Lessenich v. Sellers

Ladd, J.

*317

i. equity: venue: assignments of error.

*316 The plaintiff, at the beginning of this -action, was a resident of Woodbury county/ where the defendant bank also was located. The defendant Sellers was a resident of Cherokee county, and to it he moved the •cause be transferred on the ground of such residence, that he was the sole party in interest, and that the bank was in no wise interested in the controversy. The contract •stipulated that “each of the above parties agree to place their respective deeds in the Merchants’ National Bank c.f .Sioux City, Iowa, until the abstracts are-completed, or the deal is to be completed, on or before thirty days from •date.” The only possible interest the bank had in the 'transaction was as custodian of these deeds. The petition .alleged that Sellers had put performance beyond his power, and failed to aver refusal of the bank to deliver plaintiff’s deed to her upon demand. Affidavits were filed to the effect that Sellers made no claim to the deed, and had not done so for some time prior to the beginning of •the action. As the bank made no appearance or objection -to the transfer, much might be said in support of appellant’s contention. Railway Co. v. O'Neil, 81 Iowa, 463 ; *317 Mill Co. v. Bowen, 7 Iowa, 465 . Unfortunately for him,, however, the ruling has' not been challenged in the manner essential to invoke the jurisdiction of this court. The constitution prescribes two methods of trial: ‘‘The supreme court shall, have appellate jurisdiction only in cases in chancery and shall constitute a court for the correction of errors at law under such restrictions as the General Assembly may bylaw prescribe.” Section 4, article 5. The jurisdiction, thus conferred in equity suits is that possessed by chancery courts at the time of the adoption of the constitution, and. in the absence of restrictions, an appeal brings the whole-case before us for review and the retrial of facts as well as the law. See 2 Encyclopedia, Pleading & Practice, 31. Hence errors of any character which do not involve the power of the court to finally dispose of the case need not be assigned. Thus rulings on the admissibility of evidence contained in the record may be -reviewed without assignment of error, for the evidence is before the court to consider or reject, according to its conclusion. Smith v. Wellslager, 105 Iowa, 140 .

So, too, the ruling on a motion or demurrer may be reviewed in passing on the merits when the propriety of finally disposing of the case is not involved. But it seems to be quite well settled in this state that rulings which go-to the very right to a hearing de novo and a determination, on the merits' cannot be questioned without an assignment-of error. As said in Powers v. O'Brien County, 54 Iowa, 501 , after referring to several statutes: “When an equitable case is tried anew upon an appeal to this court, that-is ordinarily an end of the controversy. It is a trial anew of the whole controversy between the parties. But where there is an appeal from an order sustaining or overruling a demurrer or motion, and there has been no trial anew in this court of the whole controversy, the general rule is that the cause is left in such condition as to require that. *318 it be remanded for a trial in accord with tbe opinion of this court.” See, also, to the same effect, Patterson v. Jack, 59 Iowa, 632 ; Bank v. Pottorfe, 96 Iowa, 354 ; Hogueland v. Arts, 113 Iowa, 634 ; Marshall v. Westrone, 98 Iowa, 324 ; Fink v. Mohn, 85 Iowa, 739 ; Clark v. Raymond, 84 Iowa, 251 ; McLuen v. District Township, 82 Iowa, 742 .

In these decisions some importance is attached to standing on the ruling, but this can make no difference. If the error is such that it resulted in denying a hearing on the merits when such hearing ought to have been granted, or awarded that right when it should have been denied, it is an error at law, and must be assigned before becoming the subject of review. To illustrate: A division of the petition is stricken on motion or held insufficient on demurrer, and the plaintiff insists that he was thereby deprived of a hearing on a meritorious claim. His contention is not simply that the ruling was erroneous, but also that because of it he has been deprived of the hearing the law guaranteed him. So, toe, where evidence has been excluded by the trial judge and is not contained in the record. If material and admissible, the ruling has precluded a hearing on the merits. The same effect would follow the reversal of a ruling which has sustained the transfer of a cause to the equity side of the calendar or denied a transfer to the law side. In such cases the errors do not inhere in the trial de novo, but go to the extent of depriving this court of its appellate jurisdiction, and therefore are purely errors of law. In the instant case the denial of the change of venue, if deemed erroneous, would end the power to hear on the merits, and. result in remanding the cause for a new trial.

