Opinion
December 14, 1926.
MUNICIPAL COURTS: Jurisdiction — Revoking Order for Costs. An 1 order relative to the costs of a continuance may be set aside by the municipal court when motion for new trial is heard.
EVIDENCE: Best and Secondary — Authority of Corporate Officer.
APPEAL AND ERROR: Harmless Error — Striking Allegation but
Receiving Testimony.
Headnote 1: 15 C.J. p. 992. Headnote 2: 22 C.J. p. 1012. Headnote 3: 4 C.J. pp. 939, 940.
Appeal from Des Moines Municipal Court. — T.L. SELLERS, Judge.
Action at law, to recover a real estate commission. Jury waived, and cause tried to the court. Judgment for plaintiff, and defendant appeals. — Affirmed.
James A. Merritt, for appellant.
Tolbert C. Moore and Clinton R. Dorn, for appellee.
Appellee, a real estate agent, brings this action to recover a commission for services which he alleged he performed for appellant in the sale and exchange of a residence in the city of Des Moines for a farm near Albia. The court, sitting as a jury, found the facts in favor of appellee. The evidence upon almost every vital point is in direct conflict. The finding of the court must be given the same effect as the verdict of a jury, and is binding upon this court. Nothing will, therefore, be gained by a detailed recital of the evidence. This is true notwithstanding the fact that reasonable minds might well differ as to the correctness of the conclusion reached. Counsel for appellant has assigned error in many rulings of the court, a few of which we deem it necessary to consider.
The court ordered an item of $30 costs for a continuance and mileage for a witness taxed to appellant. At the time of ruling upon the motion for a new trial, the former order was set aside. It is contended by counsel for appellant that 1. MUNICIPAL the court did not have authority, under Section COURTS: 10681 of the Code of 1924, to set aside the jurisdic- order. The language of the statute apparently tion: confers express authority upon the court to make revoking order for costs. the ruling complained of. In any event, the ruling was favorable to appellant, and she has no ground of complaint, particularly as no judgment for costs appears to have been entered in the court below, and appellee has filed a remittitur covering this item in this court.
The contract signed by appellant agreed to exchange her property for a farm near Albia which was owned by the Northern Trust Savings Bank of Des Moines. The signature of the bank was attached by P. McLuen, cashier. The resolution 2. EVIDENCE: of the bank authorizing McLuen to sign the best and contract, was not introduced, but instead, he secondary: was permitted to testify orally to his authority authority of to do so. The objection to this testimony was corporate that it was not the best evidence. We gather officer. from the testimony that a copy of the resolution was indorsed on the contract, which was introduced in evidence. The ruling was correct.
It is also urged that the proof fails to show that the bank was able and willing to consummate the exchange. This contention, it seems to us, is without merit, and, in any event, was a question of fact passed upon by the court.
It is also contended that appellee acted in bad faith, and sought to perpetrate a fraud upon appellant. So far as this contention involves a question of fact, the court's finding is conclusive. A motion to strike the allegations 3. APPEAL AND of appellant's answer setting up fraud was ERROR: sustained, in part at least, by the court. This harmless ruling is complained of by appellant. It may be error: assumed that the ruling was erroneous, and, but striking but for what followed, a reversal would allegation necessarily result. The court made findings of receiving facts in which it is stated that the ruling on testimony. the motion to strike was disregarded and the evidence tending to show fraud considered. So far as the record shows, appellant was permitted to, and did, introduce all of the evidence she had on the subject of fraud. She does not claim otherwise. If, therefore, her evidence was before, and was fully considered by, the court before judgment was pronounced, and was given the same effect as though the motion had been overruled, appellant was not prejudiced by the ruling. This is what the record shows was done.
Other matters discussed are sufficiently disposed of by what we have already said. The court did not commit reversible error in overruling the motion for a new trial. The case is essentially a fact case, and we refrain from further discussion of the matters involved. The judgment is affirmed. — Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur.