Church v. Lacy

• Decision Date: 17 May 1897
• Citation: 71 N.W. 338,102 Iowa 235
• Parties: CHURCH v. LACY ET AL.
• Court: Iowa Supreme Court

102 Iowa 235

71 N.W. 338

CHURCH

v.LACY ET AL.

Supreme Court of Iowa.

May 17, 1897.

Appeal from district court, Kossuth county; George H. Carr, Judge.

This proceeding is upon the petition of G. S. Church to set aside a judgment rendered on default against him in favor of these defendants at the preceding term of court, for reasons stated, and that he be allowed to defend against said action. These defendants answered, and the issues were tried to the court, and judgment rendered dismissing plaintiff's petition, from which he appeals. Affirmed.Geo. E. Clarke, for appellant.

J. C. Cook, for appellees.

GIVEN, J.

1. On October 11, 1889, appellees caused an original notice to be duly served on the appellant in Kossuth county, Iowa, notifying him that on or about the 1st day of December, 1889, a petition of these appellees would be filed in the office of the clerk of the district court of Kossuth county, Iowa, claiming of appellant $150 as damages “for overdriving a certain bay mare, from which said mare died”; and that, unless he appeared and defended on or before noon of the first day of the next term to be begun on the 9th day of December, 1889, default and judgment would be entered against him. A petition was filed November 29, 1889, and, appellant failing to appear or defend, default and judgment were entered against him on the third day of the term, namely, December 11, 1889. After the term, to wit, December 21, 1889, appellant filed this petition, asking that said judgment be set aside, and that he be allowed to defend against said action, alleging as grounds therefor that said judgment was irregularly obtained. The original notice was that a petition would be on file “on or before the 1st day of December, 1889,” and that the term would be begun “on the 9th day of December, 1889.” It is contended that, as December 1, 1889, was Sunday, and as there were not 10 clear days between that day and the commencement of the term, the court had no jurisdiction to render said judgment. The notice, it will be observed, was that a petition would be filed “on or before December 1, 1889,” and it was filed on November 29, 1889, more than 10 clear days before the first day of the term. There was no irregularity in rendering the judgment, so far as this contention is concerned.

2. Appellees' action was to recover $150 damages for “overdriving a certain bay mare, from which said mare died.” On proving up their damages, appellees showed that at the same time appellant had overdriven a certain other mare, to the damage of appellees in the sum of $30. Leave was given to appellees to amend so as to include this claim, and judgment was rendered accordingly, though the amendment was not filed until five days thereafter. Appellant contends that the court had no jurisdiction to allow this amendment, and to render judgment thereon by default, nor to render judgment thereon until the same was on file. It appears that after the commencement of this proceeding, to wit, May 17, 1890, appellees filed a remittitur as to said $30, leaving the judgment to stand for $150, with interest, and for costs. Let it be conceded that the court had no jurisdiction to allow said amendment, and to render judgment thereon; yet, as by the remittitur appellant stands unprejudiced by that action, it is not such an irregularity as would justify the setting aside of the judgment.

3. As a further ground for the relief asked, appellant alleges that about the 11th day of October, 1889, understanding that appellees were threatening to bring said suit against him, he went to A. F. Call, Esq., a practicing attorney in Algona, and submitted a statement of the case to him, and was advised that he was not liable on the claims; that he then and there employed said Call to defend any suit that might be brought by appellees; that said Call agreed that he would attend thereto, and notify the plaintiff of any suit that might be brought, and of the time when the court would sit; that, relying upon said Call, appellant went away; that about December 17, 1889, he learned for the first time that suit had been brought, and default and judgment entered against him, and that said Call had removed from Algona, and was not regularly practicing in the courts of Kossuth county. The evidence shows that, upon being served with the notice, appellant went to the...