven only by written evidence. The following cases are cited in support of the text: Pittsburg & S. R. Co. v. Gazzam, 32 Pa. St., 340; Vreeland v. New Jersey Stove Co., 29 N. J. Eq., 188; Thames Tunnel Co. v. Sheldon, 6 Barn. & C., 341; Brouwer v. Appleby, 1 Sandf., 170. And Fanning v. Insurance Co., 37 Ohio St., 339, is cited by counsel as sustaining the same doctrine.\\nIt is to be observed, however, that the holding in each o\\u00ed these cases is based very largely upon provisions of the charters of the corporations, or of some general statute governing the question. It is not claimed, however, that there\\n. is any statute of this state which requires contracts of that character to be in writing, and we think there is no provision of plaintiff's articles of incorporation which has that effect. The provision quoted above, which is the only one at all relating to the subject, simply recites that the stock has all been subscribed, and is payable at the call of the directors, as provided in the subscription. It clearly does not create any limitation on the power of the corporation to contract for the disposal of its capital stock. - When the articles of incorporation were adopted, it was not contemplated that the company would ever have occasion to contract for the disposal of any portion of its stock. The stock had then all been subscribed for, and there was apparently no necessity for making any provision on the subject, and accordingly none was made. The question presented by the case, then, is whether, in the absence of any provisions as to the manner in which such contracts shall be entered into either in the charter or the general statutes of the state, a corporation may contract by parol for the disposal of its capital stock. In our opinion, it may. There is nothing in the nature of the contract which requires it to be in writing. For the purpose of effecting the object of its organization, the powers of the corporation, unless restricted by statute, are as broad as those of a natural person. Thompson v. Lambert, 44 Iowa, 239.\\nThere can be no doubt that, under our general statute governing the organization of such bodies, they may, by express provision of their articles of incorporation, clothe themselves with power to contract in that manner, or they might provide that they should be bound only when the contract was entered into in writing. But when no provision or limitation on the subject is made, and the object is one concerning which they have power to contract, it follows necessarily, we think, that they may contract in either manner, as may be determined by the incorporators or directors. The ability to do this is necessarily incident to the powers with which they are vested under the law. We think, therefore, that the cir cuit court erred in the ruling that the contract in question was void.\\nIII. On the trial the plaintiff offered in evidence the record of the proceedings had at the meeting at which the contract was entered into. But, on defendant's objection, it was excluded. This record shows that certain of the officers who had previously been elected tendered their resignations, and that these were accepted; also the election of other of the stockholders to those offices. It also contains the following recital: \\\"The stock was then all subscribed for, and the secretary instructed to issue accordingly. This subscription was made by the parties, or by their written order, and was taken and written down by the secretary by their direction and order, as follows.\\\" And this is followed by a list of the subscribers, with a statement of the amount of stock taken by each. This recital was not entered on the record at the time it was originally written by the secretary; but at a subsequent meeting of the corporation he was directed to enter it in the record of the meeting in question. A number of meetings, however, intervened between that one and the one at which the direction was made. This record was probably not competent evidence of an agreement by defendant to become a shareholder. He denied, in his answer, that he had made the agreement alleged, and he had no part in making the record. He could not, therefore, be bound by its recitals as to his agreement. But the burden was on plaintiff to prove its acceptance of whatever proposition or offer he had made at the meeting to take the stock; and the record was competent evidence to show acceptance, and it should have been admitted for that purpose. It is immaterial, we think, that the direction to make the recital a part of the record was made at a subsequent meeting. Plaintiff had the right, at any time, to correct its record in accordance with the facts. The judgment will be reversed, and the cause remanded fora new trial.\\nReversed.\"}"

iowa/2063606.json

@@ -0,0 +1 @@
+"{\"id\": \"2063606\", \"name\": \"Thomas v. The Farley Manufacturing Company et al.\", \"name_abbreviation\": \"Thomas v. Farley Manufacturing Co.\", \"decision_date\": \"1888-10-18\", \"docket_number\": \"\", \"first_page\": \"735\", \"last_page\": \"740\", \"citations\": \"76 Iowa 735\", \"volume\": \"76\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:23:13.864094+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas v. The Farley Manufacturing Company et al.\", \"head_matter\": \"Thomas v. The Farley Manufacturing Company et al.\\n1. Pleading: demurrer : \\u201c not entitled to relief demanded : \\u201d when not well taken. A .demurrer based on tbe ground that \\u201c the facts stated in the petition do not entitle plaintiff to the relief demanded,\\u201d is properly overruled where the prayer is for general relief, and the petition shows that plaintiff is entitled to some relief. Accordingly, where the petition showed that defendant had levied an attachment upon property on which she held a valid and duly recorded mortgage, and that she had duly notified him of her lien, and given him a statement of the nature and amount of the debt secured by the mortgage, but that he refused to release the property, though neither he nor the attachment plaintiff had paid or tendered her the amount of the debt nor deposited it with the clerk, and she thereupon prayed for an injunction and for general relief, held that, if she was notentitled to an injunction, she was entitled to judgment settling and determining her right of possession, and that a demurrer on the ground above stated was properly overruled. Though the action for such relief alone should have been brought at law, an error as to the kind of proceedings is no ground for demurrer.\\n2. Chattel Mortgage: levy on mortgaged property : injunction to restrain. A mortgagee of chattels is not entitled to an injunction to restrain an officer from levying on the mortgaged chattels until such officer or the execution or attachment creditor shall first pay or deposit the amount of the mortgage debt; because (1) the mortgagee has several remedies at law, which will be presumed to be adequate until facts are pleaded showing the contrary, and (2) the allowing of an injunction in such a case would deprive the attaching or execution creditor of the rights conferred upon him by chapter 117, Laws of 1886, enabling such creditors to reach the mortgagor\\u2019s interest in mortgaged chattels.\\nAppeal from Cerro Cor do District Court. \\u2014 Hon. John B. Cleland, Judge.\\nFiled, October 18, 1888.\\nDefendant instituted a suit on a money demand against plaintiff, in which they sued out an attachment, on which, the sheriff seized a stock of groceries. Plaintiff then brought this action, alleging in her petition that she holds a mortgage on the attached property, which was duly recorded before the levy; and thatimmdiately after the seizure she gave the sheriff notice, in writing, of her claim, and demanded the release of .the property, also that she gave him a statement of the nature and amount of the debt secured by the mortgage, but that he had refused to release the property ; and that neither he nor the plaintiff in the action had paid or tendered to her the amount of the debt, nor had they deposited the amount with the clerk. She prayed that a temporary writ of injunction issue restraining defendants from holding or taking the property under the attachment, or in any manner interfering with it, without first tendering or depositing the amount of her debt; and that upon the final hearing suchinjunction.be made perpetual; and for general relief. The temporary writ having been allowed and served, defendants appeared, and demurred to the petition. They also filed a motion to vacate the injunction. The district court overruled the demurrer ap.d motion, and, defendants electing to stand on that ruling, judgment was entered for plaintiff, making the injunction perpetual. Defendants appeal.\\nD. W. Hum and \\u00fctt Bros., for appellants.\\nRichard Wilber, for appellee.\", \"word_count\": \"1785\", \"char_count\": \"10478\", \"text\": \"Reed, J.\\n\\u2014 I. The ground of the demurrer was that \\\" the facts stated in the petition do not entitle plaintiff to the relief demanded.\\\" ,As stated above, the prayer of the petition was for an injunction restraining defendants from seizing, taking or holding said mortgaged property under and by virtue of said writ of attachment, or in any manner interfering with the same, without first paying or tendering or depositing the amount of said mortgage debt, and for general relief. The question which has been argued by counsel on both sides is whether, on the allegations of the petition, plaintiff was entitled to the particular relief demanded, viz., the-injunction. Conceding, for the present, that she did not show herself entitled to that relief, a question we will have occasion to consider hereafter, we. think that under the prayer for general relief she was . entitled to have determined any question of right which arises on the allegations of fact in the petition. The question raised by the demurrer is not merely whether she was entitled to that particular relief, but whether she was entitled to any relief whatever. Under a general prayer the. party may be awarded any remedy afforded by the law for the particular injury or wrong complained of. The petition alleges a state of facts which clearly entitles plaintiff to the possession of the property. By the conditions of the mortgage, she had the right, at any time she might deem it necessary for the protection of her rights, to take possession of the property. It* is alleged that the mortgage was given to secure a valid and existing debt, and that it was duly recorded before the levy. Under the general prayer the question as to her right of possession might have been settled and determined by the judgment. It makes no difference that questions as to the right of possession of personal property are within the jurisdiction of courts of law. An error of plaintiff as to the kind of proceedings adopted is not a ground of demurrer. Such error does not cause the abatement or dismissal of the action, but the remedy therefor is by motion to change to the proper proceeding. Code, sec. 2514. We are of the opinion, therefore, that the demurrer was properly overruled.\\nII. The grounds of the motion to vacate the injunction, in substance, are that plaintiff has an adequate remedy at law, and that the petition does not state facts upon which an miunction x d can be allowed. If the judgment had determined and settled the rights,of the parties with reference to the property, as might have been done under the general prayer of the petition, there would have been no necessity, perhaps, to consider the questions raised by the motion. For, with a judgment determining the validity and priority of plaintiff's mortgage, defendants would not have been prejudiced by the injunction. But the judgment does not do that. It simply perpetuates the injunction, which, as stated above, restrains defendants merely from interfering with the property unless they first pay or deposit the amount of the mortgage debt. Giving to the language of the petition the broadest meaning of which it is capable, it amounts to \\u2022 no more than an allegation that defendants have committed a trespass upon plaintiff's rights in the property; and nothing more than that has been claimed for it. Now, it is elementary that courts of equity will not interfere, by injunction, to prevent a mere trespass, unless the right invaded or the act threatened, is of such a character that such interference appears to be necessary for the prevention of an irreparable injury. If the party may be fully protected or indemnified by the ordinary processes' of the law, the courts will remit him to the remedy thus afforded. 1 High, Inj., sec. 697; Council Bluffs v. Stewart, 51 Iowa, 385.\\nOne whose personal property has been unlawfully, or wrongfully taken from his possession is afforded a variety of remedies by our law. He may sue for the recovery of the property, and in such action he may have judgment, at his election, either for its return or for its value. He may also sue the wrong-doer for the trespass. Or if the seizure, as in the present case, was made on a writ or process against another, he may, by intervening in the action, have his right summarily determined. Thus it appears that plaintiff has ample remedy at law for the wrong of which she complains ; and there is no showing in her petition that such remedy would not haye been '.adequate. There is no allegation that defendants are insolvent, and there is nothing either in the character of the property, or her right in it, to take the case out of the ordinary rule. True, she alleges generally that she will sustain irreparable injury unless defendants are. restrained from interfering with the property. That, however, is but the statement of a general conclnsion. It is not shown by any statement of facts that such result would follow.\\nBut there is another consideration which we think is equally conclusive of the question. Chapter 117, Laws Twenty-first General Assembly, prescribes a mode by which creditors of the mortgagor of personal property may reach his interest in the' property. They may pay of tender to the mortgagee, or deposit 'with the clerk, for his use, the amount of the debt secured by the mortgage ; and thereupon they may seize the property on execution or attachment, and apply the proceeds, in excess of the amount paid or deposited, in satisfaction of their debts. The judgment, in effect, compels defendants to pursue that course, or abstain from all further interference with the property. But the fourth section of the act provides that nothing contained in it shall in any way affect the right of any creditor to contest, for any reason, the validity of the mortgage. Under that provision, the creditor may contest the right of the mortgagee upon any ground that goes to its validity. But before he can do that (except, perhaps, by an action in chancery, to which, however, he is not bound to resort), he must acquire an apparent lien upon the property ; for until he has acquired such lien he would have no standing to dispute the mortgage. But he can acquire a lien only by levying on it. Now, if the mortgagee is entitled to the remedy afforded by an injunction after the levy, he is equally entitled to it before that; for he is not required to wait until the threatened injury has occurred before applying for the remedy. So that' by that means he could prevent the creditor from acquiring the interest, which will enable him to test by an ordinary action the validity of the mortgage. It is true perhaps, that he could allege its invalidity in the injunction proceeding. But he ought not, by resort to that means, to be compelled to try the question in a court of chancery rather than in court of law. We thing, therefore, that the court erred in overruling the motion, and the judgment will be\\nReversed.\"}"

iowa/2068558.json

@@ -0,0 +1 @@
+"{\"id\": \"2068558\", \"name\": \"Fitch et al. v. Reiser\", \"name_abbreviation\": \"Fitch v. Reiser\", \"decision_date\": \"1890-01-22\", \"docket_number\": \"\", \"first_page\": \"34\", \"last_page\": \"40\", \"citations\": \"79 Iowa 34\", \"volume\": \"79\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:06:41.640202+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fitch et al. v. Reiser.\", \"head_matter\": \"Fitch et al. v. Reiser.\\nDeed: undue influence : presumption. Where a man over eighty-years old, and of feeble mind, deeded, substantially, all of his property to his daughter, to whom alone he looked for advice, and whose control of him was absolute, and the deed was without consideration, held, in an action by the other heirs to set it aside, that it was incumbent upon the daughter, in order to sustain the deed, to show that it was made voluntarily, and without the exercise of any influence on her part, or in her behalf, to procure the same. (Compare Leighton v. Orr, 44 Iowa, 679; Spargur v. Hall, 62 Iowa, 498.)\\nAppeal from Chiclca-sato District Court. \\u2014 Hon. L. O. Hatch, Judge.\\nFiled, January 22, 1890.\\nThis is an action in equity by which the plaintiffs seek to set aside and annul a deed of certain real estate which was executed by James D. Fitch to the defendant, Martha M. Reiser. The plaintiffs and the defendant are the children of said Fitch. Upon a final hearing upon the merits the district court granted the prayer of the petition, and annulled the deed. Defendant appeals.\\nJ. H. Powers, for appellant.\\nJ. W. SandusTcy, for appellees.\", \"word_count\": \"2052\", \"char_count\": \"11448\", \"text\": \"Rothbook, C. J.\\nJames D. Fitch owned and for many years resided upon a farm of about one hundred acres in Chickasaw county. He was the father of the parties to this action. His wife died on the thirteenth day of September, 1886. On the twenty-first day of the same month he made the deed in question, by which he conveyed his farm to his daughter, the defendant in this action. He died on the twenty-sixth day of September, 1887, at the advanced age of nearly eighty-three years. He was a man of no education, as the term is commonly used. He was several years older than his wife, and the evidence shows that for many years prior to her death he consulted and advised with her about all of his business transactions, even to matters of the most trifling character. The loss of his wife was a great calamity to him. His children were all married, and at the time of his wife's death the daughter of the defendant, aged about thirteen, was the only member of the family. He and his wife had taken this child when she was quite young, and she remained with them as long as they lived. The defendant and her husband resided on one corner of the farm at the time of the death of the father and mother. It is claimed by the plaintiffs that the deed should be cancelled upon two grounds: (1) Because of the mental incapacity of James D. Fitch to make a valid conveyance; (2) because of undue influence exercised by the defendant over her father, which, in his weakened mental condition, induced him to make the deed.\\nThe cause is to be determined upon the preponderance of the evidence upon these questions, and there is a marked conflict in the testimony of the witnesses upon the issue as to the mental capacity of the deceased at the time he executed the deed. One thing, however, is abundantly established, and that is that, by reason of the dependence of the deceased upon the advice and direction of his wife, her death was a greater bereavement to him than it ptherwise would have been. The story of his lamentations over her death, as detailed by the witnesses, is a most pathetic delineation of the crushing and overwhelming sorrow of an aged man at the loss of the partner of his joys and sorrows through a long and happy married life. It was perfectly natural that he should seek counsel and advice of others, and the evidence conclusively establishes the fact that, after the death of his wife, he put himself under the care and control of his daughter, the defendant. Her power over him appears to have been as absolute as that of the mother during her life; and this dependence upon the defendant and her control over him were manifest at once upon the death of the mother.\\nTo show the extent of this influence, we will here quote quite extensively from the testimony of Samuel ' D. Kenyon, cashier of the First National Bank of New Hampton, as to a business transaction he had with the deceased on the twenty-sixth day of November, 1886. The testimony of the witness is as follows: \\\" Mr. Fitch held two interest-bearing certificates of deposit. One of them was for one hundred and seventy dollars; . the other, for one hundred and eighty dollars. Both were due. He presented them for payment, but finally took payment in a new certificate of deposit ($300), running to Emma Reiser, and the balance, of fifty dollars and interest, he took in cash. Mrs. Reiser took a very important part in the transaction. She did nearly all of the talking for Mr. Fitch, and directed the manner in which the transaction should be closed. When the parties came into the bank Mr. Fitch did not have personal possession of the certificates of deposit, but Miss Emma Reiser, who was one of the parties, had them in a little hand-bag. Mr. Fitch stepped to the counter, and said he came after his money. , Mrs. Reiser then said: 'No, pa; you do not want the money; you want it just as we talked.' She then turned to her daughter, Emma Reiser, and received from her the two certificates of deposit, and told me that her father desired to put three hundred dollars of that money in the name of Emma Reiser, his granddaughter. The balance they wanted in cash. After some talk between Mrs. Reiser and Mr. Fitch, he said that was right. The certificate and nearly all the money she gave to her daughter, who put it in her hand-bag. She gave Mr. Fitch only a small portion of the money. The money was laid on the counter in front of Mr. Fitch, and Mrs. Reiser took possession of it. Mr. Fitch had no opportunity to count over the money, as Mrs. Reiser at once took possession of it. I think I can describe Mrs. Reiser's conduct. Mrs.\\\"Reiser was very careful that her father should not do much talking. Nearly always when he would commence to say anything she would interrupt him,, and herself would make a declaration of what he wanted to say, generally, concluding with the remark: ' N ow, that is right, ain't it, pa?' or, 'you know that's right;' or something similar. The conversation between Mrs. Reiser and myself was quite lengthy, and embraced other matters than those I have mentioned, but all pertaining to her father and his business. She never permitted Mr. Fitch to offer any suggestions or direction as to the business, dr how it should be concluded. She herself assumed the sole direction of the whole matter. I was impressed with her peculiar manner towards her father in this business transaction. During late years I have transacted business with Mr. Fitch and his wife. At such times Mrs. Fitch took an active part in such business transactions. She always controlled and directed the transactions. I think I never had any business with Mr. Pitch alone. His wife would always come with him, and look after the business. There were times when he would come into the bank alone with a certificate of deposit for renewal or payment, but would-never close the transaction alone, but would wait for his wife to come in and see to it. At the time Mr. Fitch was in the bank with Mrs. Beiser he was controlled and influenced by her absolutely; that is, so far as the business transaction involved at the time, which she absolutely directed and decided, without permitting him to express his opinion on the matter at all. He followed her direction, and acceded to her request, and complied with her orders and commands, regarding this whole business transaction in this way. He assented to them in this way. She would always close her statement with some appeal to him, such as : 'Now, you know what you want, pa;' or, 'that is right, pa, ain't it?' or words similar in meaning. Mrs. Beiser first mentioned or suggested that three hundred dollars then due Mr. Pitch should be deposited in the name of Mrs. Beiser's daughter Emma. I think it was in response to a question to Mr. Pitch as to what disposition should be made of the certificate. He made no reply to the question, as she did not permit him to, as she answered for him. He made no direction whatever that the certificate should be issued to Emma Beiser, but Mrs. Beiser gave the only directions that were given, but always concluding with some statement to her father, as, 'Now, that is right, ain't it, pa?' or words to that effect. He had not then, nor has he since, had any money in the bank. The Emma Beiser, to whom the three-hundred-dollar certificate of deposit was issued, .was the daughter of the defendant, who lived with Mr. Pitch.\\\"\\nWe have set out this evidence for the purpose of showing the absolute control which the defendant had of her father. We do not wish to be understood as condemning the defendant for acting as an aid and adviser to her father; but a contract or conveyance made by one to a person sustaining such relations of trust and confidence is in equity regarded in a different light from a conveyance between persons where no such trust and confidence exist.\\nThere is much controversy between counsel as to the effect of the evidence upon the mental condition of Mr. Fitch at the time the conveyance was made. The witnesses for the defendant testify that his mind was sound, and they give instances of business transactions made by him without assistance, in which he acted intelligently. On the other hand, there are a number of witnesses in behalf of the plaintiffs who testify to many acts which indicate, not only mental weakness caused by extreme old age, but tend to show a lack of capacity to transact any business. One witness, who does not appear to be related to the parties, and who has no interest in the controversy, testified that he farmed the place for four years, from 1881 to 1884, inclusive; that he lived on the place during those years, and passed through the door-yard of Fitch's house almost daily, and was intimately acquainted with him. He met him in October, 1886, and Fitch did not know him. This witness says: \\\" The deceased walked around the house [the home of witness] twice, and finally said: 'I can't find the way out.' He could not find the road he came in on. I went with him to where his son was putting up hay. The path on which he came was easy to find. It came straight into the door into which he came. He did not act as he did when I was on the place. His mind seemed to be affected. He repeated a story to me about his dog having killed sheep, and repeated it three times within one hour.\\\"\\nWe are not prepared to say that the evidence in the case shows an absolute want of mental capacity to make a testamentary disposition of property. But in consideration of the extreme mental weakness of the deceased at the time the deed was executed, and as the property in controversy embraced substantially all of his estate, and as the deed was without consideration, and in view of the relations of trust and confidence between the parties to the conveyance, we think the learned district judge was right in entering a decree annulling the deed. The control of the defendant over the deceased appears to have been absolute. Under such circumstances it was incumbent on the defendant to show that the conveyance was made voluntarily, and without the exercise of any influence on her part or in her behalf to procure the same. See Leighton v. Orr, 44 Iowa, 679; Spargur v. Hall, 62 Iowa, 498, and Kerr, Fraud & M. 150-152. The decree of the district court will be Affirmed.\"}"

iowa/2082659.json

@@ -0,0 +1 @@
+"{\"id\": \"2082659\", \"name\": \"State of Iowa, v. William Kirkman, Appellant\", \"name_abbreviation\": \"State v. Kirkman\", \"decision_date\": \"1894-05-19\", \"docket_number\": \"\", \"first_page\": \"719\", \"last_page\": \"719\", \"citations\": \"91 Iowa 719\", \"volume\": \"91\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:35:29.500845+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Iowa, v. William Kirkman, Appellant.\", \"head_matter\": \"State of Iowa, v. William Kirkman, Appellant.\\nInstruction given need not be repeated : sentence not excessive.\\nAppeal from Mahaska District Court. \\u2014 Hon. A. R. Dewet, Judge.\\nSaturday, May 19, 1894.\\nThe defendant was indicted, tried, and convicted of an assault with intent to inflict a great bodily injury, and he appeals.\\nAffirmed.\\nR. R. Sheriff for appellant.\\nJohn Y. Stone, attorney general, and Byron W.Preston, county attorney, for the state.\", \"word_count\": \"355\", \"char_count\": \"2090\", \"text\": \"Rothrock, J.\\nI. The evidence shows that the defendant inflicted a great bodily injury upon one Barton Long. The main contention of appellant's counsel appears to be that the evidence shows that the injury upon Long was inflicted while the defendant was lawfully acting in self-defense. The evidence, as set out in appellant's abstract, leaves room for doubt upon that question; but an additional abstract of evidence, filed by the state, shows that the defendant entered a dwelling house with the avowed purpose of \\\"cleaning out the ranch,\\\" as he -expressed it, and pulled off his coat, and undertook to carry out his intention. A number \\u2022of women were present, one of whom swooned and fell on the floor, and a fight ensued between the defendant and Brown, in which the latter was severely injured. It is true that defendant claimed in his testimony as a witness that he acted in self-defense, and probably there was sufficient conflict in the evidence to authorize an instruction upon that branch ot the law. Such an instruction was asked in defendant's behalf, and it was refused. There was no error in this ruling, because the court, on its own motion, correctly instructed the jury on that question.\\nII. The judgment of the court was that the defendant be imprisoned in the county jail for one year. It is suggested in argument that the term of imprisonment should be reduced. We are not disposed to interfere with the judgment. There is evidence in the record to the effect that the defendant claims to be \\\"a fighter,\\\" and that \\\"he had a good many fights in a year,\\\" \\u2014 as many as fifteen. The judgment of the district court is AFFIRMED,\"}"

iowa/2086433.json

@@ -0,0 +1 @@
+"{\"id\": \"2086433\", \"name\": \"Charles D. Brown & Company v. Lucas County, Appellant, and two other cases\", \"name_abbreviation\": \"Charles D. Brown & Co. v. Lucas County\", \"decision_date\": \"1895-04-03\", \"docket_number\": \"\", \"first_page\": \"70\", \"last_page\": \"74\", \"citations\": \"94 Iowa 70\", \"volume\": \"94\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:52:30.313833+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles D. Brown & Company v. Lucas County, Appellant, and two other cases.\", \"head_matter\": \"Charles D. Brown & Company v. Lucas County, Appellant, and two other cases.\\nConstruction: statute. Code, 3832, provide\\u00bb that for certain public printing not more shall be paid than \\u201cone dollar per square of ten lines of brevier type or its equivalent.\\\" Held, this simply means that a piece of printing worth as much as a square of ten lines brevier is the equivalent of such square. It does not mean that this is the rate for filling the space of ten line\\u00bb brevier with any kind of type. Followed in Brown v. Lucas County and Campbell v. L\\u00faeas County.\\nAppeal from Lucas District Court.-^-Hon. W. D. Tisdale, Judge.\\nWednesday, April 3, 1895.\\nThe plaintiff firm is the publisher of the Chariton Herald, one of the official papers of Lucas county for the publication of its proceedings. The proceedings of the county were published in three instead of two papers, by agreement among the respective publishers, the compensation to the three papers to be the same as is allowed by law to two papers, which would give to each twenty-two and twominths cents per square, instead of thirty-three and one-third cents per square, where the publication is in two papers. The plaintiff firm presented a claim to the board of supervisors of the defendant county for ninety-eight dollars and seventy-seven cents, with interest, which the board refused, and this action is to recover the amount. The case on appeal presents only a question as to the construction of the statute fixing the compensation for such publications. In the district court there was a judgment for plaintiffs, and the defendant appealed\\u00bb\\u2014\\nAffirmed.\\nStuart & Bartholomeiv for appellant.\\nJ. C. Mitchell for appellees.\", \"word_count\": \"1381\", \"char_count\": \"8092\", \"text\": \"Granger, J.\\nAs to legal advertisements, the law provides (Code, section 3882): \\\"In all cases where publication of legal notices of any kind are required or allowed by law, the person or officer desiring such publication shall not be required to pay more than one dollar per square of ten lines of brevier type or its equivalent, for the first insertion, and fifty cents per square for each subsequent insertion.\\\" Section 307 is the one making provision for the selection of newspapers in which are to be published the proceedings of the board of supervisors, and, after providing for such publication, it is said: \\\"And the cost of such publication shall not exceed one-third the rate allowed by the law for legal advertisements.\\\"\\n.The following facts were found by the,,district, cpurt: \\\"First. That, in strictly following copy furnished the plaintiffs by defendant, th'e plaintiffs, were required to set out the matter in tabulated form, with the exception of twenty-three and six-tenths-squares. Second. That the printing sued for by the plaintiffs, and claimed, to be tabulated matter, to-wit, four, hundred twenty and nine-tenths squares, was. tab-, ulated matter. Third.- That tke.plaintiffs published for the defendant twenty-three and six-tenths squares of straight matter, and four hundred twenty and nine-, tenths squares of tabulated matter.'.'\\nBy a stipulation, the following question is for our consideration: \\\"(One.) Was it,competent .for plaintiffs. to show in evidence that the word 'equivalent' and the, word1 'square,' as relating to printed matter, have a well' defined meaning among printers throughout the country, and to further show what space occupied by tabular printed matter is calculated .by printers throughout the country as the 'equivalent' of a 'square of ten lines of brevier'? If it was competent, then this case should be affirmed. If it was not compet\\u00e9nt, then the case should be reversed, unless it should be affirmed on account \\u00f3f res adjudicata.\\\"\\nThe claims of the parties are as follows: Appellant, in its brief, prints ten lines of brevier type, which the law defines as a \\\"square,\\\" and then says: \\\"This we insist is1 the square or unit of mea.surem.eni provided by the legislature, by which all publications of legal notices and proceedings of the board of supervisors must be measured, regardless of tbe kind or character of the type used or the cost of the work.\\\" The meaning of the language may be made clearer by the following statement in the argument: \\\"The square shall be the space occupied by ten lines of brevier type or its equivalent; that is the same space in any kind oh character of type.\\\" From these it appears that appellant's theory of the law is that the specified compensa-, tion is to be paid for the space occupied by ten lines in.. brevier type, regardless of the matter contained within it. If smaller type is used, so that more matter is printed in the same space, and the cost of printing is greater, still the compensation is just the same. If much large type is used, so that much less is printed, and the cost correspondingly less, yet the same corn pen-, station is to be paid. Appellees' claim is that, taking the square of ten lines in brevier type in \\\"straight mat-. ter\\\" as thle standard, if other type or form of printing is - desired, the equivalent of the square in brevier type'is., determined by the necessary cost to the publisher of] the different kinds of printing. As applied to-this'! case, from the facts found by the court, the plaintiff, was required to print a part of the work in a tabulated-., form, instead of as \\\"straight matter,\\\" as plain printing is called in the record. There is evidence to show that it costs three times as much to print matter in a tabulated form ais it does to print it straight We think the legislative intent was, not to fix a compensation for filling a certain space with printing, of whatever kind, but to fix a compensation for a particular space of a particular Mnd of printing, and make it the standard by which other kinds of printing could be measured and compensated. It is fair to presume that the compensation fixed was designed as just for a square of ten lines in brevier type of straight work. If so, it, would be a harsh construction to say that the board could deliver tabular work, \\u2022 requiring three times the,, cost to perform it, and then make compensation on the basis of straight work, because of the Avords, \\\"or its equivalent,\\\" as used in the law. There is, however, justice in the thought that the intent was to fix a compensation for a specified service,' and then allow for addi tional services on the same basis. It is urged that appellees' construction would involve confusion and uncertainty because of different prices for printing. It is said: \\\"The printer 'ixes the price absolutely. The board of supervisors do not know and cannot know the cost of printing their proceedings until the printer presents his bill.\\\" The conclusion is not warranted. With the square in brevier type as a basis, if a different form of work is desired, by which the same space will cost less, then less is to be paid for it If it cosits more for thie same space, then more is to be paid. The payment is to be made, at all times, on the basis of the fixed compensation for the specified space and form of printing. This leaves nothing to the printer, more than to the board of supervisors, for when it seeks different kinds of printing it should ascertain the additional cost. The same certainty exists as to both parties. If such printing is done without giving attention to know the additional cost, then, of course, in case of disagreement and litigation, the usual forms of judicial inquiry are to obtain, which are those employed in this case by using-witnesses presumed, from their skill and experience, to know the additional cost of the work done. It is the system \\u00f3f inquiry adopted, in such cases, throughout the jurisprudence of the country. In fact, we do not understand appellant to question this, unless its construction as to the term \\\"equivalent\\\" obtains.\\nWe have view.ed the questions stipulated in view of the arguments presented, and as thus understood we think the form of inquiry adopted was a correct one, which conclusion leads to an affirmance of the case.\\nThis conclusion renders it unimportant to consider the question as to a former adjudication. \\u2014 Affirmad.\"}"

iowa/2088716.json

@@ -0,0 +1 @@
+"{\"id\": \"2088716\", \"name\": \"M. M. Pendelton, v. H. C. Laub and Bernard Goto, Appellants\", \"name_abbreviation\": \"Pendelton v. Laub\", \"decision_date\": \"1895-10-15\", \"docket_number\": \"\", \"first_page\": \"722\", \"last_page\": \"724\", \"citations\": \"95 Iowa 722\", \"volume\": \"95\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:22:09.446940+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"M. M. Pendelton, v. H. C. Laub and Bernard Goto, Appellants.\", \"head_matter\": \"M. M. Pendelton, v. H. C. Laub and Bernard Goto, Appellants.\\nInjunction: practice. Pending a suit for specific performance, it was error to make an order restricting all interference with plaintiff\\u2019s possession, upon an unverified motion, without the hearing of evidence and without requiring bond.\\nAppeal from Monona District Court. \\u2014 Hon. A. Van Wagenen, Judge.\\nTuesday, October 15, 1895.\\nAction in equity for 'an. accounting and for specific performance. Decree for plaintiff. Defendants appeal.\\nReversed.\\nT. B. Lutz and Shaw & Kuehnle for appellants.\\nNo appearance for appellee.\", \"word_count\": \"761\", \"char_count\": \"4642\", \"text\": \"Kinne, J.\\nI. Plaintiff allege\\u00ae: That prior to 1890 hO was the owner of certain land wMch was incumbered. That he conveyed the same to the defendant Laub, under a partnership agreement, whereby the land was to be sold, and the profits, after discharging the incumbrances, to be divided equally between plaintiff and said Laub. That on October 12, 1891, a portion of the land having then been sold, a partial settlement was had between them, when it was found that there was one thousand six hundred dollars due the plaintiff from said profits^ It was then agreed that plaintiff should purchase from said partnership' a portion of said land which remained unsold' for the sum of four thousand dollars, and should have credited thereon said one thousand six hundred dollars. Ini pursuance of said agreement, the parties entered into their written contract. That Laub pretended to cancel the contract. Plaintiff avers a readiness to perfora all of its condition\\u00ae, and that defendant is insolvent. Afterward defendant C-otto intervened in said cause, and averred that he, on October 6, 1893, had purchased of said Laub the land in controversy; that said Laub was in possession when he made said purchase; and that intervener had no knowledge or information that plaintiff had any right to the land; that plaintiff is insolvent. Thereafter Laub answered plaintiff's petition, admitting the execution of the contract, denying insolvency, and averring that plaintiff had wholly failed to comply with the terms of said contract, but, in violation of it, had failed to pay the sums due thereon, and had wholly failed to pay the taxes, and that because of said defaults defendant had canceled said contract, and notified plaintiff thereof. March 15, 1894, plaintiff filed whiat is called a \\\"motion for a restraining order,\\\" in which it is averred that plaintiff is in possession of the land in controversy, and has been ever since the execution of the contract heretofore mentioned; that defendant, by his agents, and intervener, by his agent\\u00ae, have attempted to obtain possession of said land by force, and have threatened to take possession, and to* interfere with plaintiff's possession of the same, and prevent Man from leasing the same for the year 1894; that, if plaintiff is prevented from renting said premise\\u00ae', he will- .suffer great los\\u00ae. He asksi for an order restraining defendant and intervener from interfering- or molesting plaintiff or his* lessees in the possession *or occupancy of \\u00a9aid land until the determination of the .suit Defendant 'and intervener filed objections to* the granting of said order, on the ground that it was* a proceeding' unknown toi the law; that no sufficient showing was made therefor; that the application was not under oath-; that it does, not entitle-plaintiff to- any relief. They further averred that great and irreparable loss- would ensue to* them if such an order was- made; that plaintiff was* insolvent. Thereafter the court entered an order that plaintiff rent the land, for 1894, and) that he have the right to* use two hundred dollars of the rent for Ms support, and the balance to* be deposited with the clerk of the court, subject to the final judgment, and ordered that defendant\\u00ae be restrained* from interfering with plaintiff or hi\\u00ae renters \\\"in relation to acts* under this order.\\\" Defendant -and intervener excepted. This, order was made without a trial or hearing or the introduction of any evidence. It wa\\u00a9 in the nature of an injunction. It was* not -ashed for in the petition, nor did that contain any allegation\\u00a9 toucM-ng the possession of the land in controversy. The injunction, for such in effect it was-, wa\\u00a9 granted upon a showing made in a motion which; was not verified, and without requiring a bond to be filed. A\\u00ae plaintiff doesi not appear in this court, we \\u00a9hall reverse this case, because, as we have said, the order was in the nature of iam injunction, granted without .a sworn, petition being filed, and without) requiring the filing of a bond. Code, sections 3388-3395. \\u2014 Reversed.\"}"

iowa/2101628.json

@@ -0,0 +1 @@
+"{\"id\": \"2101628\", \"name\": \"State of Iowa v. Frank Sunderland, Appellant\", \"name_abbreviation\": \"State v. Sunderland\", \"decision_date\": \"1896-05-25\", \"docket_number\": \"\", \"first_page\": \"737\", \"last_page\": \"737\", \"citations\": \"101 Iowa 737\", \"volume\": \"101\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:35:52.969999+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Iowa v. Frank Sunderland, Appellant\", \"head_matter\": \"State of Iowa v. Frank Sunderland, Appellant\\nSelling liquor: Conviction sustained.\\nAppeal from Buchanan District Court. \\u2014 Hon. A. S. Blair, Judge.\\nMonday, May 25, 1896.\", \"word_count\": \"183\", \"char_count\": \"1080\", \"text\": \"Per Curam.\\n'This case is submitted upon a transcript' alone, which shows that the defendant was tried and convicted before a justice of the peace on an information in two counts, charging him with having sold intoxicating liquors contrary to law, at certain times and to certain persons named.\\nJudgment was entered against him that he pay a fine of fifty dollars on each count, and costs, and that he stand committed until paid.\\nDefendant appealed to the district court, and in that court entered a plea of guilty to the second count in the information, \\\"which plea the state of Iowa accepts.\\\" Judgment was entered that defendant pay a fine of fifty dollars and costs, and that he stand committed in the county jail of Buchanan county until such fine is paid, from which judgment he appeals to this court.\\nWe discover no error in the proceedings, and the judgment of the district court is, therefore, affirmed.\"}"

iowa/2118351.json

@@ -0,0 +1 @@
+"{\"id\": \"2118351\", \"name\": \"Albert T. Chambers v. The Illinois Central Railroad Company, Appellant\", \"name_abbreviation\": \"Chambers v. Illinois Central Railroad\", \"decision_date\": \"1897-12-18\", \"docket_number\": \"\", \"first_page\": \"238\", \"last_page\": \"241\", \"citations\": \"104 Iowa 238\", \"volume\": \"104\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:18:34.651465+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ladd, J., takes no part. -\", \"parties\": \"Albert T. Chambers v. The Illinois Central Railroad Company, Appellant.\", \"head_matter\": \"Albert T. Chambers v. The Illinois Central Railroad Company, Appellant.\\nRemoval of Causes; state court\\u2019s power over. A state court has no jurisdiction to sustain a motion by plaintiff to dismiss the case after defendant has filed a proper petition and bond for removal of the cause to a federal court, under Twenty-fifth United States Statute, chapter 866, sections 3, 3, providing that when such petition and bond are filed \\u201cwithin the time it shall be the duty of the state court to accept the same and proceed no further\\u201d in the suit.\\nAppeal from Woodbury District Court. \\u2014 Hon. Scott MLadd, Judge.\\nSaturday, December 18, 1897.\\nThis case is submitted on appellant\\u2019s' abstract and argument alone, there being no appearance by the appellee. The abstract shows that on December 27, 1895, plaintiff filed his petition, asking to recover six thousand dollars, from defendant on account of personal injuries; that on January 4,1896 (being within the time required), defendant answered, joining issue upon the allegations of said petition; that at the same time the defendant filed its petition and bond for the removal of this case to the circuit court of the United States for the Northern district of Iowa, Western divisi\\u00f3n; that thereafter, to-wit: on January 11, 1896, plaintiff applied to said district court, by motion, to dismiss this case without prejudice to further action, which motion was sustained, to which defendant excepted, and from which ruling it appeals.\\nReversed.\\nJohn F. Duncombe and S. M. Marsh for appellant.\\nNo appearance for appellee.\", \"word_count\": \"933\", \"char_count\": \"5392\", \"text\": \"Given, J.\\nThe petition for the removal of this cause was made under sections 2 and 3 of chapter 866, 25 U. S. Statutes at Large. The abstract shows that the application was as required by these sections, and presented a proper case for removal; also, that the bond was in proper form and amount, and conditioned as required. The application and bond were filed with the answer within the time allowed for answering, and the bond was approved by the clerk, by order of the eourt. Appellant insists that, as the case is a proper one for removal, by the filing of the application and bond, and approval of the bond, within the time required, the jurisdiction of the state court ceased, and that of the United States court immediately attached. Said section provides that when such a petition and bond are filed within the time required, \\\"it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit; and-the said copy being entered as aforesaid in the circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court.\\\" In Stone v. South Carolina, 117 U. S. 431 (6 Sup. Ct. Rep. 799), it is said: \\\"It is undoubtedly true, as was stated in Steamship Co. v. Tugman, 106 U. S. 118-122 (1 Sup. Ct. Rep. 58), that upon the filing of the petition and bond, the suit being removable under the statute, the jurisdiction of the state court absolutely ceases, and that of the United States Court immediately attaches; but, still, as the right of removal is statutory, before the party can avail himself of it, he must show upon the record that his is a case which comes within the provision of the statute. If he fails in this, he has not, in law, shown to the court that it cannot proceed further with the suit. To accomplish the removal, the suit must be one that may be removed, and the petition must show a right in the petitioner to demand a removal. This being made to appear on the record, all the necessary security having been given, the power of the state court in the case ends, and that of the United-States circuit court begins.\\\" In Van Horn v. Litchfield, 70 Iowa, 12, this court said: \\\"It-is a rule settled by the decisions of the United States supreme court that, upon the filing of a petition in a state court presenting a sufficient cause for removal to the United States court, the rightful jurisdiction of the state court comes to an end. The state court must stop when the petition and security are presented;\\\" citing cases. Further citations are unnecessary to show that, when this petition and bond were filed, on January 4, 1896, the district court immediately ceased to have jurisdiction of this case for any purpose, and that jurisdiction thereof immediately passed to the United States court. This being true the state court had no jurisdiction to thereafter, on January 11, 1896, entertain or sustain plaintiff's motion to dismiss the case. The case was then pending in the United States court, and could only be dismissed in that court. Appellant suggests the inquiry whether it is prejudiced by this error of the district court, and answers it by insisting that, as plaintiff could not defeat the removal by reducing the amount of his demand after the removal was asked, he could not defeat it by dismissing after removal was made, and suing for lesser sum. While there is force in this answer, another is that defendant is prejudiced by the error in that it cannot know until this appeal is determined whether the case is still pending against it or not. This being the proper court to review the action of the district court, and its action in sustaining the motion to dismiss being erroneous and prejudicial to appellant, it is reversed.\\nLadd, J., takes no part. -\"}"

iowa/2157727.json

@@ -0,0 +1 @@
+"{\"id\": \"2157727\", \"name\": \"H. B. Dye v. W. H. Augur and Charles Schrage, Appellants\", \"name_abbreviation\": \"Dye v. Augur\", \"decision_date\": \"1907-01-18\", \"docket_number\": \"\", \"first_page\": \"538\", \"last_page\": \"543\", \"citations\": \"138 Iowa 538\", \"volume\": \"138\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:03:56.887778+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. B. Dye v. W. H. Augur and Charles Schrage, Appellants.\", \"head_matter\": \"H. B. Dye v. W. H. Augur and Charles Schrage, Appellants.\\n1 Intoxicating liquors: statement of consent: appeal: payment of fee. Where a proceeding to test the validity of a statement of consent to the sale of liquor was docketed in the district court, prior to filing of a motion to dismiss the same because the docketing fee had not been paid, the motion was rightly overruled.\\nFriday, January 18, 1907.\\nRehearing Denied, Monday, June 8, 1908.\\n2 Sufficiency of statement of consent: manner of trial. The determination of the sufficiency of a statement of consent to the sale of liquor on appeal is a special proceeding triable to the court as a law action, and the right to a continuance for the purpose of taking the testimony in writing does not obtain.\\n3 Same: amendment: limitations. The allegation of citizenship by way of amendment to the original denial of the statement of consent is not the introduction of a new cause of action, and is not barred because not filed within thirty days as provided by Code, section 2450.\\n4 Pleading: denial of capacity to sue. One contesting the sufficiency of a statement of consent to the sale of liquor does so as a representative of the public and may allege his citizenship generally, as showing his capacity to sue, which he is not required to prove under a general denial; but to raise the issue of his want of capacity the facts relied upon must be specifically pleaded.\\n5 Consent petition: withdrawal of signatures. The written with-drawal of names from the statement of consent to the sale of liquor need not show the voting precinct of the signers thereto, as in the case of signatures to the statement itself.\\nAppeal from Grundy District Court.\\u2014 Hon. Franklin C. Platt, Judge.\\nAppeal from a judgment against a statement of consent.\\u2014\\nAffirmed.\\nTlieo. F. Bradford and II. B. Boise, for appellants.\\nF. W. Reisinger, C. T. Rogers, and J. T. Hauser, for appellee.\", \"word_count\": \"1617\", \"char_count\": \"9418\", \"text\": \"Sherwin, J.\\nOn the 22d day of November, 1901, there was filed in the auditor's office of Grundy county, Iowa, a general statement of consent for the sale of intoxicating liquors in said county, which purported to have been signed by 65 per cent, of the legal voters of the county who voted at the last preceding general election therein. The petition was, in fact, signed by more than 65 per cent, of such voters; it being stipulated on the trial in the district court that three thousand one hundred and nineteen legal votes were cast at the general election in 1904, and that two thousand one hundred and five of the voters signed the original petition of consent. Before the board of supervisors canvassed the petition, five hundred and forty purported withdrawals therefrom were filed with the auditor, and the appellants admit that two hundred and thirty-four signers* of the petition signed the withdrawal. The board of supervisors seems to have ignored the withdrawals from the petition.' At any rate, it was found to be sufficient, and thereafter, and within the time provided by section 2450 of the Code, the plaintiff filed with the clerk of the district court a bond and a general denial as to the statement of consent, after which notice was given as required by the same section, and the statement was certified to the district court, where the proceeding was docketed and a continuance given the defendants. Still later, as we understand the record, the plaintiff was permitted to amend his bond and general denial, alleging in the latter that he was a citizen of the county, an allegation that was not made in his original denial.\\nMotions were made to strike this amendment and to dismiss the appeal because the case had not been docketed by the plaintiff and the filing fee paid to the clerk. Both of these motions were overruled, and there-. upon the defendants asked that the case be tried as an equitable action, and this was also denied them. The case seems to have been docketed in the district court some time before the motion to dismiss was made because the docketing fee had not been paid, and under the rule announced in Squires v. Millet, 31 Iowa, 169, there was no error in overruling the motion.\\nThe appellants insist that it was the intent of the Legislature that these cases should be tried on appeal from the findings of the board of supervisors in equity, and not as sPecial proceedings; and that being triable as equitable actions, they had the right to take their testimony in writing and to have a continuance for that purpose. In Green v. Smith, 111 Iowa, 183, we held that the trial provided for by section 2450 was a special proceeding not triable by a jury, and with this holding we are satisfied. The fact that the statute declares that it shall be tried de novo in the district court does not necessarily indicate that the Legislature intended it to be tried as an equitable action. Indeed, the entire statute clearly shows an intent to have a speedy disposition of questions that may arise thereunder, and, if it were possible to compel either side to await the slow process of taking the depositions of a large number of witnesses located all over the county, it would amount to a practical denial of relief. W.e are fully satisfied that such was not the legislative intent.\\nAs we have already said, the plaintiff did not allege in his original denial that he was a citizen of the county, and the appellants urge that it is essential to both allege and prove citizenship; and, further, that the allegation in the amendment to the denial created a new cause of action, and because it was made after the lapse of five months it was barred by the limitation of Code, section 2450, which is thirty days. The allegation of citizenship did not state a new cause of action.\\nThe original denial put in issue'the sufficiency of the general statement of consent, and that was the issue and the only issue that was in fact tried. The amendment did nothing more than to allege that the denial was made by one authorized to make it. The plaintiff instituted the contest as a representative of the public, under a statute expressly providing therefor. It was not a contest, therefore, in which he alone was interested, and acting in a representative capacity he was not bound to prove such capacity until it was put in issue by sufficient allegations in the appellant's pleadings. Code, section 3627, provides that a plaintiff suing in any way implying representative or other than individual capacity need not state the facts constituting such capacity or relation, but may aver the same generally, or as a legal conclusion; and section 3628 says that, if such allegation is controverted, \\\" it shall not be sufficient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated.\\\" The appellants did not controvert the allegation of citizenship, except by a denial, and hence no issue thereon was raised under the statute, and no proof thereof required. Littleton v. Harris, 73 Iowa, 167; Shear v. Green et al., 73 Iowa, 688.\\nThe appellants further contend that the withdrawals from the petition are insufficient to reduce the petition to less than 65 per cent. The stipulation to which we have already referred admits that the statement of consent as originally filed was sufficient, and the only question remaining for determination is the number of names on the withdrawal that should be taken from the statement of consent. The appellants concede that two hundred and thirty-four signers of the general statement signed the withdrawal, and that the withdrawal of about seventy-five would leave less than the required 65 per cent.; but they say that the same formality must be observed in withdrawing names from the statement that is required in securing it, and, if this be true, that sufficient names cannot be counted to render the statement insufficient. Code, section 2452, provides that every statement of consent shall be accompanied by the affidavit of some reputable person, showing that said person personally witnessed the signing of each name appearing thereon, and that all such statements shall show the voting precinct of the signers thereof. Of the names on the withdrawal, one hundred and thirty-one were accompanied by the affidavit required for the statement, but failed to give the voting precinct. Whether a withdrawal should be accompanied by the same kind of an affidavit that is required for the statement, we need not determine in this case because one hundred and thirty-one of the names thereon were so supported. If the statement complies with the law, the voting precinct of the signer appears thereon, and except in cases where there may be two signers of the same name, either in the same or different precincts, nothing is to be gained by naming the signer's precinct in the withdrawal, for it appears on the statement, and identification is an easy matter. In the event of duplicate names, it will not be difficult to identify the parties if it should become material to do so. In the instant ease the question is of no moment because of the appellants' concession that two hundred and thirty-four signers of the statement signed the withdrawal. What we have already said disposes of the important questions in the case, and we need not go into the question of idem sonans.\\nThe district court was right in declaring the statement of general consent insufficient, and the judgment is affirmed.\"}"

iowa/2163128.json

@@ -0,0 +1 @@
+"{\"id\": \"2163128\", \"name\": \"J. W. Watson, Appellee, v. W. H. Bowman, survivor, Appellant, Charles G. Freeman, Defendant\", \"name_abbreviation\": \"Watson v. Bowman\", \"decision_date\": \"1909-02-11\", \"docket_number\": \"\", \"first_page\": \"528\", \"last_page\": \"533\", \"citations\": \"142 Iowa 528\", \"volume\": \"142\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:02:28.348556+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. W. Watson, Appellee, v. W. H. Bowman, survivor, Appellant, Charles G. Freeman, Defendant.\", \"head_matter\": \"J. W. Watson, Appellee, v. W. H. Bowman, survivor, Appellant, Charles G. Freeman, Defendant.\\n1 Mortgages: subrogation: judgment creditors: priority of liens, One who furnished the mortgagor with money' to pay off the mortgage debt may be subrogated to the rights of the mortgagee, through an arrangement with the mortgagor by which the note and mortgage are turned over as security for the money so advanced, although the original mortgagee is not a party to the arrangement; and he may enforce the mortgage as against a judgment creditor whose lien accrued subsequent to the mortgage, but prior to his acquisition of the same. And the taking of a new note and mortgage as collateral without surrendering the original was not a waiver of the right to resort to the original security for protection against intervening liens.\\n2 Evidence: identification and offer of instruments. Where it i s evident from the entire record on a foreclosure of a mortgage, that the' same was tried and determined on the theory that the note and mortgage were in evidence, and no objection was made in the trial court to the identification and proof of the instruments, the cause will not be reversed simply because of a failure to formally offer the same in evidence.\\n3 Mortgages: failure to name mortgagee: priority of liens. Failure to name a grantee in the granting clause of a mortgage, where it clearly appears from the instrument that the holder of the note is intended as the mortgagee, is not available to a judgment creditor of the mortgagor before levy and sale, to defeat the lien of the mortgage in favor of one subrogated to the rights of the mortgagee.\\nAppeal from Keokuk Superior Court. \\u2014 Hon. W. L. McNamara, Judge.\\nThursday, February 11, 1909.\\nRehearing Denied Wednesday, May 12, 1909.\\nThis is an action to foreclose a mortgage, and to establish a priority of lien over a judgment held by defendant Bowman. There was a decree for plaintiff. Defendant Bowman appeals.\\nAffirmed.\\nA. L. Parsons and Hollingsworth & Blood, for appellant.\\nF. T. Hughes, for appellee.\", \"word_count\": \"1729\", \"char_count\": \"9950\", \"text\": \"Evans, C. J.\\nThe defendant Freeman is the owner of certain real estate involved in this controversy. He became such owner in May, 1898, by purchase from one Swettman. At the time of such purchase the property was incumbered by mortgage for $250, held by one Deamude. This mortgage was assumed by Freeman as a part of the purchase price. It bore date September 1, 1897, and was to become due in three years from date. The defendant Bowman is a judgment creditor of Freeman, having obtained a judgment against him for $920 on July 11, 1900. The evidence, on behalf of plaintiff, tends to show that about September, 1899, an arrangement was entered into between Freeman and the plaintiff, Watson, whereby Watson was to take the Deamude mortgage of $250 and carry the same as a debt and lien against Freeman and the property until its maturity. The occasion for this arrangement was that the husband of the mortgagee had expressed a desire for the money at about that time. The plaintiff, Watson, furnished the $250 in pursuance of this arrangement, and- it was taken by Freeman and paid to the mortgagee. lie received the note and mortgage from the mortgagee, and delivered the same to the plaintiff, who has held the same ever since. It is claimed by Freeman that when he took the money to the mortgagee he explained to her the arrangement between him and Watson, and that she made no objection thereto. There was never any formal cancellation of the note or mortgage, and never any release of the mortgage on record until after the commencement of this suit. After the maturity of the Deamude mortgage in October, 1900, the plaintiff took a new note and mortgage from Freeman for the same debt, and held the same as collateral' to the Deamude note and mortgage. He asks that he be held to be the owner of the Deamude note and mortgage, and that he be subrogated to all .the rights of the mortgagee therein, and that his lien be held superior to the lien of the Bowman judgment. On the part of the defendant the evidence tends to show that the transaction between Freeman and Watson was simply a loaning of the funds to Freeman, and that he used the same in paying off the Deamude mortgage, and that such transaction was not had in 1899, but in 1900, after the Deamude mortgage was due, and that the mortgagee of the Deamude mortgage never assented to any ar rangement whereby Watson was to become the owner of such mortgage. He contends that the plaintiff has no other lien than that of his mortgage taken in October, 1900, which is subsequent in date to the defendant's judgment, and he asks that his judgment lien take priority. The lower court found the issues with the plaintiff.\\nIf it be true that there was such an arrangement as is contended for between Freeman and Watson, and srxch arrangement was made known to the mortgagee at the time she received the money for her mortgage, it would amount to an or\\u00e1l equitable assignment of the mortgage, and would present no difficult question of law. The evidence as to whether such arrangement was communicated to the mortgagee by Freeman is so nearly in the balance that we proceed to inquire whether the plaintiff may be subrogated to the rights of that mortgagee under the arrangement between him and the mortgagor, without the knowledge of the mortgagee. It seems to be settled by our decisions that such an arrangement is valid as between the parties thereto, and that the plaintiff is entitled to hold the note and mortgage as security for the money advanced by him in pursuance of such arrangement, even though the mortgagee was not. a party to the arrangement. Heuser v. Sharman, 89 Iowa, 355; National Life Insurance Company v. Ayres, 111 Iowa, 200. The fact of such an arrangement between Freeman and Watson is very clearly proven. If the plaintiff, then, was entitled to hold the Deamude mortgage as against Freeman, he was prior in point of time to the Bowman judgment. Bowman's judgment lien attached only to the interest that Freeman actually had, whether such interest was apparent upon the record or not. In other words, the rights of a judgment creditor as a lienholder are no greater before levy or sale than the rights of the judgment debtor. Moore v. Scruggs, 131 Iowa, 692. When Watson took his second mortgage in October, 1900, he did not know of the judgment. Neither did he surrender'the former note and mortgage; the new note and mortgage having been taken for the same debt. The plaintiff did not lose his right to resort to his first mortgage to protect himself against intervening liens. Young v. Shaner, 13 Iowa, 555. We think the lower court correctly held that the plaintiff was entitled to hold and foreclose as his own the Deamude note and mortgage.\\nII. The plaintiff set up the Deamude note and mortgage in his pleadings by copy thereof. The answer of the defendant contained a general denial. The evidence presented no controversy as to the existence of the Deamude note and mortgage, and as to ^ p\\u00a1ain^\\u00a3f>s actual possession thereof. It fails to appear, however, that they were formally introduced in evidence. The defendant, therefore, contends that plaintiff's case has wholly failed,, and that the decree below should be reversed, and defendant's principal argument'is devoted to this question. The question gives us much difficulty, and we are disposed to censure the carelessness that would permit such an oversight on the part of counsel. It is manifest from the record as a whole that the papers were present in court, and the oral testimony of witnesses refers to \\\"this note and mortgage.\\\" We take this to indicate, either that the note and mortgage were present, or else that reference was had to the note and mortgage set out by copy in plaintiff's petition. The record as a whole satisfies us that the case was tried on the theory that the note and mortgage were in evidence. Certain it is that the question now argued here was in no manner presented to, or considered by, the lower court. The decree entered by the court discloses the fact that the instruments sued on were deemed as being in evidence, and foreclosure is granted thereon. This court has heretofore gone to considerable length to support a judgment of the court below, rather than to reverse, upon a rnani fest oversight. This is especially so where the ground and theory upon which the lower court entered judgment is manifest from the record as a whole. In view of the whole record in this case we think the Deamude note and mortgage were sufficiently identified and proved, in the absence of objections in the lower court, and that we would not be warranted in reversing the decree on such technical ground. Hintrager v. Kiene, 62 Iowa, 605; Pitts v. Seavey, 88 Iowa, 336.\\nIII. It appears from the copy of the Deamude mortgage, which was set up in plaintiff's petition, that no name of a mortgagee appeared in the granting clause of said mortgage, and this defect is urged by the 007 0 d defendant Bowman as fatal to the mortgage, If the rights of purchasers without notice were involved, a serious question might be . presented here. The mortgage does describe the debt which it is given to secure, and fully discloses the beneficiary intended to be secured thereby. There is no question, under the recitals of the mortgage as a whole, but what the holder of the note was intended as the mortgagee. As between the parties to the transaction the mortgage would be good in a- court .of equity. As against Freeman it is good because he.agreed to pay it. As between Freeman and Watson it is good because they made'their contract with reference to it as it was. As already indicated, the rights of Bowman as a judgment lienholder can rise no higher than the rights of Freeman as debtor; The defect, therefore, avails the defendant nothing.\\n' Npon the whole record, the decree of the lower court was right, and it is affirmed.\"}"

iowa/2165277.json

@@ -0,0 +1 @@
+"{\"id\": \"2165277\", \"name\": \"State of Iowa v. D. T. Blodgett, Appellant\", \"name_abbreviation\": \"State v. Blodgett\", \"decision_date\": \"1909-06-07\", \"docket_number\": \"\", \"first_page\": \"578\", \"last_page\": \"590\", \"citations\": \"143 Iowa 578\", \"volume\": \"143\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:07:36.805817+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Iowa v. D. T. Blodgett, Appellant.\", \"head_matter\": \"State of Iowa v. D. T. Blodgett, Appellant.\\n1. Criminal law: forgery: intent: evidence. On the question of defendant\\u2019s fraudulent intent in making an alleged false school order for the payment of money, the evidence is reviewed and held sufficient to take the issue to the jury.\\n2. Same: forgery: school order: indictment. In view of the provisions of Code section 4853, it is not necessary that there should have been a resolution by the school officers directing the issuance of a school order to render the making of a false order forgery, nor is it necessary to allege an intention to defraud any particular person.\\n3. Change of venue: discretion. In passing upon a motion for change of venue on the ground of prejudice of the judge, the court should not base the ruling upon his inclinations, or upon the belief of the accused, or the proprieties of the situation, but should determine the question according to the very right of it; and unless an abuse of discretion is shown his ruling will be sustained.\\n4. Criminal law: forgery: uttering forged instrument: former jeopardy. Forgery and the uttering of a forged instrument are distinct offenses;; and the crime of forgery is not a degree of the crime of uttering, nor is it necessarily included therein. Fraudulent intent in the making of a forged instrument is essential to the crime of forgery, though it need not be proven to establish the crime of uttering; and where there is no doubt of the identity of the defendant accused in both instances, or the identity of the transactions, the question of former jeopardy is one of law for the court.\\n5. Same. An acquittal of the crime of uttering a forged instrument is not a bar to prosecution for forging the same instrument.\\n6. Criminal law: review on appeal: what constitutes the record. The statute requiring the Supreme Court to examine the record without regard to technical errors not affecting the substantial rights of the parties, has reference to the record on which the cause was submitted, which may be a transcript of all papers filed in the case, except those returned by a committing 'magis trate, and all. entries in the record book, but not including the evidence.\\n.Weaver, J., dissenting.\\nAppeal from, Pollc District Court. \\u2014 Hon. W. G. Clements, Judge.\\nMonday, June 7, 1909.\\nRehearing Denied Friday, September 24, 1909.\\nThe defendant was convicted of the crime of forgery, and appeals.\\nAffirmed.\\nH. W. Byers, Attorney-General, Chas. W. Lyon, Assistant Attorney-General, and Lawrence De Ch'aff, County \\\"Attorney, for the State.\\nD. T. Blodgett, pro se.\", \"word_count\": \"4246\", \"char_count\": \"23881\", \"text\": \"Ladd, J.\\nThe indictment accused' the defendant of the false making of an order in words following: \\\"No. 214. $116.00. April 12, 1906. Treasurer of the School Township of Douglas, County of Polk: One year after date without interest pay to D. TBlodgett, or order, the sum of one hundred sixteen dollars from the contingent fund for Cyclopedias in suhdistrict No. -. By order of the board of directors. Frank Berkey, President. E. F. Mathis, Secretary.\\\" The defendant was in the employment of the Holst Publishing Company as a canvasser for the sale of encyclopedias for the use of schools, and the above order was indorsed by the defendant and delivered to B. P. Holst, manager of that company, who credited him with the amount thereof and issued to him a check on a bank for $63. The defendant, in his own behalf, testified to the false making of the order, and explained: That it was done \\\"at the request of B. P. Holst. That the latter was owing him $600 or $800 for work. That he made this order because Mr. Holst wanted it to keep as a memorandum between him and me, as to how much money and books he has given me in payment for services performed. I made the warrant because I didn't think he would <use it for an illegitimate purpose. My intention in making this instrument was that it should be returned to me when certain events transpired. The instrument was given to him to be kept until litigation that was pending should be determined. Holst didn't want the young lady working in the office to know, anything about the fact that he was paying me for making the resistance to the opposition to the sale of his books and that he was paying me for that, and wanted it to appear that he was paying me for selling books, and I made the instrument so that it would appear to be a good one, so that the young lady there at the office would not know anything about it, but that it was a good instrument. That is why there was an attempt to imitate the signatures of the president and secretary of this board. I never demanded any payment on this order.\\\"\\nCross-examination: \\\"Mr. Holst made this request of me to make the instrument at Luther, Iowa. I used a pencil to write Prank Berkey's name, and used ink in simulating the signature of E. P. Mathis, so that it would appear good to the young lady in the office. I never received any school township warrant from Douglass township while Berkey was president and Mathis secretary. I do not know from what source I got the signature of Prank Berkey to simulate his signature on this warrant. I think I had a letter from Mr. Mathis, and I took that letter and laid it over the school warrant and took a knitting needle and run right over the signature, and then I traced that with ink. I don't know how I got the signature of Prank Berkey in pencil. I don't remember whether I had his signature, or anything about that. I made his j ust the same as I did the other. I used indelible pencil in writing the name of Frank Berkey. I traced the line, yes. I did this about a day or two after Holst- made the request. I had these blank warrants. I had a book of them. I inserted the word 'Douglas' on this warrant. The blank said 'the school township of \\u2014.' I don't remember where I got the book of blanks. I next saw Holst at his home in Boone a few days afterwards, five or six, I think, after making this warrant. I intended first to send it to him by mail, but I presented it to him personally. I was at borne in Des Moines, Iowa, when I made' it. No one else was present when I gave this warrant to Mr. Holst at Boone, and no one else was present when he made the request.\\\"\\nHolst denied ever having made the request as testified to by defendant, and swore that ho gave the cheek in the belief that the order was genuine and had no knowledge of the falsity of the instrument until payment was refused. His testimony was somewhat corroborated, and other testimony bearing thereon was adduced, so that the evidence was sufficient to carry the issue as to whether the making was with fraudulent intent to the jury.\\n2. Same forgery school order indictment. II. Appellant urges that the indictment was insufficient, in that it does not allege authority of the officers of the school township to issue the order. The point raised is that as no resolution of the directors directing the issuance of the order . . , was adopted, it necessarily was invalid. Johnson v. School Corporation of Cedar, 117 Iowa, 319. But it is not essential to constitute the offense that the false instrument would have been'of legal efficacy if true. \\\"If any person with intent to defraud falsely make . . . any instrument in writing, being, or purporting to be the act of another by which any pecuniary demand or obligation . . . . is or purports to be created, . he shall be punished.\\\" Section 4853, Code. This purports to be an order on tbe school treasurer issued by the officers authorized by law to execute the same, and is therefore within the language of the section from which we have quoted. It is enough that it is of apparent legal- efficacy. State v. Van Auken, 98 Iowa, 674; State v. Sherwood, 90 Iowa, 550; People v. Munroe, 100 Cal. 664, and cases collected in note to 24 L. R. A. 33. It was unnecessary to allege an intention to defraud any particular person (State v. Maxwell, 47 Iowa, 455), and it is not very material whether the design was to defraud the school township or the publishing company or Holst. See People v. Bibby, 91 Cal. 475 (27 Pac. 781); Commonwealth v. Brown, 147 Mass. 585 (18 N. E. 587, 1 L. R. A. 620, 9 Am. St. Rep., 736); Gregory v. State, 11 Ohio St. 329.\\nIII. The indictment was returned June 30, 1908, and a few days later an application was presented to the judge, then presiding, praying for a change of venue on two grounds:' (1) Prejudice of the inhabitants of the county, and (2) prejudice of the J \\\\ J judge.- ibis was denied but the court announced that a judge not residing in the county would preside at the trial. A. D. Pugh, Esq., was appointed to defend, and the cause set down for trial on September 28th following. At that time the accused first ascertained that Hon. W. G. Clements of Newton was on the bench and promptly amended the application for change of venue. Thereupon the defendant proceeded to examine his honor touching matters in the past and also testified. In this way it was made to appear: That the judge was not aware that he would preside at the trial until two days previous; that he had known the accused for twenty-five years; that while sitting on the district bench in Des Moines in 1907 he had overruled motions to dismiss three indictments charging defendant with having libeled some of the judges of the ninth judicial district, and before doing so examined the record; that subsequ\\u00e9ntly defendant had written him a letter saying he did not wish him again to make any rulings in any action in which he might be interested; also, that defendant, who was one of the substituted plaintiffs 'in Brown v. Zachary, 102 Iowa, 433, had filed a petition for rehearing therein and a resistance to a motion to strike the same as scandalous, in each of which he had assailed Judge Clements with accusations of unprofessional conduct and as being unworthy of confidence as a witness. It appears that the judge was one of the attorneys for the defendants in that case and as a witness had disagreed with defendant concerning a conversation had between them.\\nTwo things seem important in the administration of justice: (1) That every litigant have a fair trial; and (2) that this be made apparent to him from the rulings and procedure. Doubtless the accused, because of what he had said in the petition for rehearing in Brown v. Zachary and the resistance of the motion to strike the same and in his recent letter, believed that his honor had become prejudiced against him; but the court was not to base the ruling on his inclination or upon the belief of the accused or the proprieties of the situation, but according to the very truth, and, unless in doing so it. can be said there was abuse of discretion, the ruling must be sustained. State v. Billings, 77 Iowa, 418; State v. Foley, 65 Iowa, 51; State v. Hale, 65 Iowa, 575; State v. Ingalls, 17 Iowa, 8.\\nThe rulings on the motions did not furnish the slightest indication of ill-will. Nor can such effect be attributed to the letter written by defendant when disappointed over such rulings, though such letters may be in bad taste. This often happens, and no judge would think of harboring resentment because of such manifestation of one of the infirmities of human nature. Indeed few judges serve any considerable time without receiving communications expressing displeasure with decisions. -The criticisms of ungracious losers are so common that they cannot be treated as a basis for holding that a court is likely to be swerved thereby from a course of rectitude. '\\nNor do we regard what may have been inserted in a petition for rehearing or resistance to a motion to strike the same-more than ten years prior to the trial as likely to have engendered lasting prejudice. It is not uncommon for both attorneys and litigants to become, irritated and extreme, in -their positions in the course of litigation. New attorneys escape entirely the criticism of opposing litigants, and witnesses seldom do; but it does not follow that the unkind things said in the heat of argument are harbored during all the years thereafter and brooded over in the spirit of malevolence. They are but incidents in the course of litigation soon overlooked in the stress of other affairs, especially by attorneys who take up the con-, troversy of others before the one is disposed of; and the statement of his honor that these matters had been overlooked long ago, and that he entertained no feeling against defendant, may well be accepted as true. If there were any doubt on the subject, it is removed upon examination of the record bearing unquestionable proof of the fairness -and patience with which he presided at the trial. There was no error in denying the application for change of venue. What we have said disposes of the criticism of the judge first presiding for inviting Judge Clements to hear the cause, but, as he is not shown to have been aware of any objection to the latter, the criticism in any event was unfounded.\\nIY. The defendant interposed the plea that he had been indicted for uttering the identical instrument in Boone County, tried on said charge, and acquitted, and that this constituted an acquittal of the offense of x forging the same writing. A certified copy of the record of the proceedings in Boone County was attached to the plea, and its sufficiency as a har to the prosecution was raised by a demurrer filed by the State. The demurrer was sustained, and the defendant was not allowed to introduce evidence tending to support the same or to go to the jury on the issue. There being no question as to identity of defendant as the person accused in both trials, nor as to the identity of the transactions, the issue was purely of law and rightly determined by the court. State v. Jamison, 104 Iowa, 343; Hooper v. State, 30 Texas App., 412 (17 S. W. 1066, 28 Am. St. Rep., 926); Gunter v. State, 111 Ala. 23 (20 South. 632, 56 Am. St. Rep. 17); State v. Williams, 152 Mo. 115 (53 S. W. 424, 75 Am. St. Rep. 441). Was it rightly decided? That the offenses of forgery and of uttering a forged instrument are distinct offenses appears from State v. McCormack, 56 Iowa, 585 (9 N. W. 916).\\nAnd the crime of forgery is not a degree of that of uttering. State v. Bigelow, 101 Iowa, 430. It is not necessarily included therein, for one who utters need not be shown to- have forged the instrument' uttered; but, to convict one of having uttered a false and forged instrument, an essential element of the proof is that it is in fact a forgery, or of such a character that, if made with fraudulent intent, the maker would be guilty of forgery. 2 Bishop, N. Cr. 1. section 605. But the fraudulent intent in the false making, though essential to constitute the crime of forgery, need not be proven to establish the crime of uttering. This appears from the statutory definition of the latter offense. Section 4854 of the Code declares that, \\\"if any person utter and publish as true . . . any instrument in writing mentioned in the preceding section (that defining forgery) knowing the same to be false, altered, forged or counterfeited with intent to defraud,\\\" he shall be punished accordingly. If the writing is of the kind enumerated in the preceding section, and is false, it is sufficient as a\\u00f1 instrument with which to commit the offense of uttering and- publishing as true, and to establish the latter offense it is not essential to prove by whom it was made or with what intent.\\nManifestly, then, acquittal of the crime of uttering and publishing as true does not involve a finding that the instrument alleged to have been passed was forged, and this is the conclusion reached by courts generally. Beyerline v. State, 147 Ind. 125 (45 N. E. 772) the accused was acquitted on an indictment for uttering in which he was alleged to have made the instrument, and the court held that this was not a bar to prosecution for the crime of forgery, saying: \\\"Neither is it correct to say that the proof to sustain one charge is the same as would be required to support the other. It is true that it is stated, in the information set out in the plea, 'that the names of the said George Beyerline and Jacob Schapvenacker were false and forged by the said Fred Beyerline'; but that is by way of recital, and not as a charge, the words being simply descriptive of the signatures to the note. Surely if such statement and description had been made, showing that the names had been forged by another person named, it would not be contended by counsel that such other person would thereby be sufficiently charged with the crime of forgery.\\\" In Missouri a statute prohibits a trial of \\\"any offense necessarily included\\\" in an indictment on which the accused has been acquitted or convicted, and in State v. Williams, supra, the defendant interposed as a plea in bar to a prosecution for forgery an acquittal of having uttered the same instrument, and the court held that forgery was not an included offense, and, as proof of forgery by some one else would have sufficed in the charge of uttering, forgery by the accused was not necessarily included in uttering,' and for these reasons the plea was overruled. In Preston v. State, 40 Tex. Cr. App. 72 (48 S. W. 581), a former acquittal of the charge of forging the identical instrument was held not to be a bar to prosecution for' uttering on the ground that the two are distinct offenses, and a like ruling was made in Hooper v. State, 30 Tex. App. 412 (17 S. W. 1066, 28 Am. St. Rep. 926). In Harrison v. State, 36 Ala. 248, a former acquittal of the charge of having forged the instrument alleged to have been passed was held not to be a bar to the prosecution, as it did not appear that \\\"the facts alleged in this, the second indictment, if proven to be true, would have warranted a conviction of the first indictment.\\\" See, also, Ball v. State, 48 Ark. 94 (2 S. W. 462); State v. Moore, 86 Minn. 422 (90 N. W. 787, 61 L. R. A. 819), cited by appellant, is not in point.\\nAs indicated in the-Indiana case, the reference to the instrument alleged to have been passed in an indictment for uttering as false, forged and the'like is descriptive characterizing the means employed to perpetrate the crime. No allegation that the accused made the false instrument or, if he did, that this was done with fraudulent purpose, is essential, and upon conviction or acquittal of the charge the question as to whether the instrument in fact was forged remains open. Section 5405 of the Code provides that \\\"the jury must render a general verdict of 'guilty' or 'not guilty' which imports a conviction or acquittal of every material allegation of the indictment.\\\" Manifestly this has reference to acts or omissions of which the accused is charged. Otherwise there might be a conviction or acquittal of matters for which the accused might not have been responsible at all. Neither in the accusation nor trial for the fraudulent uttering is the responsibility of the accused for the falsity of the instrument involved, and it would be preposterous to say that, though not charged with the false making, a verdict of not guilty would constitute an acquittal thereof. In many of the decisions it is said that-the most infallible test by which to determine whether a former judgment is a bar or not is to inquire whether the same evidence will support both the present and the former prosecution. In State v. Waterman, 87 Iowa, 255, both indictments charged the obstruction of a highway and acquittal on the first was on the ground that there was no highway to be obstructed, and this was held to bar the second prosecution. In State v. Ingalls, 98 Iowa, 728, an acquittal on an indictment for larceny was held not to operate as a bar to a prosecution for breaking and entering, part of the same transaction when the larceny was committed. In State v. White, 123 Iowa, 425, an acquittal of the' charge of keeping a gambling house was adjudged no bar to a prosecution for gambling. In State v. Stone, 75 Iowa, 215, an acquittal of uttering and publishing as true a certain false and- forged note and chattel mortgage was held good as a plea in bar to a prosecution for obtaining money by false pretenses in the same transaction, for in each indictment the essential element of charge was the representation of the false instrument as genuine. In State v. Price, 127 Iowa, 301, an acquittal of the ci'ime of rape on a child under fifteen years of age was held to bar a prosecution for incest alleged to have been committed within the period covered by the charge of rape. See State v. Webber, 76 Iowa, 686. In State v. Caywood, 96 Iowa, 367, a judgment of acquittal in a larceny case was held not to be an adjudication of the truthfulness of the defendant's denial of guilt in the sense that it would bar a prosecution of perjury. In State v. Mikesell, 70 Iowa, 176, the accused had been acquitted of the crime of larceny from a house in the nighttime, and this was adjudged to bar a prosecution based on the same transaction for the crime of robbery on the ground that larceny is an essential element of both offenses. An acquittal of manslaughter is held to be a bar to a prosecution for murder, for that the allegation of unlawful killing of which there has been an acquittal is an essential element of both offenses and has been once adjudicated. Scott v. U. S., Morris (Iowa), 142. As affirming the same principle as applied to other crimes, see State v. Gleason, 56 Iowa, 203, and State v. Murray, 55 Iowa, 530. In State v. Foster, 33 Iowa, 525, a conviction of assault and battery was held not to bar a prosecution for assault with intent to commit a great bodily injury. It will be observed upon examining these and other authorities that until the case at bar no one had ever thought of interposing an acquittal of an offense alleging no act or omission of the accused constituting the crime in the indictment as a bar to the prosecution of the latter, and no case can be found in the books lending support to such a doctrine. It is unsound. All the decisions are the other way. The ruling on the demurrer was correct.\\nV. Appellant also contends that he has been denied the equal protection of the law. This, as we understand the brief, is based on the assumption that the judges before whom he was tried were prejudiced. If so, . . , ,. . , , , , the proposition has been disposed oi by what ^ x A d . bas already been said. In tbe course of bis brief, the suggestion also is made that reliance is placed on other errors we are expected to discover in going through the transcript of evidence on file. Section 5462 of the Code does require the Supreme Court to \\\"examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties and render such judgment on the record as the law demands.\\\" The record meant is that upon which the cause is submitted. This may be on transcript of all papers in the case on file save those returned by a committing magistrate and all entries in the record book. Section 5450, Code. This does not include the evidence. Harriman v. State, 2 G. Greene, 271. See State v. McGlasson, 86 Iowa, 47. Or the appeal may be presented, as appellant elected to submit this, on printed abstracts and arguments as provided by the rules of this court. Section 5461, Code. In the latter event, the abstracts constitute the record referred to and are presumed to contain everything essential to the determination of all points raised in argument. Questions not raised in the printed argument are deemed to have been waived. Because of appellant's reliance on a different construction of these statutes, however, we have examined the transcript of evidence with care and discover no error in any ruling adverse to defendant. \\u2014 Affirmed.\"}"

