Babcock v. Wolf

• Decision Date: 17 June 1886
• Parties: BABCOCK v. WOLF.
• Court: Iowa Supreme Court

70 Iowa 676

28 N.W. 490

BABCOCK

v.WOLF.

Supreme Court of Iowa.

June 17, 1886.

Appeal from Page circuit court.

This is an appeal from an order of the circuit court, overruling a motion to expunge a decree in an action in chancery between these parties. The decree was in favor of the defendant. Plaintiff appeals.

REED, J., and ADAMS, C. J., dissenting.

James McCabe, for appellant.

Stockton & Keenan, for appellee.

ROTHROCK, J.

The action in equity was pending at the November term, 1883, of the Page circuit court, and at that time the following record entry was made in the case: “By agreement of parties this cause is to be heard at Afton, Iowa, December 27, 1883.” By a written agreement, made at the same term, the papers and all the testimony in the case were placed in the custody of the clerk, who was directed to forward them to Afton immediately prior to the time fixed for the hearing. The cause was heard at Afton on the day fixed by the stipulation, before Hon. D. D. GREGORY, who was then judge of the circuit court for that circuit, and whose residence was at that place. When the cause was presented to the court at Afton, the judge held it for the purpose of examining the authorities which had been presented, and one of the counsel was to make an additional brief in the case. There is nothing of record showing when or where the decision was to be rendered, but there appears to us to be a preponderance of oral testimony to the effect that the judge then stated to the parties that he would decide the case in vacation, as soon as he reached a conclusion, and inform counsel of the result by letter. The term of Judge GREGORY expired on the thirty-first day of December, 1884. On the twenty-ninth of that month he prepared a written decision of the case at his home at Afton, by which he ordered that the petition be dismissed. This decision was deposited in the office of the American Express Company at Afton, directed to the clerk of the circuit court at Clarinda. The package was billed from the office at Afton on the first day of January, 1885, and was received by the clerk of the court and filed on the next day. At what time it was delivered to the express company at Afton does not appear. We think it is fair to presume, however, that it was deposited in the express office at Afton before the expiration of the term of office of the judge. Any other presumption would in effect be holding that the act of making the decision was a wrongful usurpation of judicial power, and the law does not presume that persons do wrongful acts.

Two questions arise on these facts:

1. It is claimed by appellant that the decision is a nullity, because, while it was stipulated that the cause should be heard at Afton, there was no agreement that it should be decided in vacation. But we think that the conduct of the parties amounted to an agreement that the cause should be decided in vacation. All of the evidence was submitted at Afton. Two terms of the court were held at Clarinda, after the cause was submitted at Afton, and beforethe expiration of the term of office of the judge. None of the parties took any steps to have the decision made at either of these terms; and, as the judge and all the parties knew that after the last term at Clarinda the only decision of the case which could be made by the then acting judge must be made in vacation, it should be held that such was the agreement and understanding of the parties. The case is very much like Myers v. Funk, 51 Iowa, 92,S. C. 8 N. W. Rep. 788, where such an agreement was inferred from the acts of the parties. It is not denied that the cause was not fully and fairly presented; and, as it was an action in equity, the objection that a decision was not rendered by the judge in open court should not be entertained in view of all the facts and circumstances in the case. And it will be observed that the written stipulation provides that the case shall be heard at Afton. The trial of a chancery suit...