Larson v. Williams & Betenbender
| Decision Date | 27 May 1895 |
| Citation | 63 N.W. 464,100 Iowa 110 |
| Parties | CELIA LARSON v. WILLIAMS & BETENBENDER, Appellants |
| Court | Iowa Supreme Court |
Appeal from Calhoun District Court.--HON. CHARLES D. GOLDSMITH Judge.
ACTION in equity, to cancel a certain judgment, and to restrain the enforcement thereof. Decree was entered in favor of the plaintiff. Defendants appeal.
Affirmed.
M. R McCrary and Brown McCrary for appellants.
M. W Beach for appellee.
OPINION
I.
The judgment in question was rendered in the district court in and for Calhoun county on the seventeenth day of December, 1890, in an action wherein these defendants were plaintiffs and Peter Larson and his wife, this plaintiff, were defendants. Plaintiffs in that action stated in their petition, as their cause of action, in substance, as follows: That on January 11, 1889, they entered into an oral contract "with the defendant to build a dwelling house" upon real estate described; that in pursuance of said contract they built said dwelling "for defendant," as specified in their statement for mechanic's lien; "that said defendant, at the time of the commencement of said building, was, and still is, the owner in fee simple of said land and said building;" that on the twenty-fourth day of April, 1889, they filed a statement for a mechanic's lien; that seventy-seven dollars remains due and unpaid, together with one dollar and fifty cents expense of said lien, after deducting all credits and three dollars for additional work. They ask judgment for the balance due, and decree establishing and enforcing their mechanic's lien. Their statement of mechanic's lien shows the oral contract "with Peter Larson"; that he was the owner of the land; that the house was built for Peter Larson; and that there was due from him, after allowing all credits, eighty dollars. The statement of accounts is against Peter Larson. The original notice in said case was addressed to "Peter Larson and wife, Celia Larson, defendants," and notified them that a petition would be filed, "claiming of you the sum of eighty-six dollars," enforcing a mechanic's lien against the real estate described, and that unless they should appear and defend "a default will be entered against you, and judgment rendered thereon." On December 17, 1890, said defendants, "Peter Larson and Mrs. Peter Larson making default, judgment was entered in favor of said plaintiffs against the defendants for the sum of eighty-five dollars and five cents," with interest. Decree was entered establishing and foreclosing said mechanic's lien. On July 7, 1893, these defendants caused execution to issue upon said judgment against Peter Larson and this plaintiff, and caused a debtor of this plaintiff to be garnished, and thereupon, on February 9, 1894, plaintiff commenced this action.
Plaintiff alleges, as ground for setting aside said judgment, that at the time it was entered the court had no jurisdiction to enter a personal judgment against her, there being no allegation in the petition showing any personal liability on her part. She further alleges, that said judgment was obtained against her by fraud practiced by the successful party and their attorney, in the manner stated. She states facts which would constitute a valid defense to said action against her, for a personal judgment. Upon the hearing of this action, the court found, that said judgment was rendered without jurisdiction to enter a personal judgment against this plaintiff; that at the time the labor was performed for which a lien was established, this plaintiff was not the wife of Peter Larson, and not a party to said contract; that said judgment, so far as it was personal against this plaintiff, was obtained by fraud practiced by the defendants and their attorney; and that plaintiff did not discover that a personal judgment had been rendered against her until more than a year after its rendition, by reason of the representations of the defendants and their attorney. The court found, "that the judgment ought to be modified to the extent that there be no personal judgment against her, but in no manner disturb the judgment against Peter Larson, or its effect upon the dower right of this plaintiff;" and decree was entered accordingly.