iowa/2168312.json

@@ -0,0 +1 @@
+"{\"id\": \"2168312\", \"name\": \"Rosala M. Doyle, Plaintiff, v. Mamie Emerson and C. P. Emerson, Defendants\", \"name_abbreviation\": \"Doyle v. Emerson\", \"decision_date\": \"1910-01-11\", \"docket_number\": \"\", \"first_page\": \"358\", \"last_page\": \"362\", \"citations\": \"145 Iowa 358\", \"volume\": \"145\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:12:08.733228+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rosala M. Doyle, Plaintiff, v. Mamie Emerson and C. P. Emerson, Defendants.\", \"head_matter\": \"Rosala M. Doyle, Plaintiff, v. Mamie Emerson and C. P. Emerson, Defendants.\\nI Conveyances: covenants against incumbrance:'breach: pleading and proof. In this action for breach of covenant against incumbrances it was alleged in the answer that the grantee accepted the deed with knowledge of the incumbrance and had assumed the same; but as the agreement to assume rested wholly in parol evidence thereof was inadmissible in the absence of a plea of mistake and a prayer for reformation of the deed.\\n2 Same: knowledge of incumbrance. Knowledge of an incumbrance by the grantee is not a defense to an action for breach of Warranty against incumbrances.\\n3 Covenants against incumbrance: breach: redemption from tax sale. In this action the husband bought outstanding tax sale certificates against land owned by his wife and held the same, in no manner treating the' purchase as a redemption. Thereafter both he and his wife conveyed the land with covenants against incumbrance, and it is held that the certificates were an incumbrance rendering their remote grantees liable on their covenants, and which they were justified in redeeming.\\nAppeal from Linn District Court. \\u2014 Hon. E. O. Ellison, Judge.\\nTuesday, January 11, 1910.\\nThis is an action for damages for an alleged breach of covenant of a warranty deed. There was a verdict and judgment for plaintiff, and defendants appeal. \\u2014\\nAffirmed.\\nThompson & Son, for appellants.\\nJos. Melcota and Carroll Bros., for appellee.\", \"word_count\": \"1390\", \"char_count\": \"8081\", \"text\": \"Evans, J.\\nThe defendants are wife and husband. On August 10, 1905, they conveyed by warranty deed certain lots in Cedar Eapids to John E. Doyle. The deed contained full covenants of warranty, including a warranty that the premises were free from incumbrance. In February, -1906, the grantee Doyle died testate, leaving his widow, the plaintiff herein, as his sole devisee. At the time of the conveyance in question, the premises conveyed were subject to a lien for paving taxes to become due in equal annual installments extending over a period of five' or six years. The plaintiff paid these paving taxes and brought this action to recover the amount thereof from the defendants on their covenants. The answer filed by the defendants averred that the grantee, Doyle, had \\\"assumed- and agreed to pay\\\" the paving tax in question, \\\"and that the deed was accepted by him with full knowledge of the tax.\\\" It was not averred whether the agreement was in writing' or not, nor was the answer attacked either by motion or demurrer. The case came to trial before the court and a jury.\\nI. Appellant's argument does not advise us of the specific errors complained of. The instructions of the court are not set forth in the abstract. There do not appear to have been any rulings on the evidence adverse to the appellants. The argument is devoted to the merits of the case as a ^ple. The evidence is undisputed as to the amount of the paving taxes against the property. It is also undisputed that they were a lien upon the property at the time of the execution of the deed, .and at the time of the execution of the contract preceding the deed. Appellants plead such preliminary contract and set it forth in their answer. But such contract expressly provides that the property shall be \\\"clear of incumbrance, with taxes for 1904 to be fully paid.\\\" This contract therefore avails the defendants nothing in support of their defense. The alleged agreement, if any, of Doyle to assume the payment of such paving taxes, rested wholly in parol. It was not available to the defendants in this action under the issues as made. If such was the real agreement between the parties in pursuance of which the deed was executed, then there was a mistake in the deed and contract. The defendants did .not plead such mistake. They could have pleaded the same as an equitable defense or cross-bill. Section 3566 of the Code. They could have asked a reformation of the deed by cross-bill, and would have been entitled to a trial of such issue before a trial of the issues at law. Byers v. Rodabaugh, 11 Iowa, 53. They could also have brought an independent action in equity to reform the deed if they had chosen to do so. They did nothing of this kind, doubtless for the sufficient reason that the evidence available to them was insufficient to establish their claim. The only evidence exhibited on the trial was a carbon copy of a letter purporting to have been written by O. P. Emerson to grantee, Doyle, on August 28, 1905. This letter would indicate the writer's understanding and claim at that time that Doyle was to pay the installments of paving tax falling due in the future. A letter from Doyle dated August 31st makes no reference to the subject. If this letter was the answer to Emerson's letter, an inference of acquiescence might be drawn. The value of this evidence, standing alone, is not very great, although it might have been very important as corroborating evidence. Doyle being dead, the Emersons were precluded from testifying. One Mather acted as agent and.attorney for both parties in the transaction. But he also died before the trial. Appellants' contention is left, therefore, without any support in the evidence.\\nIt is argued that the burden was upon the plaintiff to show misrepresentation and deceit on the part of .the grantors; but there is no merit whatever in this claim. The covenant in the deed against incumbrances was broken as soon as made, and it . _ ' was not material that the grantee had notice of such incumbrance when he purchased. Harwood v. Lee, 85 Iowa, 622; Yancey v. Tatlock, 93 Iowa, 386. Under the evidence in this record the plaintiff appellee was entitled to a directed verdict so far as these paving taxes were concerned. The court saw fit, however, to submit the question to the jury, and the appellants have no ground to complain on that score.\\nII. In 1899 the premises in question were sold at tax sale for the taxes of 1898 to one Heins. The tax purchaser, under his certificate, paid the taxes f\\u00b0r 1899, 1900 and 1901. The tax sale certificates were apparently outstanding against premiSes. The plaintiff after acquiring the premises, sold the same, and, in order to make a good title, made redemption at the auditor's office from such tax sale by paying in the amount necessary to redeem, as computed by the auditor. The amount so paid is included in her claim' in this action. As against this part of the claim, the defendant, C. P. Emerson, claims that in May, 1902, he purchased the tax certificates from Heins, and paid him therefor and that he has held them ever since. Such fact seems to be undisputed. Appellants' contention is that such purchase amounted to a redemption. We infer from the record that the title to the premises was in the defendant Mamie Emerson. Whether the mere purchase of the tax certificate by the husband would operate as a redemption where the legal title was in the wife, we will not now determine. It does not. appear that in this case Emerson treated his purchase as a. redemption, nor that he surrendered the purchased certificate either to his wife, or to the auditor, nor that he brought the matter to the attention of the auditor in any way. So far, there-fore, as third parties were- concerned, there was an outstanding lien apparently valid against the premises which they could not ignore.. That the plaintiff discharged such lien in good faith without any knowledge of the ownership of the certificate by Emerson is not put in question. It seems to us, therefore, that the defendants are in no position to complain as against the plaintiff. If they hold the certificates by purchase, they are undoubtedly entitled to receive the redemption money from the hands of the auditor. If there is any reason why such a course will not fully protect the defendants in that regard, it does not appear in this record. Not only do we find no error in the record, but we see no way whereby a different result could have been properly reached upon the evidence introduced, \\u2022 and upon the issues as made.\\nThe judgment below must therefore be affirmed.\"}"

iowa/2175919.json

@@ -0,0 +1 @@
+"{\"id\": \"2175919\", \"name\": \"Terrance Doyle, Appellee, v. Anna C. Duckworth et al., Appellants\", \"name_abbreviation\": \"Doyle v. Duckworth\", \"decision_date\": \"1910-12-17\", \"docket_number\": \"\", \"first_page\": \"623\", \"last_page\": \"634\", \"citations\": \"149 Iowa 623\", \"volume\": \"149\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:01:33.723897+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Terrance Doyle, Appellee, v. Anna C. Duckworth et al., Appellants.\", \"head_matter\": \"Terrance Doyle, Appellee, v. Anna C. Duckworth et al., Appellants.\\nl Equitable actions: reference: certificate of referee. Under the statute providing that in equitable actions where issues of fact are joined all of the evidence shall be taken down in writing or by deposition and shall be certified by the judge for the purpose of a retrial, a referee trying the case must certify to the evidence offered before him for the purpose of facilitating a review of his findings; and his certificate .must be as definite and certain as that required to be made by the trial judge, and must cover and include all the evidence offered before him.\\n2 Same: certificate of trial judge. Although the referee\\u2019s certificate of the evidence offered before him is sufficient, still when an appeal to the Supreme Court is taken it is from the order and judgment of the trial court and not from the conclusions ,of the referee, so that it is necessary for the trial judge to certify to the evidence offered and introduced in the district court in order to identify the evidence upon which the court acted, and to make it of record when filed for the purpose of a trial anew under the statute.\\nIn this action neither the certificate of the trial judge nor the decree entered, if treated as a certificate, are sufficient to meet the requirements of the statute.\\n3 Same: certification of evidence: waiver of defect: review on appeal. By filing an amended abstract, as in this case, before moving to strike the appellant\\u2019s abstract because of an insufficient certificate of-the evidence to authorize a trial de novo, the appellee did not waive the defect in the certificate, where he expressly alleged in his amended abstract the lack of such certificate. And where there was no proper certificate of the evidence to permit a trial de novo the appellate court must take the findings of fact as made by the referee and affirmed by the trial judge as true, and determine therefrom the correctness of his conclusions of law and of the final decree.\\n4 Partnership: advancements : interest. Ordinarily interest will not be allowed individual partners on advancements made by them to the partnership; but where they have contracted for the allowance of such interest their agreement will be enforced.\\n5 Same: account stated. Statements by a partner to another will not be treated as an account stated.\\n-6 Same: dissolution: burden of proof. One partner alleging a settlement between them has the burden of proof on this issue in a suit for dissolution of the partnership.\\nAppeal from Pocahontas District Court. \\u2014 Hon. A. D. Bailie, Jtidge.\\nSaturday, December 17, 1910.\\nSuit in equity for a partnership accounting. Defendants denied the partnership and pleaded other matters not necessary to be noticed at this time. The trial court rendered judgment for plaintiff on a referee\\u2019s report, and defendants appeal\\nAffirmed.\\nC. G. Macy, B. J. Price, and Lane & Waterman, for appellants.\\nKelleher & O\\u2019Connor and Ralston & Shaw, for appellee.\", \"word_count\": \"3529\", \"char_count\": \"20171\", \"text\": \"Deemer, C. J.\\nThe case was originally tried to a referee who made a report to the district court with his conclusions of fact and of law. Upon the coming in of the report each party filed objections thereto and motion to set aside and modify the same and the cause was submitted to the trial court upon these motions, resulting in the confirmation of the report and a decree for the plaintiff. From these rulings and from the decree, defendants appeal.\\nThe referee made the following certificate to his report and to the testimony taken before him: \\\"A large part of the evidence was introduced by way of depositions which have been returned into court; and the balarLce the testimony (being that taken 44^ an\\u00bf 5 th, 1908) was reduced to writing and filed herein; so that there is no part of the testimony which had not been fully extended into longhand and transcripts thereof filed herein; and the whole of the testimony is now before the court. These depositions and extended transcripts are now made a part hereof; and in a broad sense this referee reports the facts to be in accordance with the showings made by such testimony and the exhibits returned with it. These depositions are those of the plaintiff, his brother, Dr. E. l\\\\f. Doyle, Cromwell Gf. Macey, and Nelson A. Farr and. The testimony taken before the referee consists of that given by the witnesses Henry C. Doyle Leonard Doyle, II. J. Murray, O. E. Christenson, P. M. Beers, and W. C. Ralston. The exhibits referred to and introduced as a part of the testimony of these witnesses are also a part of the evidence, and all of these are now made a part of this report. It must be a source of satisfaction to the parties herein\\u2014 as it is also to this referee \\u2014 that the evidence is thus placed before the court in full and that whatever mistakes this referee may make in reporting the facts or the law may easily be corrected and reviewed upon the final hearing of this report.\\\" This so-called certificate is found in the final report of the referee.\\nThe only timely certificate made by the judge, if there be any at all, is found in the decree which was signed by the trial court from which we extract the following: \\\"Pursuant to said stipulation and order duly entered of record at the May term, 1909, of the district court of Pocahontas County, Iowa, this cause was duly heard upon the report of F. C. Gilchrist, referee, and the exceptions and objections of both parties thereto. . . . And the cause was thereupon taken under advisement to be decided as aforesaid, . . . and the court having inspected and examined the proofs of service files and records herein, and the report of said referee, together with the objections and exceptions thereto, and having heard, read, and examined the evidence and testimony offered and received upon the part of both the plaintiff and defendants, and having considered the arguments, etc. . . .\\\"\\nAppellee says that this is not a compliance with section 3652 of the Code, as recently amended (Acts 31st General Assembly, chapter 155), reading: \\\"In equitable actions wherein issues of fact are joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either party may, at pleasure, take his testimony, or any part thereof by deposition. All the evidence so taken shall be certified by the judge at any time within six months after the entry of a final decree, and the evidence and certificate be made a part of the record, and go on appeal to the Supreme Court, which shall try the cause anew. But this section shall be so construed as to include the evidence taken in shorthand, when the reporter's notes of such evidence have been certified to by the judge and reporter within the time herein provided.\\\" Code Supp. 1907, section 3652. This section has been construed in many cases, from some of which we shall quote.\\nIn Smith v. Harlan, 49 Iowa, 101-102, it is said: \\\"We are asked to review the findings of fact. To this the appellees object, upon the ground that they were not reviewable in the court below. .\\u2022 . . Trials before a referee should have as much certainty in their methods are trials in court. As the findings of fact by the referee have the effect of a special verdict, there should be facilities for reviewing them equal to the facilities provided for reviewing a special verdict. The unsuccessful party, therefore, has a right to have all the evidence certified. If the referee omits to certify it, and the unsuccessful party desires a review upon the findings of fact, it appears to us that he is entitled upon a proper motion to have the report set aside and recommitted, with an order to report with the findings all the evidence duly certified.\\\"\\nThis certificate must be as particular and certain as that required of certificates to be made by the trial judge. We doubt if the referee made any such certificate. It does not appear that the referee certified to all the evidence offered. This is the requirement of the section as construed in Second Nat'l Bank v. Ash, 85 Iowa, 74; Baldwin v. Ryder, 85 Iowa, 251; Taylor v. Keir, 54 Iowa, 645; Polk v. Sturgeon, 71 Iowa, 395; Cheney v. McColloch, 104 Iowa, 249; Greenlee v. Ins. Co., 103 Iowa, 484; Dwyer v. Rock, 115 Iowa, 722; Spinney v. Halliday, 115 Iowa, 420.\\nBut conceding, for the purposes of the case, that the referee's certificate was sufficient, it was also necessary for the trial judge to certify the same. On this point we said, in Porter v. Everett, 66 Iowa, 278: \\\"It is not claimed by appellant that the evidence has been so certified but he relies upon a certificate to the evidence made by the referee and returned with his report. It appears to us that the section of the Code referred to is a positive and peremptory requirement and that the certificate must be made by the judge. Of course, .the evidence, as returned by the referee, must be identified by him by some statement or certificate, to enable the district court to know upon what evidence his finding of facts and conclusions of law were based.\\\"\\nAnd again, in Young v. Scoville, 99 Iowa, 177, we announced the same rule by saying: \\\"When an equity case is sent to a referee there are, in' effect, two trials, one before the referee and the other before the district court; and an appeal, when taken, is not directly from the decision of the referee, but from the decision of the district court. In order to try the questions presented to it anew, we must have all the evidence offered or introduced. before the district court, properly certified by the judge who tried the case. The referee can not make this certificate, for he does not know what transpired before the judge who finally decides the controversy. His certificate relates only to that which was offered before him, and is for no other purpose than to identify the evidence upon which he acted. We have held that the referee is not the court (Hobart v. Hobart, 45 Iowa, 501; Belzor v. Logan, 32 Iowa, 322) ; that the power of the court in acting upon the report of a referee is not merely appellate (Edwards v. Cottrell, 43 Iowa, 194; Hodgin v. Toler, 70 Iowa, 21); and that, to secure a review of the findings and conclusions of a referee in a law action, exceptions must be taken to the ridings of the district court thereon; and that exceptions taken before the referee are not sufficient (Roberts v. Cass, 27 Iowa, 225; Bolton v. Kitsman, 80 Iowa, 343; Michael v. Longman, 42 Iowa, 484). Such holdings clearly indicate that where there is a reference there are, in effect, two trials, and that when an appeal is taken, it is from the order and judgment of the trial court, and not from the conclusions of the referee. Such being the case, it is clear that a certificate from the trial judge is necessary to identify the evidence upon which he acted. See Teague v. Fortsch, 98 Iowa, 92.\\\"\\nTreating the recital in the decree of the trial judge as a certificate, it will be observed that it does not meet the statute and decisions before referred to in many particulars. For example, it says that he \\\"examined the files and records and the report of the referee, and read and examined the evidence and testimony offered and received upon the part of both plaintiff and defendants.\\\" What this testimony is no one knows; at least this statement offers no light upon the question. Moreover, under our holdings, a certificate to the testimony offered and received or offered and introduced is not sufficient. .See cases hither.to cited. Moreover, there is no statement whatever as to what the testimony was which was offered and received upon the part of the parties. There is absolutely nothing in this certificate from which the testimony can be identified.\\nIn Bauernfiend v. Jonas, 104 Iowa, 56, we said: \\\"That, with other cases cited, fixes the rule that it is the office of the certificate of the judge to identify the evidence, and make it of record when filed, while it is the office of the certificate of the clerk to identify and authenticate the record. As we have said, the complaint here is that the evidence is not in the record, and, if not, it is not the province of the clerk to certify it to this court. There seems to be no escape from the conclusion that the evidence is not here for consideration.\\\"\\nIn Runge v. Hahn, 75 Iowa, 733, we said: \\\"The statute (Code, section 2742, as amended by chapter 35, Acts 19th General Assembly) requires the trial judge in eqxiitable actions to certify all the evidence offered and introduced upon the trial. The object of this provision is to secure such identification of the trial that no question can fairly arise upon appeal as to what the evidence is. The certificate of the judge, when it properly identifies the evidence, has the effect to make it part of the record. It is not essential, as was contended by counsel'for appellee, that it contain an express declaration or order making the evidence part of the record; but that result follows when it identifies the different items of evidence offered and introduced on the trial, and is signed in due time. And it can not, in the matter of identification, be supplemented by the certificate of the clerk. The office of the certificate of the clerk required by section 3184, since the enactment of chapter 35, Acts 18th General Assembly, is to identify and authenticate the record. Before that enactment, depositions and other papers used merely as evidence were not deemed part of the record, and could be identified by the clerk's certificate; but its effect clearly is to change that rule. Cross v. Burlington & S. W. Ry. Co., 58 Iowa, 63, arose before its enactment, and it is not now authority on the question. A recital in the certificate, that the cause was submitted upon packages of depositions filed upon dates, does not identify the evidence, and does not comply with the requirements of the statute. Bor sxich recital would apply to any depositions which may have been filed upon those dates, and leaves it to the clerk and the parties to determine what particular depositions were intended. But the confusion and uncertainty which was liable to arise under that practice is the very evil which the Legislature intended by the enactment to correct. The certificate then should, by setting out the name of the witness, or the name of the officer before whom the depositions were taken, and the date when taken, or other explicit recital, identify with certainty the items of evidence referred to.\\\"\\nThe certificate in that case said: \\\"And now, on this day, to wit, . . . this cause came, on for hearing. . . . The cause is tried and submitted to the court on the following evidence, and none other, to wit: Plaintiff offers (1) package of depositions filed June 23, 1885; (2) package of depositions filed December 3, 1885; (3) package of depositions filed January 6, 1886. Plaintiff rests. Whereupon the defendant offered the following evidence, to wit: Package of deposition filed December 26, 1885. Defendant rests. I, W. B. Lewis, before whom the above-entitled cause was tried, do hereby certify that the above and foregoing schedule correctly specifies and refers to all the evidence offered and all the evidence received on the trial of the cause.\\\" This certificate was made more specific than the one now before us, but was held insufficient. See, also, Burnett v. Loughridge, 87 Iowa, 324; Bunyan v. Loftus, 90 Iowa, 122; Teague v. Fortsch, 98 Iowa, 92.\\nAppellants say, however, that before moving to strike appellee filed an amended abstract, and that this amounted to a waiver of the question now presented, and they rely upon Sarvis v. Caster, 116 Iowa, 707, and Conners v. Ry. Co., 74 Iowa, 383. The difficulty with this proposition is that in each amendment the record was challenged.\\nThe denial in the first amended abstract read: \\\"The appellee denies that the abstract filed in this cause by the appellant is a full, complete, and correct abstract of the evidence taken in the court below, denies that said abstract shows all of the evidence, objections, and ruling thereon, and denies that it is a complete record of all. of the proceedings had in this canse.\\\"\\nIn the second amendment the averment is: \\\"Appellee expressly denies that the testimony which was taken before the referee is 'of record' in this cause, in accordance with the provisions of the statutes of the state of Iowa. And appellee states and shows that the testimony and evidence which was taken, heard, and offered before the referee was in no manner certified by the referee, save as reference thereto was made in the report of the referee, set out in the abstract, pages 161-1Y3. That no certificate of any kind was made to the said evidence or any part thereof by the court or judge. Appellee expressly and specifically denies that there was a certificate of any kind made or signed by the court or by any judge thereof, within the time allowed for an appeal in said cause, or at any time, and no such certificate was ever made a part of the record or is any part of the record, and no such certificate was ever filed or entered of record in said cause, or executed by any court or judge, and appellee expressly and specifically denies that the said evidence and testimony is of record in said cause or has been preserved as required by law.\\\"\\nThe Conners case, supra, was practically, if not expressly, overruled in Hershey v. Nyenhuis, 103 Iowa, 195, and in the Sa/rvis case it does not appear that any denial was filed.\\nSurely there was no waiver here. In this state of the record there is nothing to be done save to take the findings- of fact of the referee as correct and determine therefrom whether. or not his conclusions of law and the final decree are justifiable.\\nThe only point which we can consider, in view of the record, is an allowance made to plaintiff of interest on certain money furnished by him to the partnership. It was agreed that each party should have interest on money advanced by him or that he should have interest on the excess of capital furnished and for the purposes of this appeal it is immaterial which was in fact the agreement. The trial court allowed six percent interest to each, and on Duck-worth's advancements compounded the interest, so that, no matter what the agreement, defendants got no more than interest on the excess of his investment. Of course, neither party to a partnership is entitled to interest on his advancements, profits being considered a return for the use of the money; but the parties may stipulate, as they did here, for the allowance of interest and their agreement will be respected and enforced. If this be not the true rule, then defendants have had the advantage of interest upon the excess investment, and the decree is more favorable to them than they were entitled to.\\nIf it be any satisfaction to the parties we may add that we have gone over the record and find nothing which would justify us in interfering with the decree of the trial court. There was no such account stated as. wouici Dincl the plaintiff. The parties were partners, and a statement made by one to the other can not be treated as an account stated. Gillett v. Chavez, 12 N. M. 353 (78 Pac. 73); Watts v. Adler, 130 N. Y. 646 (29 N. E. 131); Hughes v. Smithers, 163 N. Y. 553 (57 N. E. 1112); Id., 23 App. Div. 590 (49 N. Y. Supp. 115); Martin v. Smith (N. J.) 13 Atl. 398; Donahue v. McCosh, 70 Iowa, 733.\\nDefendants failed to establish the settlement pleaded by them, upon which issue they had the burden of proof. See Hug hes v. Smithers, supra, first reported in 23 App. Div. 590 (49 N. Y. Supp. 115). Plaintiff's contributions were properly treated as advancements made by him, although as *to some things testified to by plaintiff he was incompetent to testify, but such objection does not lie to all his testimony. Much of it did not relate to transactions with deceased.\\nWe are satisfied that both the referee and the trial court came as near to a correct adjustment of the accounts as is.possible under the circumstances, and the decree must be and it is affirmed.\"}"

iowa/2182177.json

@@ -0,0 +1 @@
+"{\"id\": \"2182177\", \"name\": \"Des Moines City Railway Company, Appellee, v. City of Des Moines, Appellant, et al.\", \"name_abbreviation\": \"Des Moines City Railway Co. v. City of Des Moines\", \"decision_date\": \"1911-05-06\", \"docket_number\": \"\", \"first_page\": \"18\", \"last_page\": \"37\", \"citations\": \"152 Iowa 18\", \"volume\": \"152\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:54:05.678633+00:00\", \"provenance\": \"CAP\", \"judges\": \"McClain, J., concurs in the dissent.\", \"parties\": \"Des Moines City Railway Company, Appellee, v. City of Des Moines, Appellant, et al.\", \"head_matter\": \"Des Moines City Railway Company, Appellee, v. City of Des Moines, Appellant, et al.\\nStreet railways: paving: statutes: ordinances: construction. In the construction of a statute all of its parts should be given effect if this can be consistently done; and in arriving at its in terpretation the history of legislaiton on the subject should be regarded.\\nCode, section 834, providing that street railway companies shall at their own expense pave between the rails of the track and one foot outside thereof, unless by ordinance or by virtue of the provisions of any ordinance under which the railway might have been constructed or maintained it may be required to pave other portions of the street, means that the company may be required to pave not less but more than the statute requires; and a city is not bound by an ordinance on the subject existing at the time of the enactment of said section, which is a valid exercise of legislative power, but may enact a new ordinance by virtue of that section fixing the portion of the street which the railway company may be required to pave, and if in force at the time of paving it wjill govern the railway company\\u2019s duty.\\nEvans and McClain, JJ., dissenting.\\n\\u2018Appeal from Polh District Court. \\u2014 Hon. W. H. McHenry, Judge.\\nSaturday, May 6, 1911.\\nAppeal by the city of Des Moines from an order of the district court reducing certain paving assessments imposed by its city council against the Des Mo'ines City Railway Company. The controversy presented for our consideration includes thirty-three appeals. The decisive question is the same in all, and they ar\\u00e9 submitted here by stipulation upon the same record. The city council imposed upon the railway company certain paving assessments. The amount in each case was fixed upon the theory that, the railway company was liable for the cost of the paving for a width of seven feet, viz., three and one-half feet on each side of the center line between its rails. The railroad company concedes its liability for such'paving for a width of five feet, which is the space between its rails. The trial court sustained the contention of the railway company and ordered a reduction of the assessments accordingly. From this order the defendant city has appealed. \\u2014 Reversed.\\nRobert 0. Brennan. and James M. Parsons, for appellant.\\nGuernsey, Parker .& Miller, for appellee.\", \"word_count\": \"6467\", \"char_count\": \"37062\", \"text\": \"Deemer, J.\\nThe solution of the question presented depends upon the construction which shall be placd upon section 834 of the Code, which, so far as material, reads as follows:\\nAll railway and street railway companies shall be required to make, reconstruct and repair all paving, graveling or macadamizing between the rails of their tracks, and one foot outside thereof, at their own expense, unless by ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city under which said railway or street railway may have been constructed or may have been maintained, it may be bound to pave, macadamize or gravel other portions of said street, and in that case said railway or street railway shall make, reconstruct and repair the paving, graveling or macadamizing of that part of the street specified by such ordinance; and such improvement, or -the reconstruction or repair thereof, shall be of the material and character ordered.by said city, and shall be done at the same time the remainder of said improvement is made,' reconstructed or repaired. . . . They shall keep the paving, graveling or macadamizing between said rails, and one foot outside thereof, or such other part as they are liable to construct or maintain, up to grade and in good repair, using for such purpose the same material as used for the original paving, graveling or macadamizing, or such other material as the council may order. . .\\nThis statute as it now reads was framed by the Code Commission as a codification of the law theretofore existing as found in McClain's Annotated Code of Iowa, 1888, sections 725 and 829, and the Acts of the Twenty-Third General Assembly, chapter 9, section 1, and of the Twenty-Fifth General Assembly, chapter 7, section 10. On the general subject of street improvements, etc., and of the laws then existing with .reference thereto, the Code Commission said:\\nThe present law as to construction of street improvements and sewers is in the greatest confusion. The attempt is made in this chapter to reduce the whole legislation on the subject to a system, preserving the beneficial features of all the statutes (including in instances provisions found in statutes which relate at present only to cities under special charter) and to make the procedure as to the street improvements and sewers harmonize as far as practicable. The powers are made uniform in all cities of five thousand. . . . McClain's Code, sections 817, 853,, are omitted as covered by these general provisions.\\nIn the general report of that Commission we find the following expression as to its purposes, aims, and accomplishments :\\nIn the exercise of the duty of rewriting the law and improving its phraseology, the commission has made many verbal changes, but has done so with great care in order that the meaning of the statutes should not be thereby materially changed. The language of the act as above quoted indicates, however, that some alterations in the law for the purpose of securing completeness, and to improve, systemize, and harmonize it and make it clear and intelligible, were contemplated as within the scope of the duties of the Commission, and it has therefore recommended some changes, having in view, however, the unification and perfection of the system of the written law as it now is, rather than the enlargement of it or its change in material matters. . . . Wherever the Code as reported does not exactly follow the present statutory language the new words are underscored,or if a whole section has been rewritten it is all underscored. The underscoring therefore does not necessarily indicate any new law, but if provisions are new, they are necessarily underscored. . It must be distinctly understood that a change of language does not necessarily indicate any intention to change the meaning of the law. The Commission is authorized to rewrite the sections of the Code and statutes for the purpose of improving the expression of the law, and it has faithfully done so, omitting much that is superfluous and improving the statement and arrangement of the written law where practicable. In some chapters the transposition of words, sentences and sections has been so general that substantially entire chapters are underscored without being in any sense new, for instance in the chapters relating to cities and towns, state institutions, and the public schools.\\nWith this in mind, then, it becomes important to go to the law as it existed at the time the act under consideration was framed. The Twentieth General Assembly passed an act known as chapter 20, containing a section reading in part as follows:\\nAll railway companies and street railway companies in cities of the first class as provided in section one of this act, shall be required to pave, or repave between rails and one foot outside of their rails, at their own expense and cost. Whenever any street, highway, avenue or alley shall be ordered paved or repaved by the council of any such city, such paving or repaving between and outside the rails shall be done at the same time and shall be of the same material and character as the paving or repaving of the street, highway, avenue or alley upon which said railway track is located, or of \\u00a7uch other material as said council may order, and when said paving or repaving is done said companies shall lay in the best approved manner the strap or flat rail, such railway companies shall keep that portion of the streets, highways, avenues or alleys between and one foot outside of their rails, up to grade and in good repair, using for such purpose the same material with which the street, highway, avenue or alley is paved upon which the track is laid, or such other material as said council may order.\\nIt may be that this act did not have reference to the city of Des Moines; but it is part of the legislative history of the state, and from that standpoint should be considered.\\nThe Twenty-Second General Assembly passed an act which, among other things,, contained the following provision :\\nCities of the first class . . . shall have the further -and additional powers conferred by this act, . . . to wit, they shall have power to compel street railway companies, whenever any street is ordered paved, to pave and maintain in width three and one-half feet each way commencing at the center of the space betw\\u00e9en the rails, and in case of failure to do so to provide by ordinance for such paving and maintenance, and for the manner of assessing against such companies the cost thereof . . . Acts Twenty-Second General Assembly, chapter 16.\\nBy the acts of the Twebty-Bifth General Assembly, chapter 7, it was provided, in section 10 thereof, that:\\nWhenever any railroad or street railroad may have been constructed, and shall remain upon any street which the council may direct to be paved, at the time when such direction shall be given, and when the owner of such railroad or street railway may be bound to pave any portion of said street by law or ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city,' under which said railway or street railway may have been constructed or may be maintained, and if the owner shall fail or refuse to comply with the order of the council to do such paving, then the portion of the cost of paving such street assessable upon such railroad or street railway shall be ascertained, and shall be assessed against such street railway.\\nSuch was the condition of the written law of the state when the Code Commission came to rewrite the same. These acts passed the scrutiny of the courts, and it was held that they were constitutional and might be made to apply to street railway companies whose franchises were granted before the law took effect. See Sioux City R. R. Co. v. Sioux City, 78 Iowa, 367, and same case, 78 Iowa, 742.\\nAgain in Marshalltown Light, P. & R. Co. v. Marshalltown, 127 Iowa, 637, which was decided long after section 834 of the Code was adopted, it was held that the provisions of a franchise ordinance exempting a street railway company or its assigns from any duty to pave, macadamize, or improve a street was not such a contract as could not be affected by subsequent legislation imposing a duty upon such company to pave between and outside the rails of its tracks. That decision quotes section 834 of the Code and holds that the city may require paving as provided in said section under a resolution passed after section 834 went into effect. It does not appear in that case when, if ever, an ordinance was passed requiring the street railway to bear its share of the expense of paving. It does appear, however, that the paving was authorized and provided for in the year 1902, which was long after the adoption of section 834 as it now appears in the Code. The franchise ordinance in that case expressly provided that the street railway company should not in any case be required to pave or macadamize any part of the street over which its railway had been constructed.\\nThe result of the whole matter, then, is that, unless section 834 as it now appears changed the law theretofore existing, the trial court was in error in holding that the street railway company was not required to pave more than five feet in width of the street. Going now directly to this section, it will be observed that the primary duty of the street railway company is to pave between the rails of its track and one foot outside thereof. This it must do, unless, by ordinance of the city or in virtue of the provisions or conditions of the ordinance under which the street railway was constructed or is being maintained, it may be bound to pave other portions of said street. In that event the railway company shall pave that part of the street specified by such ordinance. They are also required to keep the paving between the rails and one foot outside thereof or such other parts as they are liable to construct or maintain in good repair, etc.\\nIt is a cardinal rule for the construction of statutes that all parts thereof shall be given force and effect if \\u2022this can consistently be done.\\nLegislative history should always be regarded in arriving at a proper interpretation of any given statute. It is clear that down to the time of the adoption of section 834 it was competent for the city council to require the street railway company to make all paving between the rails of their track and one foot outside thereof at the time when the pavement was ordered notwithstanding the provisions of the franchise ordinance. So that, had the law as it then existed not been changed, there would be no doubt of the validity of the order which is challenged in this ease. At the time when the order in this particular case was made, there was, as we understand it, an ordinance requiring the street railway company to pave that part of the street then occupied by it not exceeding three and one-half feet on each side of the center line between the rails. This ordinance, it is true, was passed after the Code of 1891 went into effect, and it is contended that such ordinance is invalid because unauthorized by section 834 of the Code. Indeed, the broad contention is made that, as the original franchise ordinance enacted in 1866 required the railway to pave the space between its rails, this established its duty, and under the terms of the statute now under consideration relieved it from paving more than the amount required by the franchise ordinance, although the city thereafter passed an ordinance valid under the statutes then in existence, requiring the street railway company to pave a greater portion of the street. We can not believe that this is a proper construction of the statute. Certainly it was not the law prior to the adoption thereof. To arrive at such a conclusion it is necessary to read out of the statute the words \\\"unless by ordinance of the city,\\\" for, if the franchise ordinance specifies what portion of the street the street railway must pave, that ends the matter, under the construction which counsel for the railway company would have us put upon the law, no matter if it appears that thereafter in virtue of a valid law there was another ordi nance requiring tbe railway company to pave more than it was required to do under the franchise ordinance. It seems to us that, to arrive at a proper reading of this statute, we should take into account the law as it then existed and so construe it as to give effect to all its terms. This may easily be done by reference to the ordinance in existence when the paving is ordered. If there be such an one which differs from the franchise ordinance, it of necessity supersedes the original franchise ordinance, and is the one under which, the street railway is then being maintained. If there was no other ordinance than the franchise ordinance, and this franchise ordinance fixed the amount to be paved, that would be controlling. Remembering that the council had power by ordinance to change the original franchise ordinance in this respect, it follows that the franchise ordinance is to that extent superseded and is not the one under which the street railway is being maintained. It may be said that this reads something into the statute which does not there appear; but we think not. The effect of it is to say that we look to the ordinance of the city in . force when the paving is ordered, or, if there be none, to the provisions of the ordinance under which the railway may have been constructed or is then being maintained. The obligation to pave must be found in one or the other, and that obligation is the one in existence when the pavement is ordered. If the franchise ordinance be superseded by another, then the railway company is being maintained under that ordinance and not under its original grant.\\nClaim is made that, to determine what ordinance is to govern, we must look to the conditions as they existed when section 834 of the Code was adopted; that is to say, that the date of the adoption of this section fixed the conditions, and that thereafter no ordinance could be passed with reference to the subject of the width of a street that a, street railway may be required to maintain. If this be the law, it is because of the incorporation of section 834 into the Code of 1897. We do not think that it was the intent of the Legislature to tie the hands of city councils by the adoption of this statute. And our conclusion is bottomed primarily upon the notion that we should look to the conditions existing when the improvement is ordered, and not the ordinance in force when this act went into effect. It is entirely too narrow a construction to say that the law has reference to an ordinance in existence when section 834 was passed. This would tie the hands of the council and limit its power to act in the future with reference to the subject matter. Surely this was not intended. It was not the law before the adoption of section 834, and there is nothing in the terms of the act which indicates that it had reference only to ordinances in existence when the section was passed. It does not say ordinance then in existence; and it manifestly has reference to ordinances at any time legally passed with reference to the subject. Moreover, the writer of this opinion is inclined to believe that it may properly be interpreted to mean that the street railway company must pave between the rails of their tracks and one foot outside thereof, unless there be something in the ordinance of the city, or, if there be none, in the franchise ordinance requiring them to pave more.\\nThe words used in this connection are \\\"unless it may be bound to pave other portions of said street.\\\" The words \\\"other portions of said street,\\\" it seems to me, should be construed to mean, not something less which would be included in what was greater, but something more than the statute requires. This may perhaps be a little forced, but it is confirmed somewhat by the provision as to how much the railway company is required to keep in repair. It says \\\"the part between the rails and one foot outside thereof or such other part (which means to my mind some different part) as they are liable to construct or maintain.\\\" My opinion in this respect is not concurred in by all the other members of the court; but I think it is entitled to consideration. Certainly this is true as applied to the franchise ordinance.\\nLooking to the legislative history of this act; to the report of the Code Commission, to the language used, and remembering the fundamental canon of construction that all parts of it should be permitted to stand and be given effect, we are of opinion that the ordinance, passed by the city after the adoption of section 834 of the Code, requiring the company to be at the expense of the paving between the rails and one foot outside thereof, was a valid exercise of power, and that the city is not bound by conditions as they existed when section 834 went into effect, nor is it bound by the terms of the original franchise ordinance. Prior to the adoption of section 834, the city had the right to change the terms of the franchise ordinance with reference to the subject of paving, an,d we do not think that section 834 deprived it of the power to make changes thereafter. If such was the intent, it was most carefully concealed, and we feel sure in affirming that the Code Commission had no intent to change the law in the manner suggested by counsel for the street railway company. Certainly there was no thought on the part of any one that by the adoption of section 834 the duty of the street railway to pave was fixed by the terms of its original franchise ordinance, if perchance it should be found that in that ordinance the subject of paving was covered.\\nWe do not believe that it was the intent to fix conditions with reference to any arbitrary date. The thought was to require the paving between the rails and one foot outside thereof unless the city having plenary power over the matter should require some other width, and as the writer believes some greater or other width.\\nFrom this it follows that the decree rendered by the trial court is wrong, and that it should be reversed.\"}"

