Claeys v. Moldenschardt

• Citation: 148 N.W.2d 479,260 Iowa 36
• Decision Date: 07 February 1967
• Docket Number: No. 52353,52353
• Parties: Viola Marie CLAEYS, Guardian of the Property of John Moldenschardt, Incompetent, Appellee, v. Barbara MOLDENSCHARDT, a/k/a Barbara Koeppel, Appellant.
• Court: Iowa Supreme Court

Page 479

148 N.W.2d 479

260 Iowa 36

Viola Marie CLAEYS, Guardian of the Property of John Moldenschardt, Incompetent, Appellee, v. Barbara MOLDENSCHARDT, a/k/a Barbara Koeppel, Appellant.

No. 52353.

Supreme Court of Iowa.

Feb. 7, 1967.

Harold C. Lounsberry, Davenport, for appellant.

Richard L. Stevens, Davenport, for appellee.

RAWLINGS, Justice.

Defendant sought to vacate a default judgment entered against her. This relief was denied by the trial court and she appeals.

Plaintiff was appointed guardian of John Moldenschardt, incompetent, and February 26, 1963, filed a petition alleging substantially as follows:

Her ward, a man about 77, had accumulated money and real estate but in recent years failed mentally. Sometime in 1959 he met defendant, about 48, and fell prey to her wiles and demands. By artifice she secured from the incompetent all his savings plus $9600 which he had borrowed, and title by deed to a 183 acre farm owned by him. Upon appointment of plaintiff guardian, defendant demanded access to a residence owned by the ward in DeWitt. When this was refused she padlocked the house. As a result the service lines froze and broke, causing water to escape, resulting in damage of $560 to the premises. That the ward had also been deprived of the use of or income from the DeWitt property at a loss of $40 per month.

Plaintiff prayed an accounting for all money received from the ward by defendant; that she be compelled to pay over or refund all sums due the ward; deed to the farm property be cancelled of record; plaintiff have an accounting for all rents and profits received by defendant from the farm; judgment against defendant for damage to the house in DeWitt, plus loss of its rental value; and for other equitable relief.

As best we can determine from the record the factual situation, in chronological order, is substantially as follows:

Original notice with copy of petition attached was personally served on defendant March 22, 1963.

Defendant filed no appearance and failed to move or plead.

August 2, 1963, plaintiff filed motion for default.

August 7, 1963, defendant was adjudged to be in default. The trial court then ordered hearing be held August 27, 1963, for the purpose of allowing plaintiff to prove her claim.

The record does not so disclose but counsel for both parties agree and argue the trial court also directed a copy of the August 7 order be mailed to Thomas M. Kelly, Jr., an attorney. No reason for this is given. However, it appears Kelly was originally contacted by defendant, had discussed this case with counsel for plaintiff, and represented defendant in other legal proceedings arising out of the dealings between defendant and the ward.

December 10, 1963, the court heard plaintiff's proof, defendant not appearing.

January 22, 1964, plaintiff was granted judgment against defendant for the total sum of $14,770.55, and concellation of deed to the farm property.

November 24, 1964, defendant filed petition under rule 252, R.C.P., to vacate the default judgment and decree.

December 17, 1964, plaintiff filed answer to defendant's petition.

January 11, 1966, at time of hearing on defendant's action she tendered an amendment to her petition. Leave to amend was denied.

Evidence was then presented by both parties. January 27, 1966, an order was entered denying defendant's petition to vacate plaintiff's judgment.

Defendant now contends the trial court wrongfully refused to set aside the default judgment and asserts five statements of error relied on for reversal.

I. We have held a petition to vacate a judgment is triable at law, not in equity, and the findings of the trial court on a dispute of fact is entitled to the same weight as a jury verdict. It is not triable de novo on appeal. Windus v. Great Plains Gas, 255 Iowa 587, 593, 122 N.W.2d 901, and Gaynor v. Gaynor, 246 Iowa 1039, 1042, 70 N.W.2d 923.

II. The two points of error first asserted by defendant are interwoven and will be so considered.

She claims the trial court had no jurisdiction to enter judgment by default which awarded relief not embraced within the issues presented by plaintiff's petition, and erred in refusing permission to accordingly amend her petition to vacate. We find no merit in these contentions.

By her petition defendant specifically invoked rules 252 and 253, R.C.P.

Under these rules a judgment may be vacated or modified for any one or more of five specified causes, provided the case is begun within one year from date of judgment.

Defendant's action was commenced about ten months after entry of the challenged judgment. However, the amendment was not tendered until approximately two years later, just before hearing on her case was to begin.