The unfailing test in determining the advisability of assigning errors in an equity case is found in answering whether the right to a hearing on the merits is challenged. If any ruling, whether on a motion or demurrer or in rejecting evidence, involves the right of this court to hear *319 and finally dispose of the case, the error must be assigned. If, notwithstanding the alleged error, this court may finally dispose of the case on its merits, then it is entirely unnecessary to assign error in order to have it reviewed. It follows that we may not pass upon the ruling by which the ■change of venue was denied because of the failure of •appellant to properly assign error.

2. abstract of cific*de?ects: rejection of: waiver. II. The defendant forwarded the abstracts of title to the land to Gruensel & Lessenich, at their request, and they submitted them to an attorney for • an opinion. He returned an unsigned memorandum, pointing out certain incumbrances necessary to' be , . removed. The corrections required were subsequently made by Sellers. But the plaintiff denied that was done with her authority. On this issue the evidence is in sharp conflict, and we are inclined, to the view that she reserved the right to have the abstracts inspected by an attorney of her own selection. Accordingly the abstracts were delivered to her for this purpose May 17th, and rejected four days later. No requisitions were made as a result of this examination. She rejected them in their entirety as not exhibiting perfect title. It cannot be said that they were unreasonably detained, as there were eleven chains of title to investigate. The title was to be exemplified by perfect abstracts; that is, papers prepared by skilled searchers of the records, showing the origin, course, and incidents of the title thus exhibiting them. Under the agreement it was not enough that the title be in fact perfect; it must appear to be such on the records of the county as epitomized in the abstracts. As argued by appellant, the practice generally prevailing is for him to whom the abstract is to be furnished for inspection to point out the defects claimed and afford the other party an opportunity to correct them. Warvelle, Abstracts, 4; 1 Am. & Eng. Enc. Law, 215. Doubtless, if retained an unreasonable length of time without objection, defects *320 therein, if any, are to be treated as waived. So the making of specific requisitions may be deemed as a waiver of others not mentioned. See Stevenson v. Polk, 71 Iowa, 278 ; Papin v. Goodrich, 103 Ill. 86 . But we have discovered no case’ holding that, in the absence of any waiver, the vendee to whom the vendor has agreed to accompany the deed with an abstract showing perfect title is bound at his peril to point out his objections specifically in order to insist on a breach of the agreement. The contract-requires an abstract of a stipulated character, and until such an one was furnished the agreement had not been performed. As tending to support this conclusion, see Smith v. Taylor, 82 Cal. 533 ( 23 Pac. Rep. 217 ); Howe v. Hutchinson, 105 .Ill. 501; Kane v. Rippey, 22 Or. 296 ( 23 Pac. Rep. 180 ).

3. cash payment: interest- III. We shall not enter into a discussion of the numerous defects alleged in these abstracts. To most of the criticisms the appellant has offered no suggestions. In view of this condition of the record we prefer to base our finding upon the conclusion,reached after a careful examination of the record, that no injury resulted to defendant from the alleged breach of the contract. In appellant’s argument the estimates of various witnesses are averaged and balanced; but we think such evidence, when weighed in the light of the knowledge and experience of the several witnesses, failed to show that defendant was obtaining any more from plaintiff than his land was really worth on the market at the time. Through evident inadvertence the decree allows interest from the time of payment to Sellers. During the thirty days permitted for consummating the deal he rightly held the money, and should not be charged frith interest within that time, but from its expiration. With this slight modification the decree will be affirmed, at appellant’s costs. — Modieieh and AEEIRMED.