iowa/2193843.json

@@ -0,0 +1 @@
+"{\"id\": \"2193843\", \"name\": \"Archibald Black, Appellee, v. H. C. Miller, Administrator of the Estate of George Black, Deceased, Appellant\", \"name_abbreviation\": \"Black v. Miller\", \"decision_date\": \"1912-11-20\", \"docket_number\": \"\", \"first_page\": \"293\", \"last_page\": \"306\", \"citations\": \"158 Iowa 293\", \"volume\": \"158\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:13:43.844890+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Archibald Black, Appellee, v. H. C. Miller, Administrator of the Estate of George Black, Deceased, Appellant.\", \"head_matter\": \"Archibald Black, Appellee, v. H. C. Miller, Administrator of the Estate of George Black, Deceased, Appellant.\\n1 .Estates of decedents: claims: withdrawal: refiling. After filing . his claim against the estate consisting of several items, claimant served notice of the claim upon the administrator, stating therein that all but two of the items were for the present withdrawn and would be withheld until the court passed upon his petition in another action, in which he claimed a conveyance of certain land in consideration of services covered by the withdrawn items, and that the other items would come on for trial. Held, that the withdrawn items were not dismissed from the claim as filed, but even if they were, the estate remaining unsettled, claimant was entitled under the circumstances to refile the same by an amendment after disposition of the other action.\\n2 Same: former adjudication: estoppel. In a former action by decedent\\u2019s children to partition certain real property, claimant pleaded an oral agreement with decedent to convey to him certain of the land in consideration for the care and support of decedent during his natural life. His claim as made in that action was dismissed as being without support in the evidence, and without any reservation whatever of his rights in the premises. Held, that the deeree was an adjudication barring his right to recover on a claim against decendent\\u2019s estate for the reasonable value of the same service.\\n3 Specific performance: discretion. Specific performance of a contract is not a remedy which a litigant may demand as a right, but it rests in the sound discretion of the court; where, however, the evidence is sufficient and there are no equitable considerations in . the way such decrees are entered as a matter of course.\\n4 Negotiable instruments: genuineness of signature: proof. Where the original note upon which an action is founded, or a copy thereof, is attached to the petition, the genuineness of the signature to the note will be presumed, unless denied under oath by the person whose signature it purports to be; but where neither the original nor a copy was attached to a claim filed against the estate, and all items of'the claim were denied, the burden was upon claimant to establish the genuineness' of the signature to the note before its admission in evidence.\\n5 Instructions: preservation of exceptions. The statute authorizes the reporter to note in his report of the trial, in shorthand or in writing, the fact that the jury is instructed and all exceptions and objections to the instructions given by the court on its own motion, and this report when properly certified is sufficient evidence of the taking ' of, exceptions to the instructions; but there is no authorized preservation of the record of exceptions by the mere certificates of the judge and reporter that they were taken.\\n6 Instructions. The trial judge in his instructions should clearly state the issues rather than copy the pleadings as a part thereof; and he should not assume the genuineness of decedent\\u2019s signature to a note sought to be proven against his estate.\\n7 Use and occupation: prima facie case. To establish a claim for the use and occupation of decedent\\u2019s land, it is not necessary for the administrator to show that there was a mutual understanding that decedent was to ree\\u00e9ive pay for the use of the land. Proof that the occupant entered upon the land, used and occupied it for his own benefit, with the assent of decedent, implies a promise to pay the reasonable value of the use, in the absence-of proof that the use had been paid for or that it was gratuitous; and such defense must be pleaded to be available.\\n8 Same. The rule with respect to the rendition of services by a relative living in the family has no application to a claim against, an occupant of decedent\\u2019s land for its use while decedent was living with and being supported by the occupant.\\nAppeal from, Jefferson District Court. \\u2014 Hon. M. A. Roberts, Judge.\\nWednesday, November 20, 1912.\\nThe claim of plaintiff was allowed against the estate of George Black, deceased, in the sum of $2,500. The administrator appeals.\\nReversed.\\nCrail & Crail, for appellant.\\nLeggett & McKemey, for appellee.\", \"word_count\": \"4966\", \"char_count\": \"28293\", \"text\": \"Ladd, J.\\nThe plaintiff filed his claim against the estate of George Black, deceased, March 10, 1908, consisting of sev enteen items. The first fourteen items, except the twelfth, related to purchases for or improvements on land. Item fifteen related to the amount claimed to be due on a note, and the twelfth item was for money borrowed. The sixteenth item was for services in caring for stock and work on the farm,. and the seventeenth was for \\\"board, washing, and mending twenty years, 1,040 weeks, at $1.50 per week, $1,560.\\\"\\nIn September, 1908, term of the district court the plaintiff caused to be served on the administrator notice of the filing of the claim, and \\\"that the items of s\\u00e1id claim except Nos. twelve and fifteen are for the present withdrawn, ' ' and that the claim in respect to the said items would come on for hearing on the 5th day of October, 1908, and \\\"that the remaining items of said claim are withheld until the court passes upon the petition of said Archibald Black and wife to quiet his title\\\" to sixty acres of land described, which lands George Black agreed to convey to said Archibald Black in consideration of the services covered by said remaining items of the claim. No trial was had at the time stated, and on November 12, 1910, plaintiff filed what is designated as an \\\" amendment to claim,\\\" alleging therein that he amended \\\"his claim heretofore filed against this estate by changing the seventeenth item of the claim so it will read as follows: First.\\u00a3 (17). Boarding, washing, and mending, twenty years, 1,040 weeks, at $3 per week, $3,120, total amount of claim, $5,170/ and files again the claim as amended. Second. He shows that this claim was not filed heretofore in the present form,' because of the pendency of certain litigation in this court in reference to the partition of the real estate of said George Black, in which this claimant presented the claim to sixty acres of land under the verbal agreement of the deceased; that claimant should have the same in consideration of the services hereinbefore stated; that said cause was pending in the' courts of this state until the - day of -, 1910, when the same was determined by the court's finding against the claim of this claimant of said land, on the ground' that same was not sus tained by sufficient evidence to comply with tbe rules of tbe court in such cases.\\\" The defendant answered denying each item of the claim and\\\"that the estate was in any wise indebted to claimant, and pleaded that the claim was not filed within a year after the appointment of defendant as administrator of the estate of deceased and that the circumstances alleged were not sufficient to authorize the filing of the claim thereafter. The answer also pleaded a former adjudication and interposed a counterclaim for the use and rental of the land. To this answer the claimant filed a demurrer in several grounds: (1) That the claim for the items in controversy was never withdrawn. (2) That, as the claim was filed within six months after the appointment of the administrator, claimant was entitled to prove the same. ' (3) That the record affirmatively showed equitable reasons sufficient to excuse delay in the time of filing the claim, if delay there was. (4) That the facts pleaded did not constitute a former.adjudication. The demurrer was sustained, and we shall first dispose of those grounds assailing the claim as filed.\\nI. It will be observed that the several items of the claim were only \\\"for the present withdrawn,\\\" and that the two excepted items were to come on for trial; and further on the notice recites that \\\"the remaining items of said claim are wdthheld until the court passes upon the petition of said Archibald Black and wife to quiet his title in sixty acres of land, ' ' Plainly enough the purpose of the notice was to bring the two items on for trial, and in doing so to withdraw the others from the trial, but not from the claim as filed. Whether this might be done is not important, for the proposed trial did not proceed and the claim continued on file as before the service of the notice. We are of the opinion that the items thereof -were never actually withdrawn from the claim, and that even if they were, under the circumstances disclosed, i. e., that the estate was unsettled, that' the two items were undisposed of, and the amendment filed within five describing it. months after the final disposition of the ease, involving the same matter, presents a case calling for equitable relief in permitting the filing of the amendment to the claim more than one year after the appointment of the administrator and when it was filed. See Asher v. Pegg, 146 Iowa, 541.\\n2. Same formeradjudication: estoppel. II. In count 3 of the answer the defendant plead the decree in Black et al. v. Chase et al., 145 Iowa, 715,. as res adjudicata and by way of estoppel. The petition in that action was by three children of the deceased praying for the partition of two hundred acres of land left by him. Three other children, Samuel, George, and Arch, set up claims to forty acres each, and subsequently Arch (with his wife) amended his answer by alleging an oral agreement with deceased, said to have been made in 1886, whereby they were to make their home with, care for, and board deceased during the remainder of his life, and as compensation therefor to have sixty acres of land, that they had performed the contract, and prayed that title to said land be quieted in Arch, or the administrator be required to execute a deed therefor, in compliance with said agreement. On hearing, the several forties were held to belong to those claiming them, but the amendment of Arch Black to his answer, setting up said agreement and praying for the conveyance of the sixty acres in compliance therewith, was dismissed and decree entered \\\"that the claim of Arch Black to own sixty acres is without merit and not substantiated by the evidence.\\\"\\nIn this action Arch Black presented his claim against the estate of the deceased for the care and board alleged in said amendment during precisely the same period, and prayed that it be established for the value thereof. The evidence relied on was the same in both cases, save that in the last trial proof of the reasonable value of such board and care was adduced. The only evidence of deceased's expectation to pay for the board and ea.re introduced on the last trial was that of his agreement to give Arch the sixty acres of land alleged in the amendment to the answer in the first action. So that in each trial the claimant herein relied on the same proof of furnishing care and board and upon the alleged agreement to pay therefor by transferring the sixty acres of land, in the former praying that he have the land as compensation, and in the latter that payment therefor be from the funds of the estate. In other words, the issues in both actions are the same; the relief sought only being different. It is plain enough that, had the issues now being tried been first determined, the decision' would have been conclusive in an action for specific performance. Is the converse true ?\\nOf course, to recover in this action, proof that the board and care were furnished with the mutual expectation of the father to pay, and the son to receive,- compensation therefor, would be sufficient. Tank v. Rohweder, 98 Iowa, 154; Weitnaur v. Weitnaur, 117 Iowa, 578. But no testimony of this character was introduced, save as this might be inferred from the evidence of a promise that the son should have the land. Under the evidence, then, if there was to be compensation at all, this was to be the land, and the measure of recovery should be the land, or, in event this cannot be conveyed, then clearly enough claimant would be entitled to its value. It may be conceded that the causes of action are different, the one having been prosecuted in equity and the other at law, the relief sought in one being specific performance and in the other compensation by way of damages, but the same essential issues were involved in each: (1) The existence of the contract and (2) the performance of the services. These were determined in the former action, for there was a hearing and no reservation in dismissing the cross-bill.\\nWhere there is a hearing, and no such words as \\\"without prejudice\\\" appear in the decree, and no reason for dismissal is stated therein, and a decision on the merits is in no wise negatived, the issues raised are presumed to have been heard and decided on the merits. Durant v. Essex Co., 7 Wall. 107, (19 L. Ed. 154) ; Carberry v. Railway, 44 W. Va. 260, (28 S. E. 694) ; 2 Black on Judgments, section 720. See Finch v. Hottinger, 46 Iowa, 216; Hahn v. Miller, 68 Iowa, 745. Says Story, in his Equity Pleading (793) : \\\"A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dismission was upon the hearing and was not in terms directed to be without prejudice.\\\" It was said in Taylor v. Yarbrough, 13 Grat. (Va.) 183: \\\"A bill in equity having been dismissed generally without a reservation of any right of the plaintiff to sue thereafter, is conclusive upon all the issues made up in the ease.\\\" An error may be predicated on the omission to so indicate in the decree dismissing a cause on hearing if this is done for want of jurisdiction or other cause not going to the merits. Freeman, Judgments, section 270A; 2 Black, Judgments, section 720. The circumstance that the former suit was in equity and that now considered iat law is not material, as both are triable in the same court. Madison v. Garfield Coal Co., 114 Iowa, 56; Bruce v. Foley, 18 \\\"Wash. 96, (50 Pac. 935); New York Cent. Ins. Co. v. National Protection Ins. Co., 14. N. Y. 85.\\nThat the issues essential to recovery by the claimant in this action were decided against him in the former suit is put beyond controversy by the record and ordinarily must have been regarded as conclusive in support of the plea of estoppel. Madison v. Garfield Coal Co., 114 Iowa, 56; Reynolds v. Babcock, 60 Iowa, 289; Stevens v. Wadleigh, 6 Ariz. 351 (57 Pac. 622); Southern P. R. Co. v. U. S., 168 U. S. 1 (18 Sup. Ct. 18, 42 L. Ed. 355), 23 Cyc. 1218. But appellee would obviate this result by saying that, whereas strict proof was exacted to make out a case in the former suit, it was only necessary to establish his claim, in this action by a preponderance of the evidence; and further that, in prosecuting the former suit, plaintiff merely mistook his remedy, and, though defeated, may demand an appropriate remedy in a subsequent action. The last proposition may be disposed of on two grounds: (1) The claimant did not fail in the former suit because of having mistaken his remedy but owing to a failure of proof, and (2) even if there were a mistake in the remedy sought, the essential facts to sustain his claim to a different remedy were conclusively adjudicated against him in that action.\\nNothing contained in the decisions cited by the appellee indicates that the conclusive character of a decision of an issue in a former suit is obviated by the circumstance that the plaintiff might have prosecuted a different action or have sought a different remedy. In Zimmerman v. Robinson & Co., 128 Iowa, 72, it appears that plaintiff's assignor had prosecuted an action for the recovery of the price paid on a machine on the theory that the contract of purchase had been rescinded, and it having been decided on appeal that, as the machine had not been returned or a return tendered, recovery might not be had (Zimmerman v. Robinson, 118 Iowa, 117), it was held that the prosecution of that action was not an election of a remedy inconsistent with the maintenance of an action for a breach of warranty in the contract. Manifestly there was no issue decided in the one action, which was essential to the maintenance of the other, and this was true in Lemon v. Sigourney Savings Bank, 131 Iowa, 79, where an action was first prosecuted against the bank for the amount of deposit which it appeared had been paid by the defendants in notes of third parties payable to the plaintiff, and it was held that this was not an adjudication constituting an estoppel in a subsequent suit against the bank for the proceeds of these notes collected by it.\\nNot a single issue involved in the first action was raised in the second. In Asher v. Pegg, 146 Iowa, 541, the plaintiff, under the name of Margaret Pegg, asserted the right to a widow's share in the estate of the deceased, and, this having been denied, she prosecuted a claim against the administrator of the estate for services rendered by her to deceased as housekeeper and assistant in carrying on his farm, and the court held that there was no identity whatever \\\"either of law or fact between the claim asserted in the former action and the one which is now being asserted.\\\" The circumstance that a person may have availed himself of a different remedy does not obviate the principle that that which has once been judicially determined shall not again be made the subject of judicial controversy. See Reynolds v. Lyon, 121 Iowa, 733. The failure of plaintiff in the former action was not owing to mistake of remedy, for that demanded was specific and precisely that to which he was entitled, if any. True, the adverse decision may have been owing to the quantum of proof exacted, for to have succeeded he must have established the contract as well as its performance by clear, definite and con-' vincing evidence. Chew v. Holt, 111 Iowa, 362; McDonald v. Basom, 102 Iowa, 419; Briles v. Goodrich, 116 Iowa, 517; Moore v. Pierson, 6 Iowa, 279. This does not mean that the facts must be proven beyond reasonable doubt. Skeggs v. Horton, 82 Ala. 352 (2 South, 110) and Sherrin v. Flinn, 155 Ind. 422 (58 N. E. 549). But may amount to no more than saying that a higher degree of proof than exacted in actions at law is essential to constitute a preponderance of evidence. Schmuck v. Hill, 2 Neb. (Unof.) 79 (96 N. W. 158).\\nWhatever the explanation, more evidence was necessary' to make out a case in the former suit than was essential to establish the right to recover for services rendered on the claim filed against the administrator. But the claimant voluntarily selected the forum in which to litigate his claim under the alleged contract, and our attention has not been directed to any decision holding that the effect to be given to a judicial decision depended on and is to be measured by the quantum of proof exacted. It is said that acquittal of a person, in a criminal action is not conclusive in a civil action involving the same issue unless for a forfeiture, penalty, or the like exacting the same amount of proof, and the reason sometimes given is that the matter of motive or intent differentiates the two classes of actions, and at others that the evidence determinative in a criminal action is more than sufficient to support a civil action. In other words, the evidence might preponderate against the defendant and yet not be sufficient to exclude all reasonable doubt. See Stone v. U. S., 167 U. S. 184 (17 Sup. Ct. 778, 42 L. Ed. 130), explaining Coffey v. U. S., 116 U. S. 436 (6 Sup. Ct. 437, 29 L. Ed. 684); State v. Meek, 112 Iowa, 338.\\nBut the state never prosecutes a civil action based on a criminal act save for forfeiture, penalty, or the like, and for this reason the parties in criminal and civil actions are never the same. Because of diversity of parties, an adjudication in a criminal prosecution is not binding in the subsequent civil action instituted by an individual for the recovery of damages consequent of the wrongful act. Often several different actions may be maintained on a particular state of facts, and the quantum of evidence exacted in each is a matter to be considered in selecting the remedy to be sought and the forum in which to seek relief; but the determination of the issues presented is not any less binding on the parties because decided in one form of action rather than another. The fact that the issue has been decided by a court having jurisdiction of the parties and the subject-matter is that which renders the decision effective in support of a plea of an estoppel interposed in a subsequent action between the same parties involving the same issue. The amount of proof essential to establish an allegation of the petition, like the burden of proof and other matters, is a mere incident to the trial, exacted as the result of long experience as best adapted to the ascertainment of truth. Whatever the quantum of evidence required to establish a fact, or on whomsoever the burden of proof, the adjudication is binding on the parties and cannot again be litigated if properly interposed as a defense.\\nCases like Gwin v. Sumur, 49 Mo. App. 361; Porter v. Wagner, 36 Ohio St. 471, 475, and McNamara v. Arthur, 1 Ball & Beatty, 175, are sometimes cited as sustaining a different view; but none of these were determined on the merits.\\nMany cases may be found in which a different quantum of evidence was required; but this was given no consideration in determining whether the decision of the issues involved sustained the plea of estoppel. As bearing hereon, see Wolverton v. Baker, 86 Cal. 591 (25 Pac. 54) ; Bruce v. Foley, 18 Wash. 96 (50 Pac. 935); Trayhern v. Colburn, 66 Md. 277 (7 Atl. 459); Fidelity, etc., Trust Co.v. Fridenburg, 175 Pa. 500 (34 Atl. 848, 52 Am. St. Rep. 851); Myers v. Kingstone Coal Co., 126 Pa. 582 (17 Atl. 891). To hold otherwise would permit a party to experiment with different forms of action in enforcing the same right and impair the force which always has been and should be given to solemn adjudication of issues properly raised and regularly decided. Of course, the evidence adduced on the hearing of causes in equity is frequently thought not 'to be of the conclusive character essential to warrant the relief prayed and a dismissal entered for that reason. Such a decree is negative merely, and it may be that the recitals would be construed as a sufficient reservation of the issues for an action at law \\u2014 a point not now necessarily to be determined, for the decree in the former suit purported to be on the merits.\\nSpecific performance has never been regarded as a remedy to be claimed by a litigant as a right, but is said to rest in the sound discretion of the chancellor.- Where the evidence is sufficient, however, and there are no equitable considerations in the way, such decrees are entered as a matter of course. Baltimore, etc., R. Co. v. Brubaker, 217 Ill. 462 (75 N. E. 523); Rogers v. Saunders, 16 Me. 92 (33 Am. Dec. 635); Yazoo, etc., R. Co. v. Railway, 83 Miss. 746 (36 South, 74); Shuman v. Willets,. 17 Neb. 478 (23 N. W. 358); Steadman v. Handy, 102 Va. 382 (46 S. E. 380); 36 Cyc. 550.\\nThere were no peculiar equities in the former suit obstructing the granting of specific performance, and, as recited in the decree, relief must have been denied on the merits alone.\\nThere were no peculiar equities involved in the former suit, and the evidence was such that, had the contract and performance thereunder been proven, the relief prayed must have been granted' as a matter of course. It was denied, as recited in the decree, on a finding that the claim of Arch Black was \\\"without merit and not substantiated by the evidence. ' ' This adjudication of the precise issues now involved and essential to the maintenance of his claim- against the estate of deceased is conclusive against him and should have been held to constitute an estoppel. The demurrer to the plea in estoppel should, have been overruled.\\nIII. Item 15 of the claim was a note of $300, dated October 18, 1902, and purporting to be signed by H. C. Black, Luman Black, and George Black, the latter by his mark. This had been assigned to claimant, and the only testimony tending to identify the note as having been signed by deceased was that of claimant, who testified as follows: \\\" Q-. Have you a note of George Black in your possession? A. Yes, sir; I have a note. Q. Will you be kind enough to let me see it? A. Yes, sir. (Exhibit A marked.) Q. Whose property is this note? A. Mine.\\\" The note was then received in evidence over objection as not having been properly identified, incompetent,'and not binding on the administrator. The signature to a note upon which an action is founded, a copy of which has been attached to the petition, is presumed to be genuine unless its genuineness is denied by-the person whose signature it purports to be, under oath. Section 3640, Code. Neither the original note nor copy thereof was attached to the claim or amendment thereto, and, as each item thereof was specifically denied, the burden of proof was on claimant to show the genuineness of the signature, prior to the introduction of the note in evidence. Smith v. King, 88 Iowa, 105; Schulte v. Coulthurst, 94 Iowa, 418. See, also, Hay v. Frazier, 49 Iowa, 454. It follows that the court erred in receiving the note in evidence.\\nIV. Appellant asserted in his abstract that exceptions had been saved to the several instructions. This was denied by appellee, and to sustain his assertion plaintiff has presented' here a copy of the certificate of the trial judge and the reporter attached to the report of the trial in shorthand, certifying that \\\"all instructions \\u2022 given were duly excepted to by. the party adversely affected or interested.\\\" Whether the exceptions were noted by the reporter in his report does not appear, as the transcript is not before us. Nor is it claimed that any exceptions to the instructions were preserved as required by section 3709 of the Code, or otherwise. Section 3675 of the Code authorizes the reporter to note in his report in shorthand or in writing \\\"the fact that the jury is instructed, all exceptions and objections to instructions given by the court on its own motion, ' ' and this report, when properly certified, undoubtedly would be sufficient evidence of the taking of exceptions to the instructions. But the Code nowhere authorizes the preservation of the record of such exceptions by the mere certificate of the judge and reporter that they were taken. This would enable a party to supply the record from memory of these officers, rather than to establish the preservation of exceptions by what was done at the time. We think, therefore, that the appellant has failed to sustain the abstract in this respect by the certification of the record.\\nIn view of another trial, however, it may be as well to suggest that the issues be clearly stated by the trial court, instead of copying the pleadings as a part of the instructions. See Swanson v. Allen, 108 Iowa, 419. Also, that genuineness of the signature to the note of $300 included in the claim ought not to be assumed in the instructions, but that this is a matter of proof.\\n7 . Use and occupation : prima facie case. Also, that the burden is not upon the defendant, in estab- . fishing his counterclaim for the use of the land alleged to have been occupied since 1886, to show that there was a mutual understanding between him and deceased that the latter should receive pay therefor. Upon proof that the claimant entered upon the land and used and occupied the same for his own benefit with the assent of the deceased, in the absence of other proof, a promise to pay a reasonable compensation therefor arose. 24 Cyc. 1139. The burden of proof was on the claimant to show that use of the land had been paid for, or that its use was to be gratuitous. Oakes v. Oakes, 16 Ill. 106; Sterrett v. Wright, 27 Pa. 259. And if claimed to be gratuitous, this was a matter to be set up in the pleadings. Saddler v. Pickard, 142 Iowa, 691.\\nOf course, the relation of the parties and the circumstances under which the land was occupied are to be considered in determining the understanding between the parties. But the rule prevailing with respect to the rendition of services to a relative living in a family has no application to such a case.\\nBecause of the errors pointed out, the judgment is Reversed.\"}"

