Claeys v. Moldenschardt, No. 52353

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

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.

[260 Iowa 38]

Page 481

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.

[260 Iowa 39] 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.

Page 482

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 [260 Iowa 40] 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.

[260 Iowa 41] 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...