Stewart v. Gorham , 122 Iowa 669 ( 1904 )

Bishop, J.

Appellant bas assigned errors based upon tbe order of tbe court overruling bis motion for new trial, etc. It is contended, in tbe first instance, that tbe court was 1. assignment of causes. not authorized to proceed with tbe trial on tbe ¿ay was for the xeason that no special assignment of tbe case bad been made for that day. Conceding that tbe record shows affirmatively that no formal assignment of tbe case bad been made, we do not think there is any merit in tbe contention. Tbe term of court being held was one at which tbe case was properly triable, and tbe court took it up in its order when reached. Section 3659 of tbe Code, relied on by plaintiff, simply authorizes tbe court, in arranging its business for tbe term, to make assignments of eases for particular days. It is not obliged to do so, however. Tbe language used is permissive in character, and 'there is nothing in tbe general object to be attained which makes it necessary to read tbe mandatory word “must” into tbe statute in lieu of tbe word “may,” now appearing therein.

II. A further, assignment of error is based upon tbe contention that tbe trial court was misled by statements made by defendants’ counsel, and that, but for such statements, tbe 2. assignmenment of causes: statement of counsel. court would not have ordered the trial to proceed. There is no merit in tbe contention. Tbe only statement complained of as having been made was that counsel said be did not believe plaintiff intended to prosecute bis action. There are no circumstances showing that any legal prejudice resulted therefrom, or that the court was misled or in any way influenced by tbe statement as made. Equally without merit is tbe claim made that, in view of tbe conference and correspondence shown to have been bad between counsel for plaintiff and counsel for defendants, tbe action of tbe latter in proceeding to a trial of tbe case operated as a fraud upon tbe former and upon tbe court. We need not set out tbe showing made. It is sufficient to say that, in our view, counsel for plaintiff were trying to get this case placed at tbe foot of their list of engagements, and counsel for defendants were sturdily resisting such an arrangement, and insisting that the case be tried when reached in its orcler.

III. Counsel for appellant insists that when the case was reached for trial, and there being no appearance on his behalf, the action should have been dismissed. Code, section 3. practice: failure to appear: dismissal of action: cross bill. 3764. It is true enough that the law does not plaintiff in default for want of appearance at the time of trial any other penalty than the dismissal of his action, with costs. But if there bo a counterclaim or cross-bill filed, such is not abated by the failure of plaintiff to appear, or the dismissal of his action, and the defendant may proceed to trial on such counterclaim or cross-bill. Code, section 3766; Foster v. Ellsworth, 71 Iowa, 262. In the instant ease the pleading on behalf of defendants, as we have seen, was denominated an “answer and cross-bill.” It follows that if therein is set up facts constituting an aifinnative cause of action, on proof of which affirmative relief as prayed for should be granted, then defendants were entitled to proceed. But it is not enough that the pleading of the defendants be denominated a" “cross-bill” if it is not such in fact. Thus it will not be sufficient if it appear that the averments of the pleading are all defensive in character; that is, a statement of matters of fact brought forward, designed and intended simply to defeat, in whole or in part, a recovery by plaintiff: To entitle a defendant to proceed, his pleadings must state an independent cause of action, with an appropriate demand for relief. It is not material that the cause stated involves, to a greater or less extent, the subject-matter of the cause of action as stated by plaintiff in his petition, but it must contain within itself the essential elements of a cause of action. In legal effect, the defendant becomes plaintiff, and tire plaintiff _ becomes defendant. Code, section 3570; Stuart v. Hines, 33 Iowa, 60; Muir v. Miller, 82 Iowa, 700; Palmer v. Palmer, 90 Iowa, 17.

It is clear that the trial court proceeded upon the theory that the pleading filed by defendants in this case was in fact, as well as in name, á cross-bill. We are unable to agree that such effect should be given to the pleading. In brief, the case' stated by plaintiff is that defendants hold the stocks, bonds, and taxes in trust; the obligation being to pay therefrom, or from the proceeds, the costs and expenses of construction, etc., and to account to plaintiff for a share of the balance, if any remain. . All this the defendants admit. But they say that plaintiff agreed that there might be deducted from his share, if any surplus there should be, the amount of the taxes paid to Hittig; and they ask that this be done. They also say that they were compelled to pay out more money for right of way, etc., than they had been led to expect, and this they say should be deducted from the fund in .their hands before any division of surplus is made. They also say that they have paid the interest on the bonds held by Birmingham and by plaintiff^ and they ask that the sum so paid shall be credited to them on settlement. Such is the sum and substance of the affirmative matters pleaded. That all such are purely defensive in character, intended to reduce the amount of plaintiff’s recovery, or defeat a recov' ery in toto, seems too plain for argument. There is not a suggestion, even, that plaintiff is obligated or indebted to defendants in any such way as to entitle them to a money judgment against him. Indeed, we think our view corresponds with that taken by the pleader, inasmuch as each paragraph 'of the pleading, other than those making admission of aver-ments of the petition, begins: “Further answering, defendants say,” etc. Moreover, there was no attempt to make proof of any of the affirmative matters referred to on the. trial, and the decree contains no reference thereto. The fact that affirmative relief is asked in the prayer cannot, of course, be considered, where the averments of the pleading do not warrant such relief. Burroughs v. McLain, 37 Iowa, 189. It may be said, however, that the pleading makes admission of the contract between plaintiff and defendants, and that such contract may therefore be considered not only as a.part of the pleading, but that the same was proper to be considered by the court as evidence. And this, we think, may be accepted as true. But the contract provides that the parties thereto may sell the bonds and stocks at any time they so desire, subject to the limitation that the bonds shall not be sold at less than eighty-five per cent, of their par value. Now, if it shall be said that the fact of the contract appearing, aided alone by the allegation of the defendants’ pleading to the effect they knew of no market in which the bonds can be sold at eighty-five per cent, of par value, or in which the stock can be sold at any price, makes out a case for equitable relief — a position we do not think is tenable — still there is no possible ground upon which the court would be warranted in passing a decree requiring the plaintiff to purchase or find a purchaser for such stock and bonds within thirty days, under penalty of having all his rights. and interest cut off and forever foreclosed. And this is especially true in view of the fact that no proof whatever was offered, bearing upon the market or sale value of the stock and bonds, or that any attempts had been made to agree upon sale thereof, or to find a purchaser therefor. The evidence introduced was to the effect that defendants were still in possession thereof, and there was no attempt to make further proof.

We conclude that the pleading filed by defendants was not a cross-bill entitling them to proceed after default for want of appearance by plaintiff, and that the entire action should have been dismissed at the costs of plaintiff; that the decree entered, not being based upon any sufficient pleading, and having no support in evidence, must be reversed. As the dismissal of plaintiff’s action must be without prejudice, a proper regard for the rights of defendants requires that the determination of this action shall npt be held to conclude them in any future proceeding.

The decree is reversed, and the cause is remanded, with instructions to dismiss the action; the costs of the action in the court below, made up to the time of default, including costs of entering judgment, to be taxed to plaintiff; all other costs there made to be taxed to defendants. The costs in this court will be taxed to appellees. — Reversed and kbmahbed.