iowa/2211252.json

@@ -0,0 +1 @@
+"{\"id\": \"2211252\", \"name\": \"John Salmon, Appellee, v. Farm Property Mutual Insurance Association of Iowa, Appellant\", \"name_abbreviation\": \"Salmon v. Farm Property Mutual Insurance\", \"decision_date\": \"1915-01-22\", \"docket_number\": \"\", \"first_page\": \"521\", \"last_page\": \"531\", \"citations\": \"168 Iowa 521\", \"volume\": \"168\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:32:10.157301+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ladd, Gaynor and Salinger, JJ., concur.\", \"parties\": \"John Salmon, Appellee, v. Farm Property Mutual Insurance Association of Iowa, Appellant.\", \"head_matter\": \"John Salmon, Appellee, v. Farm Property Mutual Insurance Association of Iowa, Appellant.\\nINSURANCE: Re-formation of Policy \\u2014 Negligence Precluding Relief. 1 On an application for the re-formation of a fire insurance policy, the negligence of the, insured is a proper matter for consideration.\\nPRINCIPLE APPLIED: The insured\\u2019s real name was Herman Salmon. He had always been known and gone by the name of .John Salmon. The application was made out and signed in the name of John Simons by the soliciting agent for the company. The location of the property was not properly described. It was intended to cover insured\\u2019s property in a particular location. The insured never saw the application, never signed it, and did not attempt to describe the location of the property. Policy was issued, delivered to the insured and put away without reading until the day after loss. Held, not sufficient negligence to preclude re-formation.\\nINSURANCE: Cancellation of Policy \\u2014 Statute Superseding By-Law. 2 The cancellation of a mutual fire assessment insurance policy can only be effected by \\u201cgiving five days\\u2019 written notice\\u201d of cancellation, as provided by Sec. 1759-m, Sup. Code, 1913. The provisions of a by-law providing that the association \\u201cis not liable on any policy when assessments are more than 60 days overdue, \\u2019 \\u2019 does not effect a cancellation.\\nINSURANCE: Premature Action \\u2014 Abatement\\u2014Statutes Applicable. 3 An action is premature and abatable when brought within 40 days after service of the notice of loss and proof thereof, under a mutual policy of insurance issued under Ch. 5, Tit. 9, Sup. Code, 1913, See. 1744 of said supplement being applicable to such a policy.\\nINSURANCE: Statutory Time for Bringing Action \\u2014 Waiver. That 4 40 days shall elapse after the service of notice of loss and proof thereof before action may be brought on losses under fire insurance policies is a command of the statute. (See. 1744, Sup. Code, 1913.) This statutory command is not waived by a denial by the company of liability.\\nAppeal from Fremont District Court. \\u2014 Hon. A. B. Thornell, Judge.\\nFriday, January 22, 1915.\\nAction in equity to re-form a policy of fire insurance and to recover a loss suffered by plaintiff. Trial to the court. Decree and judgment for plaintiff, and defendant appeals.\\u2014\\nReversed.\\nGeorge Wambach and Hickman & Chantry, for appellant.\\nWilliam Bammer, and R. C. Campbell, for appelle\\u00e9.\", \"word_count\": \"3356\", \"char_count\": \"19419\", \"text\": \"Deembr, C. J.\\nI. Defendant issued a policy of insurance for $-100.00 on certain household furniture and family stores in Fremont County, Iowa, to one John Simons, of Hamburg, Iowa. The application purports to have been made on June 28th and it was accepted by the officers of the company and a policy was issued July 1, 1912. The application was in fact made out and signed in the name of John Simons by one Rogers, defendant's soliciting agent, at the town of Hamburg. The policy when issued was delivered to plaintiff by Rogers, and. plaintiff, without reading it, put it away for safe keeping where it remained until after the insured property was destroyed by fire.\\nPlaintiff's real name is Herman Salmon, but he has always been known as and gone by the name of John Salmon. The application was written and the insurance effected with plaintiff's implied assent and was intended to cover his property upon a certain lot in the town of Hamburg, but it was issued on its face to John Simons, and the property upon which the insured property was kept was not described as being in the town of Hamburg. Plaintiff paid the advance premium of $1.50 on the policy when it was delivered to him, and claims that he never heard of any assessments on his policy (the defendant being an assessment company) until shortly before this suit was commenced. He discovered that the policy was written in the name of John Simons the day after the fire, and his wife, or someone for him, wrote the company the following letter:\\n\\\"Hamburg, Iowa, Feb. 12, 1913.\\n\\\" C. V. Stanley,\\n\\\"Dear Sir, \\u2014 I will notify you about our house burnt Monday morning 10 Feb. 1913. Please come as soon as possible. I would like to get fixt up as soon as possible. No. 10499.\\n\\\"John Simons.\\\"\\nHe claims that it was signed as it appears by direction of Eogers, the agent. The defendant made the following response to this letter:\\n\\\"Des Moines, Iowa, Feb. 12,1913.\\n\\\"Mr. John Simons,\\n\\\"Hamburg, Iowa.\\n\\\"Dear Sir: Eeplying to your favor of the 12th, beg to say that we have .looked up our records and they show that the 1912 assessment, levied October 1st, has not been paid, and that the Company is not liable for a loss occurring sixty days after this levy, unless the assessment is sooner paid.\\n\\\"We trust you will find we are correct.\\n\\\"Yours truly,\\n\\\"Forrest Huttenlocher, Pres.\\\"\\nThereafter one of plaintiff's attorneys wrote the defendant a letter, to which its attorney made the following response:\\n\\\"Des Moines, Iowa, Feb. 18, 1913. \\\"Mr. William Bammer, Attorney,\\nHamburg, Iowa.\\nDear Sir:\\u2014\\nAs attorney for the Farm Property Mutual Insurance Association of Iowa, I am writing you in response to a letter you wrote them regarding some fire loss sustained by John Simons. Would say that your client evidently did not inform you that he failed to pay the assessment for last year, and that he was delinquent at the time the fire occurred; by reason of which, his policy became void. If you will take the pains to ask him, he will, no doubt, inform you that he did not pay his last year's, assessment, and on further examination of the by-laws, you will find that there can be no liability under a policy where the member is delinquent at the time the loss occurs. I am simply writing you this so you may be advised of the true condition of things.\\nYours truly,\\nGeo. 'W'ambach.\\\"\\nThe fire occurred on February 10, 1913, and this action was commenced on February 26th of the same year.\\nThe suit was brought in equity for the purpose of re-forming the policy so as to make the plaintiff, John Salmon, the insured instead of John Simons, and to locate , , , , . the property insured upon lots seven and , el^^> m Block 107, m the city of Hamburg, Iowa, instead of the same lots and block in Fremont County, Iowa.\\nIt is manifest from the facts above recited that the policy should be so reformed in equity as to express the intent of both plaintiff and defendant's soliciting agent, who wrote the application and delivered the policy, unless it be that plaintiff was so negligent in not reading his policy as to deprive him of the relief prayed. The only negligence relied upon is failure to read the policy, and the copy of the application which was made a part thereof. Plaintiff never saw the original application, nor did he sign it, and he had a right to rely upon the agent's truthfully stating the facts when he assumed to do whatever was necessary to secure the policy. Again when the policy was delivered to the plaintiff he had a right to assume that he was the assured named in the policy, and that the property was correctly described, unless there was something in the circumstances surrounding the transaction calculated to arrest his attention.\\nWe do not find such negligence on his part as to deny him relief in equity. Had plaintiff himself signed the application or done anything to mislead the agent, doubtless a different result would be indicated; but he did neither, nor did he attempt to describe the location of the property. Negligence in such circumstances is a question of fact, and we are constrained to hold that plaintiff was not so careless as to deprive himself of relief in equity.\\nII. An assessment was made by defendant company on its policy holders about October 1, 1912, and the amount of plaintiff's assessment was sixty cents. As the same was not paid when due, an addition of twenty-five cents was made thereto on November 1st, and another like penalty on December 1st (all according to defendant's by-laws), making the aggregate $1.10. Defendant claims to have addressed and sent by mail to John Simons, at Hamburg, Iowa, two notices of the assessment \\u2014 one about October 1st, and another about November 1st, each being sent in an open-faced envelope, each having a return card printed thereon; and that neither of these letters was returned to it.\\nIt also appears that defendant sent a registered letter early in December, 1912, notifying Simons of the assessment, addressed to him at Hamburg, Iowa, and that this was returned to it bearing the following endorsement: \\\"Refused. Returned to writer. ' ' This was received at Des Moines December 7, 1912. Plaintiff denied having received or refused any of these letters, and it appears that the November one was delivered to one Arthur A. Simon, but he took it back to the post office and he (plaintiff) specifically denied that he ever saw or refused to receive the December letter. That letter, so far as material, was as follows:\\n\\\"Des Moines, Iowa, December 2, 1912.\\n\\\"Dear Sir:\\u2014\\n\\\"At this date your assessment for 1912, due October 1st, has not been received at this office. It is now sixty days past due and we must insist upon immediate payment of the amount as given in the coupon below. You may have been so busy that you have neglected to remit but you should never allow your insurance to remain unpaid, as losses occur when least expected, and the Association is not liable for loss occurring when dues are in arrears.\\n\\\"We wish to be as lenient with you as possible, and will waive payment of the penalty added December 1st,, (as per by-laws) if you remit on or before December 12th, 1912. Send the amount due at once and save yourself the extra cost of delay.\\n\\\"This notice is sent you by registered mail, which is a legal notice. Make remittance by draft or postal or express money order. Bills or coin are sent at your risk.\\n' ' Third Notice, December 2, 1912.\\nJno. Simons,\\nHamburg*\\nIowa.\\nIf mailed Before Dee. 12, 1912, send $ .85\\nIf paid After Dec. 12, 1912, send 1.10\\nReturn this coupon with your remittance sure.\\n\\\"In case you cannot attend our next annual meeting in person, you may wish to appoint someone to represent you. In the form given below, you may write the name of your choice, date same and sign it, and enclose with your remittance.\\n\\\"I hereby appoint..............as my proxy to represent me at the Annual Meeting of members of Farm Property Mutual Insurance Association of Iowa, to be held on the Third Wednesday of January, 1913, and to cast my vote upon all questions that may come before such meeting.\\nDated this........day of..............191...\\nPolicy No.........(Sign here)...............\\\"\\nDefendant's by-laws, among other things, provided that:\\n\\\"Nor shall this Association be liable for any loss under any policy on which the assessment is delinquent more than sixty days from date of notice of the assessment. And no action shall be brought nor shall any suit be maintained at law or in equity in any court upon any policy in this Association for loss or damage unless brought within one year from the time of the loss. ' '\\nThis by-law is pleaded as a defense to the action, and it is contended that this defense is conclusively established by the facts above recited. The defendant is a mutual assessment company, organized under Title Nine of Chapter 5 of the Code and amendments thereto (Sec. 1759-a et seq. of the Code Supplement), and See. 1759-m provides that:\\n\\\"Any policy of insurance issued by any association operating under the provisions of this chapter may be can-celled by the association giving five (5) days' written notice thereof to the insured, or if the insured shall demand in writing or in person, of the association, the cancellation of his policy, the association shall immediately advise him, by letter to address named, the amount, if any, due, as his pro rata share of losses and expenses incurred since date of his policy. Upon surrender of his policy and payment of all sums due, his membership shall cease, provided, that during the months of June, July and August, hail insurance policies may be cancelled only at the option of the officers of the association carrying the risk. Upon the expiration or cancellation of any policy of insurance issued under the provisions of this act, all obligations to the association having been paid, the members shall be entitled to and shall be paid by the association a sum equal to at least seventy-five per cent (75%) of the unexpended portion of the amount contributed by him to the reinsurance reserve.\\\" 32 G. A., Ch. 80, See. 13.\\nTo forfeit such a policy as the one in suit, for non-payment of assessments, notice must be given of the assessment, and if not paid within five days, the policy would be forfeited. This notice may doubtless be given by registered letter. We may assume, for the purposes of the case, that the registered letter was properly directed to Simons, and that, although he did not receive it, yet he should be held bound by what it contained on account of the way in which his name appeared in the policy, and yet it does not follow that the policy has been cancelled or that such a notice as the statute requires was given. The assessment was treated as valid and collectible, and no statement was made that the policy would be forfeited for nonpayment. It was treated as in full force, and plaintiff, or Simons, was considered a member, invited to attend the annual meeting or to send a proxy. This does not meet the requirements of the statute, and the policy was never legally forfeited. The by-laws of the Association do not control as against a statute, and the ease in this respect is ruled by Beeman v. Ins. Co., 104 Iowa 83; Bradford v. Ins. Co., 112 Iowa 495, although both were decided before the change in the statute already noticed.\\nIII. The final point made is that the action was prematurely brought in that the forty days' time allowed by Sec. 1744 of the Code was not observed, the suit having been commenced within sixteen days of the fire. Plaintiff contends that the section relied upon is n\\u00b0l applicable to such companies as the defendant, it having been organized, as already stated, under the provisions of the Code Supplement authorizing the formation of mutual fire assessment associations. It is true that the chapter and title of the Code under which defendant was organized, it being Secs. 1759 to 1759-0 of the Code Supplement of 1913, makes no provision as to proofs of loss, and contains no limitations as to the time of bringing suit, and this chapter was enacted after the provisions of the Code upon which appellant relies. But we have heretofore disregarded chapter numbers of the Code, and felt ourselves bound to construe the entire insurance Code as a whole. Corson v. Iowa Assn., 115 Iowa 485; Stork v. Supreme Lodge, 113 Iowa 724, and cases cited. See apparently to the contrary, Brinsmaid v. Iowa Assn., 152 Iowa 134.\\nSome doubt was expressed in Bradford v. Ins. Co., 112 Iowa 495, regarding the applicability of Sec. 1744 to com pa\\u00f1\\u00edes organized as this defendant was, under prior statutes relating to mutual assessment companies, by reason of the changes made in the Code of 1897; but no definite pronouncement was made upon the proposition. Whatever of doubt there may have been seems to have been removed by amendments to that Code, passed by the 27th and 29th General Assemblies.\\nThe 27th G. A. passed an act known as Chapter 44, which amended Sec. 1744 of the Code of 1897 by inserting the words \\\"seventeen hundred and forty-two hereof,\\\" making the section read as it appears in the Code Supplement of 1913, as follows:\\n\\\"The notice of loss and proof thereof required in section seventeen hundred forty-two hereof, and the notice and proof of loss under oath in ease of insurance on personal property, shall be given within sixty days from the time loss occurred, and no action for such loss shall be begun within forty days after such notice and proofs have been given to the company, nor shall the time within which action shall be brought be limited to less than one year from the time when a cause of action for the loss accrues. No provisions of any policy or contract to the contrary shall affect the provisions of this and the three preceding sections. ' '\\nThe 29th G. A. passed an act known as Chapter 73, which is now Sec. 1742-a of the Code Supplement of 1913, reading as follows:\\n\\\"In furnishing proofs of loss under any contract of insurance for damages or loss of personal property it shall only be necessary for the assured, within sixty days from the time the loss occurs, to give notice in writing to the company issuing such contract of insurance accompanied by an affidavit, stating the facts as to how the loss occurred, so far as same are within his knowledge, and the extent of the loss, any agreement or contract to the contrary notwithstanding.\\\"\\nThe title to the first act was \\\"To amend Sec. 1744 of the Code relating to proofs of loss under contracts of insurance,\\\" and the title to the last was, \\\"An act relating to notice and proofs of personal property insured. [Amendatory of Chapter 4, of Title 9 of the Code, relating to insurance other than life.] \\\"\\nThe latter section of the Code Supplement by its express terms relates to proofs of loss under any contract of insurance for loss of personal property, and 1744 relates to insurance of personal property, and if these sections are not applicable to mutual fire assessment insurance associations, then there are no provisions on the subject anywhere. In such circumstances this court has held in analogous cases that the general insurance law is applicable to mutual benefit societies, especially with reference to \\\"applications for insurance. See the Stork and Corson cases, supra. Christie v. Indemnity Co., 82 Iowa 360; Parsons v. A. O. U. W., 108 Iowa 6.\\nThere is every reason why these sections should be held applicable to mutual companies organized under title 9, Chapter 5, as well as those organized under chapter 4 of the same title, and following the cases already cited, we think they should be so held.\\nBrinsmaid's case, supra, does not decide the point and the suggestion made in that case as to Sec. 1742 of the Code not applying to all contracts and policies of insurance has now been met by the adoption of what is known as Sec. 1742-a, Code Supplement, which expressly relates to any (or all) contracts of insurance covering personal property. To now hold that all the law relating to mutual fire assessment insurance associations is to be found in Chapter 5 of title 9 of the Code would introduce a great deal of confusion and uncertainty as to the rights, duties and responsibilities of the parties in ease of loss, and leave such associations free from any provisions whatever as to applications for membership or insurance, to notice and proofs of loss, to valuation of property, and to the time within which suits should be brought, to say nothing of other provisions of the general insurance code which by their terms are made applicable to all insurance contracts.\\nFor the reasons pointed out, we think this suit was prematurely brought, and that the trial court was in error in not sustaining defendant's plea in abatement.\\nDefendant's denial of liability did not waive the provisions of the statute. Blood v. Ins. Co., 103 Iowa 728; Vore v. Hawkeye Ins. Co., 76 Iowa 548; Quinn v. Ins. Co., 71 Iowa 615.\\n. . The decree must therefore be, and it is\\u2014 Reversed.\\nLadd, Gaynor and Salinger, JJ., concur.\"}"

iowa/2217069.json

@@ -0,0 +1 @@
+"{\"id\": \"2217069\", \"name\": \"Kate D. Funk, Appellee, v. Anchor Fire Insurance Company, Appellant\", \"name_abbreviation\": \"Funk v. Anchor Fire Insurance\", \"decision_date\": \"1915-09-24\", \"docket_number\": \"\", \"first_page\": \"331\", \"last_page\": \"346\", \"citations\": \"171 Iowa 331\", \"volume\": \"171\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:42:21.439944+00:00\", \"provenance\": \"CAP\", \"judges\": \"Deemer, C. J., Ladd and Salinger, JJ., concur.\", \"parties\": \"Kate D. Funk, Appellee, v. Anchor Fire Insurance Company, Appellant.\", \"head_matter\": \"Kate D. Funk, Appellee, v. Anchor Fire Insurance Company, Appellant.\\n1 INSURANCE: Insured Not \\u201cUnconditional and Sole Owner\\u201d\\u2014 Knowledge \\u2014 Waiver\\u2014Estoppel. An insurance company that issues a policy to one who has an insurable interest in the property, but who, it knows, is not the \\u201csole and unconditional\\u201d owner, and collects the premium and later makes the policy payable to a mortgagee, knowing that the mortgagee was taking the policy as security for a loan, waives absolutely, and is estopped to insist on, the provision of the policy that the \\u201cpolicy shall be void if the interest of the insured be other than unconditional and sole owner.\\u201d\\n2 INSURANCE: Condition of Title \\u2014 Knowledge of Company through Agent \\u2014 Sufficiency of Evidence. A finding that an insurance company had knowledge of the actual ownership of insured property is justified by a showing that the agent of the company (a) took the acknowledgment of the deed which showed the condition of the title and (b) prepared for the actual owner, and had in his possession, an abstract of title to the property showing the actual ownership.\\n3 INSURANCE: \\u201cInsurable\\u201d Interest \\u2014 Homestead in Property. A homestead interest in property is an insurable interest.\\n4 INSURANCE: Forfeiture \\u2014 Foreclosure \\u201cWith Knowledge of Insured\\u201d \\u2014 Service by Publication \\u2014 Strict Construction of Policy. A policy of insurance, payable to a mortgagee, is not voided under a clause providing that \\u201cif, with the Imowledge of the insured, foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy, by virtue of any lien . . . thereon, this policy shall be void,\\u201d when, in the foreclosure proceedings and sale, service on the insured was by publication only. Constructive notice is not \\u201cknowledge\\u201d within the meaning of the policy.\\n5 INSURANCE: Forfeiture under Mortgage Foreclosure Clause \\u2014 Consent to Mortgage \\u2014 Effect. A forfeiture of a policy of insurance cannot be predicated on a provision that the policy is voided, \\u201cif foreclosure proceedings be commenced ... by virtue of any lien . . . \\u201d on the property, when the foreclosure complained of was of a mortgage to which the insurance company had consented.\\n6 INSURANCE: Forfeiture \\u2014 Prohibited Change of Possession \\u2014 Tenant. The fact that there is some shadowy showing in the record that a party was in possession, at one time, of the insured premises, possibly as a tenant, is wholly insufficient on which to base a forfeiture under tho clause of the policy that \\u201cif any change other than by death of the insured takes place in the possession of the property . . . the policy shall be void.\\u201d\\nAppeal from Muscatine District Court. \\u2014 Hon. A. P. Barker, Judge.\\nFriday, September 24, 1915.\\nAction by mortgagee on a policy issued to mortgagor and made payable to mortgagee as her interest might appear. Judgment and decree in the court below for the plaintiff. Defendant appeals.\\nAffirmed.\\nE. M. Warner, and E. E. Richman, for appellee.\\nSullivan & Sullivan, for appellant.\", \"word_count\": \"5055\", \"char_count\": \"28655\", \"text\": \"Gaynor, J.\\n\\u2014 This action is brought by the plaintiff against the defendant company upon a certain policy of insurance, issued on the 28th day of November, 1904, in which defendant company undertook to and did insure, by the terms of the policy, the premises in controversy against loss by fire for the term of five years. The plaintiff bases her right to recover from the company upon the following facts, which are not disputed in this record:\\nOn the 3d day of June, 1905, she loaned to one Lulu R. Henning $550.00, and took a mortgage upon the premises insured to secure the loan. At the time the loan was made by the plaintiff to Mrs. Henning, the policy in controversy was delivered to the plaintiff by one H. H. Arnold, with the following endorsement upon it:\\n\\\"Permission is granted for encumbrance upon the real property insured in this policy not to exceed the principal sum of $550.00 and loss, if any, is made payable first to Kate D. Funk, of Muscatine, Iowa, mortgagee, (or trustee), as her interests may appear, subject to the conditions of this policy.\\n\\\"Attached to and made a part of policy No. 49832, of the Anchor Fire Insurance Company, of Des Moines, Iowa, this 28th day of November. (Signed) H. H. Arnold, Agent.\\\"\\nThe property covered by said policy and by said mortgage was totally destroyed by fire on the 9th day of February, 1908. Due notice of loss was given as required by the terms of the policy.\\nThe defendant interposes certain defenses to plaintiff's right to recover.\\n1. That the policy in question was issued to W. F. Henning, who stated that he was the unconditional and sole owner of the property, and that the defendant had no knowledge that he was not the owner, until long after the destruction of the property by fire; that he was not in fact the owner at the time the policy was issued; that the property was owned by his wife, Lulu R. Henning; that W. F. Henning wrongfully and fraudulently concealed this fact from the defendant; that the policy provided by its terms: ' ' This policy shall be void . if the interest of the insured be other than unconditional and sole owner\\\"; that the said W. F. Henning was not the sole and unconditional owner of the premises at the time the policy was issued nor at the time the loss occurred; and that, by reason thereof, the policy was not in force at the date of the destruction by fire.\\n2. The defendant alleges, as a complete defense to plaintiff's claim, that the contract of insurance further provided: \\\"Or if any change, other than by death of the insured, whether by legal process, judgment, voluntary act of the insured, or otherwise, take place in the possession, or in the interest or title of the insured in or to the property covered by the policy . or if, with the knowledge of the insured, foreclosure proceedings be commenced; or notice given of the sale of any property of this policy by virtue of any lien or incumbrance thereon, this policy shall be void.\\\"\\nThat, after the issuance of the policy and before the destruction of the property by fire, this plaintiff commenced a suit against W. F. and Lulu R. Henning upon a certain mortgage upon the premises covered by the policy, and judgment was rendered in foreclosure proceedings against W. F. Henning and Lulu R. Henning and a decree of foreclosure entered, and sale made under special execution, and possession of the property taken by the plaintiff herein; that this defendant had no notice or knowledge of the foreclosure proceedings until after the destruction of the property; that by reason of this fact the policy, by its terms, became void, and was not in force at the date of the destruction of the property.\\nPlaintiff in reply pleads an estoppel and says that H. H. Arnold was the agent of the defendant and issued the policy and knew, at the time the policy was issued, that the property belonged to Lulu R. Henning; and that, with full knowledge of this fact, he issued the policy to W. F. Henning; that with full knowledge of the fact that the property belonged to Lulu R. Henning, he undertook, as agent of defendant company, to issue insurance that would protect the plaintiff's mortgage interest, and delivered to the plaintiff the policy in suit, both as the agent of the defendant and of Lulu R. Henning, and the plaintiff accepted and relied upon the same. Plaintiff denies that W. F. Henning made any representations to the defendant as to his ownership of the property, or that he fraudulently concealed the knowledge of the exact title at the time the policy 'was issued.\\nUpon the issues thus tendered, the cause was tried to the court, and judgment and decree entered for the plaintiff as prayed. From this judgment, the defendant appeals.\\nThe facts disclosed by the record appear to be substantially as follows:\\n\\\"W. F. Henning and Lulu R. Henning were husband and wife, and resided upon the property in controversy as their homestead. Prior to the 2nd of August, 1902, the title to the property was in W. F. Henning. On that day, he conveyed the title to his wife, Lulu R. Henning. The title continued in her until the 11th day of November, 1908. On the 28th day of November, 1904, defendant company issued this policy of insurance to W. F. Henning for the sum of $500 for the term of five years. On the 3d day of June, 1905, the plaintiff made a loan of $500 to Lulu R. Henning, the note being signed by Lulu R. Henning and her husband, W. F. Henning, and the same was. secured by a real estate mortgage on the homestead. At the time said loan was made, some controversy arose as to whether or not the real estate, independent of the building thereon, was sufficient security for the loan, and the plaintiff was informed that there was a policy of insurance upon the building on the premises. At the time the loan was made and the mortgage executed, the policy in controversy, with the mortgage clause endorsed, was delivered by one H. H. Arnold to Mr. E. F. Richman, the attorney for the plaintiff, in the presence of Mrs. Henning, and the policy continued in the possession of Richman, as attorney for plaintiff, up to the time of the commencement of this trial. The lot on which the insured building stood was worth not to exceed $200. Upon making the loan, Richman, representing the plaintiff, went to see the property. Richman testifies:\\n\\\"The application for the loan from Mrs. Funk to the Hennings came from H. H. Arnold. He was a loan agent. He represented that he had an application for a loan, but had no funds, and wanted to know if I could make it. I told him if the security was satisfactory I would do so. I went to see the property. The lot itself was probably not worth more than $200. Without the insurance on the house, the security would not be sufficient. Arnold told me there was insurance upon the property to the amount of $500, but did not say in what company. The day the loan was closed up, Arnold brought Mrs. Henning and her husband to my office to close the loan. The policy was delivered to me by Arnold in the presence of Mrs. Henning, with the mortgage clause attached.\\\"\\nRichman was attorney for Mrs. Funk at the time. There is no evidence that there was anything said by W. F. Henning or his wife, touching the ownership of the property, to the defendant company or to anyone representing the defendant company at any time. There is no evidence that W. F. Henning said that he was the owner of the property absolutely, qualifiedly or otherwise. There is no evidence that he concealed from the defendant, or its representatives, the title to the property. There is no evidence of what occurred, or what was said at the time the policy in question was issued, touching the title to this property. It appears, however, that Lulu E. Henning was in fact the owner; that W. F. Henning was her husband that, as such, he had an insurable interest in the property; that the only interest, however, which he had in the property was the homestead right.\\nWhile there is no direct evidence of the fact, we think it cannot be disputed, under this record, that H. IT. Arnold was the agent of the defendant company'at the time this policy was issued, and at the time it was turned over to the plaintiff's attorney with the mortgage clause attached. At the time the policy was issued, it was countersigned by H. H. Arnold, as agent. At the time the mortgage clause was attached, his name appears as agent, immediately following the mortgage clause. At the time this trial was had he was dead. Lulu E. Henning also was dead. W. F. Henning was not a witness at the trial. It appears that he had left the country for parts unknown long prior to this trial. The only direct evidence appearing in the record, touching the relationship of Arnold to the defendant company, is the statement of the witness Eicliman that Mr. Arnold said to him:\\n\\\" T am agent of the company that carries this insurance, and I will bring the policy to you later.' The next day he brought the policy to me with the mortgage clause endorsed. This was the day the mortgage was executed or immediately after. The policy was delivered to me by Arnold.\\\"\\nWe feel that we are justified in saying that Arnold was the agent of the company in some capacity, either soliciting agent or recording agent. Touching the question of Arnold's knowledge of the ownership of the property in question, the record discloses that the deed from W. F. Henning to Lulu R. Henning was dated August 2, 1902, and was duly filed for record in the office of recorder of deeds in the county on September 16, 1902; that the acknowledgment of this deed was taken before Arnold as notary public; that at the time this loan was made by the plaintiff to Mrs. Henning, and at the time the policy of insurance was delivered to her attorney with the mortgage clause attached, Arnold brought an abstract of the property and delivered it to plaintiff's attorney; that the abstract was continued by Arnold down to the date of its delivery to the plaintiff's attorney; that the continuation was in Arnold's handwriting; that the conveyance to Lulu R. Henning, as it appeared upon the abstract, was in the handwriting of H. H. Arnold. Arnold was the local agent for the defendant company, and was also the agent of Mrs. Henning in procuring this loan, and acted for her in securing the loan from the plaintiff, and knew that the insurance was demanded as additional security for the loan. The policy of insurance bears date of November 28, 1904. The property was destroyed by fire on the 9th day of February, 1908. A premium of $9.00 was paid for the policy for the term of five years. The policy would expire on November 28,1908.\\nNeither the plaintiff nor her attorney knew that the policy of insurance was in the name of W. F. Henning. Though delivered to plaintiff's attorney, it was not examined by him or her, further than to see that the mortgage clause was attached. Arnold was then acting for the company. He procured the mortgage clause to be attached to the policy, making the loss, if any, payable to the plaintiff as her interest might appear. While representing the company, he knew that plaintiff was taking this policy as additional security for her loan. He knew, at that time, that Lulu R. Henning was the owner of the property. He must have known that the policy was made payable to her husband, and yet, though representing the company, he did not' disclose this fact to the plaintiff. Plaintiff took it in good faith, believing that the policy thus delivered afforded her additional security for her loan, and did not learn of the objection now urged by the defendant to the policy until after the loss occurred.\\nIt is a general rule that the knowledge of an agent of an insurance company as to all matters which come within the scope of his general employment is the knowledge of the company. Insurance companies, like other corporations, necessarily act through their agents. The agents are the eyes and ears of the company, through which it must receive information, if at all. Knowledge which comes through these avenues to the company is its knowledge. As a legal entity, the only information or knowledge it can acquire is through these agencies. As the knowledge of the agent is the knowledge of the company, it is bound thereby. There is no distinction in this state between soliciting and recording agencies. See Secs. 1749 and 1750 of the Code of 1897.\\nIt is the misfortune of the company if it has a negligent or careless agent, and not the fault of the assured. If the agent of the company knows of facts which, at the inception of the contract of insurance, would render the security paid for of no avail to the insured, the company is bound by such knowledge, and if he fails to communicate this knowledge to the company, the insured, in the absence of fraud, ought not to be bound by such failure. Where a fact which would constitute a breach of a condition precedent to any liability of the company on the policy is fully known to its agent, local or general, who is authorized to consummate the contract of insurance, the agent's knowledge is the knowledge of the company, and his act in executing the policy as a valid completed eodtraet is an exercise of the power of the company, and constitutes a waiver by it of such condition precedent, estopping the company from claiming a forfeiture for breach of condition. See Farnum v. Phoenix Ins. Co., 83 Cal. 246 (17 Am. St. 233). See, also, Manhattan Fire Ins. Co. v. Weill, 28 Gratt. (Va.) 389 (26 Am. R. 364). In this last case it is said, quoting from Bidwell v. Northwestern Ins. Co., 24 N. Y. 302:\\n\\\"Indeed it is not easy to perceive why an insurance company, by reason of the formal words or clauses (of a general and comprehensive nature) inserted in \\u00e1 policy intended to meet broad classes of contingencies, should ever be allowed to avoid liability on the ground that facts of which the company had full knowledge at the time of issuing the policy were then not in accordance with the formal words of the contract, or some of its multifarious conditions. If such facts are to be held a breach of such a clause, they are a breach eo instanti of the making of the contract, and are so known to be by the company as well as the insured. A.nd to allow the company to take the premium without taking the risk would be to encourage a fraud. It would, as a legal principle, be equivalent to holding that a warranty of the soundness of a horse is a warranty that he has four legs, when one .has been cut off. ' '\\nSee also Insurance Co. v. McDowell, 50 Ill. 120 (99 Am. D. 497).\\nAs has been said, the reason that notice to an agent is held notice to his principal is because it is the agent's duty to give the principal notice of the facts, and it will be presumed that he-has done so. This is true whenever the notice is connected with the subject-matter of the agency. See Jordan v. State Ins. Co., 64 Iowa 216, in which it is said:\\n\\\"It has been determined by this court that an insurance company issuing a policy and receiving the premium thereon, with knowledge of facts which are breaches of the warranties by the assured, and of the conditions of the policy, will be estopped to deny the validity of the instrument, and will be regarded as having waived the violated conditions. ' '\\nW. F. Henning did have an insurable interest in this property. It was his homestead. True, he was not the sole and unconditional owner of the property. Can the company avoid liability because of this condition of the policy, when, through its agent, it knew just what interest W. F. Henning had in the property insured ? Even assuming that it was the purpose and intent of the company to issue the policy to W. F. Henning, \\u2014 -that he was the party intended to be insured by the policy, \\u2014 that his interest in the property was the interest intended to be covered by the policy, \\u2014 yet, through its agent, it consented to the mortgage and endorsed upon the policy so issued a provision consenting to the mortgage and providing that the loss should be payable to the mortgagee as her interest might appear. It knew, through its agent, at the time that it consented to this mortgage, and to the mortgage clause which was attached to its policy, that the plaintiff was accepting the policy, with the mortgage clause attached, for the purpose of additional security for the loan made, and said, \\\"Permission is granted for encumbrance upon the real property insured in this policy, not to exceed the principal sum of $550.00, and loss, if any, is made payable first to Kate D. Funk, mortgagee, as her interest may appear.\\\"\\nThere was, in this, mortgage clause, an affirmative assertion that the property was insured in the policy. True, it is said, \\\"Subject to the conditions of the policy.\\\" The condition here invoked to defeat the policy is that W. F. Henning was not the sole and unconditional owner of the property. The fact is that he had a homestead interest in the property. The fact is that the company insured this interest to the amount of $500. The fact is that the company knew, through its agent Arnold, that he had only a homestead interest in the property. The company cannot, by.inserting in the policy that it is at its inception void, because he is not the unconditional, owner, accept the premium for the insurance, guarantee indemnity, and then say, \\\"We knew that he was not the unconditional owner; we knew that the only insurable interest he had in the property was that of a homestead. We inserted in the policy a condition directly opposing the fact, as it was known to us at the time, and thereby we have defeated the policy.\\\" That is to say, \\\"We issued you a policy, Mr. Henning; we received your money; we knew that the clause stated in the policy, in view of the facts which we then knew, made the policy absolutely void eo instcmti upon its delivery; we took your premium, but we took no risk, and are not liable under it for the loss.\\\"\\nThere is no evidence in this record as to the value of the homestead interest in the property. Under Sec. 1742 of the Code of 1897, the amount stated in the policy is prima-facie evidence of the insurable value of the property at the date of the policy. See Wensel v. Insurance Assn., 129 Iowa 295. At the time the company issued its mortgage clause, it knew that the mortgage was executed by the party named in the policy of insurance, and his wife, Lulu R. Henning, and knew that Lulu R. was then the owner of the fee title; that the assured had only a homestead interest, and was not the unconditional and sole owner.\\nUpon this question, see McMurray v. Capital Insurance Co., 87 Iowa 453. In this case, the policy contained a warranty that the insured was the unconditional owner of the property, when, in fact, he had only a contract for a deed. The company sought to defeat recovery upon the policy after loss because of this condition of the policy. It appeared, however, that the recording agent issued the policy with knowledge of the fact that the insured was not the sole and unconditional owner, and the company was held bound. See also Carey v. Home Ins. Co., 97 Iowa 619. In that ease, the court said: \\\"Appellant, with knowledge, through its agent, of the true state of the title of the insured property, and that it was not entirely unconditional and sole, issued this policy to the plaintiff, who had an insurable interest in the property.\\\" The property was in fact the homestead only of the plaintiff. There was a condition in the policy that it should be void if the interest of the assured was other than the entire, unconditional and sole ownership. The court said, citing Lamb v. Ins. Co., 70 Iowa 238: \\\"The defendant knew, when it issued the policy, that the assured did not own the fee simple title to the real estate, and it knew precisely what title he had, and, so knowing, issued the policy. If there was a false statement, the defendant so knew, and must be held to have waived the conditions of the policy in this respect.\\\" The court said, \\\"This decision is decisive of the question under consideration.\\\" See also the following eases: Fitchner v. Fidelity Mutual Fire Assn., 103 Iowa 276; Gurnett v. Ins. Co., 124 Iowa 547, in which it is said: \\\"The principle is well settled that when an insurance policy contains a condition which renders it void at its inception, and this is known to the insurer, it will be held to have waived such condition by receiving the premium and issuing its policy.\\\" See Wensel v. Ins. Co., 129 Iowa 295; Padrnos v. Ins. Co., 142 Iowa 199; Kesler v. Ins. Assn., 160 Iowa 374; Frane v. Ins. Co., 87 Iowa 288.\\nThis disposes of the first two errors relied upon by appellant.\\nOn the 21st day of November, 1906, prior to the destruction of the property by fire, plaintiff commenced a suit in the district court upon her n\\u00f3te and mortgage, hereinbefore referred to, making W. F. Henning and the heirs of Lulu R. Henning, who had died in the meantime, parties defendant. There was no personal service of the notice of the commencement of this action, or of any proceedings thereunder served upon W. F. Helming, the assured. The notice to him was issued, but never served, the sheriff certifying that he could not be found within the county. There was an affidavit filed in the case that he was a nonresident, and that personal service could not be made upon him. Notice thereupon was published as required by law, and this is the only notice, so far as the Hennings are concerned. There is a provision in the policy to this effect:\\n\\\"If, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy, by virtue of any lien or encumbrance thereon, this, policy shall be void. ' '\\nDefendant seeks to avoid the policy on this ground. It will be noted that the provision of the policy relied upon is that it shall be void in the event that foreclosure proceedings are commenced, or notice of sale given, with the knowledge of the insured. W. F. Henning was the insured. There was no personal service of any notice upon him in the suit. There is no evidence that he had any knowledge of the commencement of this suit. Defendant, having' prepared this policy and these conditions upon which a right to forfeiture is predicated, must be held to have chosen the words advisedly, and must be held to have used the word \\\"knowledge,\\\" as distinguished from constructive notice, advisedly, with the intent to limit the right of forfeiture to those cases in which the insured had knowledge of the commencement of the foreclosure proceedings, or \\u2014 what has been .sometimes held equivalent \\u2014 actual notice. That the word \\\"knowledge\\\" as used in the contract means actual knowledge, as distinguished from constructive knowledge or constructive notice, see Fidelity & Casualty Co. v. Gate Natl. Bank, 25 S. E. (Ga.) 392. That knowledge and notice are not synonymous or interchangeable, see Words & Phrases, Vol. 5, p. 3941.\\nPolicies of insurance of this character are strictly construed against the company. If the company had intended by this provision to cover cases in which foreclosure proceedings were commenced without the knowledge of the assured, in his absence, and without notice to him, they could have so said; but they limited the right of forfeiture to foreclosure commenced with the knowledge of the assured.\\nHowever that may be, we are not inclined to believe that it was the intention and purpose of this provision of the policy to defeat the policy in the event foreclosure proceedings were commenced upon a mortgage, to the giving of which the company consented after the issuance of the policy. The foreclosure proceedings did not have the effect of creating any new lien upon the property, but simply of establishing and confirming the lien to which the company had already consented. See 2 Pomeroy, Equity Jurisprudence (3d Ed.) Sec. 592. Upon this point, see Fitzgibbons v. Ins. Co., 126 Iowa 52; see, also, Greenlee v. Ins. Co., 102 Iowa 427.\\nIt is nest contended that, prior to the destruction of the property, there was a change of possession, in violation of the terms of the policy. On this point, the policy provides: \\\"If any change other than bii death of the insured takes place in the . , possession of the property covered by the policy, the policy shall be void.\\\"\\nIt appears that W. F. Henning abandoned his wife some time prior to the loss, \\u2014 just when is not shown. We assume from the record, which is very indefinite on this point, that W. F. Henning and his wife were in possession of this property at the time this policy was issued; that W. F. Henning abandoned his wife and left the country. When this occurred does not definitely appear. We assume that she remained in possession of the property up to the time of her death; that whatever change took place in the possession of the property was due to her death, and was made by those who represented the estate.\\nThe allegations of the defendant are that Elmer Jennison was in possession of the property, pursuant to a sale or contract of sale by the plaintiff. This fact is not shown in the record, nor have we any evidence upon which such a finding could be made. The only evidence that Jennison was ever in possession of the property is the fact that, in the foreclosure proceedings, notice was served upon him as tenant. At any rate, the evidence on this point is too meager to make a finding of fact upon which a forfeiture upon this provision of the policy could be sustained.\\nWe find no error in the record, and the cause is\\u2014 Affirmed.\\nDeemer, C. J., Ladd and Salinger, JJ., concur.\"}"