II. The finding of the district court that there was no allegation in the petition in the case in which said judgment was obtained, or evidence showing or tending to show, personal liability on the part of this plaintiff, is fully sustained by the record before us. This action was upon the contract made with Peter Larson alone, and for a lien based upon the statement of account filed against Peter Larson alone. At the time the oral agreement was made, the house built, and the statement for lien filed, this plaintiff was not the wife of Peter Larson, and was as any other stranger to the transaction. She was a proper party to that action because of her marriage, but certainly not personally liable on the contract, and no one would understand from a reading of that petition that such a claim was made therein. There is considerable evidence as to why Peter Larson and his wife did not appear in that action. We are satisfied that she did not appear and defend against a personal judgment because of representations and assurances made to her by these defendants to the effect that there was no necessity for her doing so. These representations may have been made in good faith, for no reason appears why Mrs. Larson should have anticipated that a personal judgment would be rendered against her, nor had she had any defense as against any relief that might properly be asked against her under the petition. The wrong of this transaction was in taking personal judgment against her. M. R. McCrary, the attorney for these defendants, who took said judgment, when asked upon cross-examination why a personal judgment was taken against this plaintiff, answered, "Because I wanted a judgment against her." He further states that he based it on the fact that she had personal notice that personal judgment would be asked against her. We have no doubt, from the record before us, but that the district court was without jurisdiction to render this personal judgment against the plaintiff; that the same was obtained wrongfully and fraudulently; and that, because of the conduct and representations of the defendants and their attorney, the plaintiff did not discover the existence of said judgment until about the time said execution was issued thereon.
Appellants contend that plaintiff's petition should be dismissed, because the action was not commenced within the time prescribed in the Code; citing McConkey v. Laub, 71 Iowa 636 (33 N.W. 146), and other cases. In the case cited it is recognized that courts of equity have jurisdiction to grant relief against judgments where the ground of relief is not discovered, as in this case, until after the expiration of one year from the rendition of the judgment. We think the decree of the district court entered in this case is fully warranted by the facts, and it is AFFIRMED.
SUPPLEMENTAL OPINION ON RE-HEARING.
Appeal from Calhoun District Court.--HON. CHARLES D. GOLDSMITH, Judge.
THURSDAY, DECEMBER 10, 1896.
THIS is an action in equity to cancel a certain judgment rendered in the district court of Calhoun county, Iowa on December 17 1890, in which action these defendants were plaintiffs, and Peter Larson and his wife, this plaintiff, were defendants. Plaintiffs, in that action, sought to foreclose a mechanic's lien against the defendants therein. They averred that they had entered into an oral contract with the "defendant" to build a dwelling house; that the house was built for the "defendant"; that "defendant" was the owner of the land and building situated thereon. They set out the filing of their statement for a lien, and asked judgment "against defendants," and the enforcement of their lien against the land and building. The statement shows that the contract was made with Peter Larson, and that he owned the land on which the house was erected. The account was against Peter Larson alone. The original notice ran against "Peter Larson and wife, Celia Larson, defendants," and notified them that a petition would be filed "claiming of you the sum of $ 86," with interest. It claimed the enforcement of a mechanic's lien against the real estate described, and that "unless you appear thereto and defend * * * a default will be entered against you, and judgment entered thereon." Both parties defendant having made default, a judgment was rendered against them as prayed, and a decree entered establishing and foreclosing the lien. July 7, 1893, the defendants herein caused an execution to issue on said judgment against Peter Larson and this plaintiff, and caused a debtor of this plaintiff to be garnished. February 9, 1893, this action was commenced by plaintiff. The grounds alleged for canceling the judgment, as against this plaintiff are--First, that the court had no jurisdiction to enter said judgment, there being no allegation in the petition showing any personal liability on part of Celia Larson; and second, that fraud was practiced by the successful parties and their attorney in obtaining the judgment. Facts are set forth in plaintiff's petition, which, if true, would constitute a complete defense to said action as against her. On the hearing, the court found that the judgment was rendered without jurisdiction as against said Celia Larson; that, at the time the labor was performed for which a lien was established, she was not the wife of Peter Larson, and not a party to said contract; that said judgment, in so far as it was personal against this plaintiff, was...
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