Furthermore this instrument is clearly designated an amendment to the original petition which as paragraph 5 is specifically denominated an Additional ground in support of her petition to vacate. See rule 89, R.C.P.

By this attempted amendment defendant asserts the court had no jurisdiction to allow the remedy granted since plaintiff did not demand recovery on the basis of fraud and deceit. See rule 235, R.C.P.

But defendant overlooks the fact that by her amendment she sought redress under rule 252, which does not include as a cause for vacating judgment, want of jurisdiction to grant the relief accorded.

We find rule 252 inapplicable where the basis for relief asserted is that the court acted without or in excess of its jurisdiction. See Kern v. Woodbury County, 234 Iowa 1321, 1324, 14 N.W.2d 687.

To hold otherwise would be contrary to the terms, intent and meaning of the rule. It would also lead to needless confusion and uncertainty.

III. By so holding we do not mean there is no remedy as to avoid judgment.

In Halverson v. Hageman, 249 Iowa 1381, 1387, 92 N.W.2d 569, this court defined and then held a void judgment subject to attack at any time without resort to rules 252 and 253. In so doing we determined a proceeding to set aside such a judgment is in effect an independent action which may be so commenced or filed in the case in which the judgment under attack was entered.

But defendant did not, by her proposed amendment, undertake an independent action. Rather she attempted to mend her hold under rule 252 by asserting a new and independent action upon a basis foreign to that rule under the guise of an amendment. This she could not do.

IV. There is another factor to be considered in connection with the trial court's refusal to entertain defendant's tendered amendment which is actually determinative of the issue.

The proposed amendment came about two years subsequent to the filing of defendant's petition, long after plaintiff had answered.

In that regard we have held permission to amend is a matter resting in the sound discretion of the trial judge, the allowance of an amendment being however the general rule. See rule 88, R.C.P., and Brown v. Guiter, 256 Iowa 671, 674--675, 128 N.W.2d 896.

On the other hand this court has several times found no abuse of discretion in denying leave to belatedly file an amendment. Brown v. Guiter, supra, and citations.

We find no abuse of discretion by the trial court in refusing to permit the late amendment.

V. Defendant next claims the trial court erred in holding a misunderstanding with her attorney as to employment of the latter did not constitute unavoidable casualty or misfortune.

This presupposes a misunderstanding and requires further exploration of the factual situation.

The record discloses defendant, on being served with original notice, went to see Attorney Kelly. He agreed to represent her, conditioned upon payment of a fee in advance. No appearance, motion or pleading was filed by him on behalf of defendant. About July 8, 1963, after receiving the notice of hearing to be held August 7, 1963, he sent a letter to defendant stating in substance a communication had been sent her May 8, 1963, relative to actions pending, and asked that she advise him as to her intentions, cautioning time had run out and plaintiff's attorney could take default judgment.

At this point there is some conflict in the evidence.

Defendant testified to the effect she borrowed $500 and paid Kelly $250, offering no receipt to support this claim. She did produce a statement from the loan company showing this sum had been borrowed. According to her testimony Kelly agreed to go ahead with the case and she first learned of the default November 9, 1964, when served with papers at her home. This is disputed.

Attorney Kelly stated he represented defendant in an annulment action. He had conferred with plaintiff's attorney several times but did not file any appearance, motion or pleading because defendant paid him nothing, and he could not determine from their conversations whether she did or did not want to contest plaintiff's case.

The trial court found no money had ever been paid by defendant to Kelly in connection with the action commenced by plaintiff, he was not negligent, and defendant could have avoided default by paying the fee requested.

From these findings the trial court concluded, in force and effect, defendant failed to show unavoidable casualty or misfortune which prevented her from defending.

In support of her claim the court erred in so holding, defendant cites and leans rather heavily on Edgar v. Armored Carrier Corp., 256 Iowa 700, 128 N.W.2d 922; Lunt v. Van Gorden, 225 Iowa 1120, 281 N.W. 743; Clarke v. Smith, 195 Iowa 1299, 192 N.W. 136; Barto v. Sioux City Electric Co., 119 Iowa 179, 93 N.W. 268; and County of Buena Vista v. I.F. & S.C.R. Co., 49 Iowa 657. But these cases are of little or no benefit to defendant.

Edgar v. Armored Carrier Corp., supra, dealt only with rule 236, R.C.P., which is not here applicable. All other cases last above cited antedate adoption of our Rules of Civil Procedure and are of little or no value in the interpretation and application of rules 252 and 253, or are factually...