55 F. 833 (S.D.Iowa 1893), Austin v. Riley

Citation:55 F. 833
Party Name:AUSTIN v. RILEY et al.
Case Date:May 10, 1893
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 833

55 F. 833 (S.D.Iowa 1893)

AUSTIN

v.

RILEY et al.

United States Circuit Court, S.D. Iowa, Western Division.

May 10, 1893

Statement by WOOLSON, District Judge:

On March 14, 1892, complainant filed in the clerk's office in said western division her bill herein, seeking correction and foreclosure of mortgage given by respondents Riley, and praying that respondent Winchester be decreed to have no lien on or interest in the mortgaged premises, or, if it be found that he has a lien thereon, that it be decreed to be junior to complainant's said lien. On the same day subpoena was duly issued, returnable at the April rule day, and the return of service shows personal service on Winchester, on March 16, 1892. Upon the May rule day, on demand of complainant, by praecipe duly filed, default for want of appearance was entered against said Winchester. Upon October 3, 1892, the same being in the second week of the regular term of this court, complainant moved for decree, and the same was duly entered pro confesso upon the default of said Winchester, (as well as of the other respondents,) correcting said mortgage as prayed, adjudging the amount due on said bond thereby secured, and ordering sale of mortgaged premises, etc. Upon October 14, 1892, praecipe for execution was filed, and execution issued on said decree. On the day following, notice of time and place of sale was served personally upon the tenant in possession of the mortgaged premises. On November 12, 1892, the mortgaged premises were duly sold by the master appointed in said decree, and due report thereof has been made to and confirmed by this court. Upon November 11, 1892, respondent Winchester filed in the office of said clerk a motion asking (1) that the default heretofore entered against him be set aside; (2) that the decree above described be vacated; or, (3) if such decree cannot be vacated, that it be so modified as to decree the priority of lien held by said respondent over the lien of complainant's mortgage. Attached to said motion, to support same, are the affidavits of respondent and G. A. Holmes, of counsel for respondent. These affidavits state that prior to the April rule day, at which respondent was summoned to appear, respondent and his said counsel went to the office of

Page 834

said clerk, examined the file of papers in this case, and said counsel duly signed and delivered to said clerk the written appearance of respondent, and requested said clerk to file same in.this cause, and said clerk stated that he would do so; but they are surprised to find that the same has not been filed, and that no appearance has been entered herein for respondent; that counsel for respondent had no notice of the application for decree herein, nor was said decree submitted to him, nor had he any knowledge or information of the entry of said decree, until after the adjournment of the term at which said decree has been entered. The affidavits also state that the priority of respondent's lien arises from its being a mortgage for the deferred purchase money of said mortgaged premises, and that same was executed and duly recorded some two years before complainant's mortgage was executed, and that at the time of filing of complainant's bill herein respondent had secured a decree of foreclosure of his said mortgage in the (Iowa) state courts, and said premises had been duly sold thereunder. Conversations are also detailed with complainant's counsel, wherein it is claimed that said counsel recognized the said priority of respondent's said lien. Said affidavits also charge said counsel with having committed fraud on respondent's counsel and on the court in obtaining the decree entered herein, giving complainant priority of lien. It may be properly stated here that complainant's counsel filed affidavits denying such conversations and recognition of such priority of lien, and denying all fraudulent, etc., action as charged.

Burke & Cassady and G. A. Holmes, for the motion.

Saunders, McFarland & Dickey, opposed.

WOOLSON, District Judge, (after stating the facts.)

While counsel for complainant have made a showing seeking to disprove the allegations of the motion and accompanying affidavits, (which impute improper, deceitful, or fraudulent conduct on their part,) they directly deny the power of the court to vacate or modify the decree as attempted. And to the latter question we will first address our attention, since, if this power does not exist, the questions of fact beyond will not demand investigation. The point presented may be thus stated: That the motion having been filed herein after the term of court had ended during which the decree was entered, this court has no power to set aside the default, or modify the decree on motion, as herein attempted. The question presented is not a new question in the United States courts, and its extended examination is not required. The following facts are not disputed: Upon...

To continue reading

FREE SIGN UP