Clarke v. Smith
| Decision Date | 06 March 1923 |
| Docket Number | No. 35233.,35233. |
| Citation | 192 N.W. 136,195 Iowa 1299 |
| Parties | CLARKE v. SMITH ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clinton County; D. V. Jackson, Judge.
Action in equity to vacate and set aside a judgment on default, entered against the plaintiff in favor of the defendant Smith, and to enjoin the defendant City National Bank from paying to the sheriff or clerk of the district court any funds belonging to plaintiff in its hands on garnishment proceedings to satisfy said judgment. The trial court granted the relief as prayed in plaintiff's petition, and entered decree accordingly. Defendants appeal. Affirmed.E. L. Miller, of Clinton, for appellants.
John E. Purcell, of Clinton, for appellee.
DE GRAFF, J.
Plaintiff seeks to put himself in statu quo, and this appeal concerns itself with the correctness of the ruling of the trial court in granting the relief to which plaintiff claims he is entitled. It appears that on December 1, 1921, a default judgment was entered against the plaintiff herein, in favor of defendant Smith, in the sum of $750, with interest and costs. In that action Smith (defendant herein) alleged in his petition that $750 was due him from Clarke on the sale of an automobile. After suit was instituted, Clarke retained one W. H. Carroll as his attorney to defend the action. The attorney failed in this particular, and, by reason of that failure, judgment by default was entered. Clarke now seeks to have that judgment set aside, and it is alleged in the instant petition that, “through the unavoidable casualty of the said W. H. Carroll in failing to enter a plea on behalf of said Clarke and without the said Clarke having knowledge that the said W. H. Carroll had so failed to file said plea” a default judgment was entered; that “by the failure of the said W. H. Carroll to enter said plea on behalf of Clarke he was prevented from defending in said action, in which he had and has a good, just, and meritorious defense, in that on or about February 16, 1921, said Clarke entered into an oral contract with the said Smith by which he agreed to sell and deliver to said Smith a certain Oldsmobile automobile, and that on that day, pursuant to said contract, the said automobile was sold to said Smith for the sum of $750, and that title to said car passed and that the sale was completely consummated; that subsequently, about four weeks later, said car, while in possession and ownership of said Smith, was stolen,” and that said Smith predicated his action, in which said judgment by default was entered, for the recovery of the $750 so paid for said automobile.
[1] The evidence quite satisfactorily shows that the attorney employed by Clarke to defend in the original action utterly failed to give the matter any attention, and that, due to oversight and lapse of memory on his part, caused the judgment by default to be entered. Carroll himself testified:
It further appears that the attention of Attorney Carroll was called to the case in Judge Wolfe's office some time prior to the entering of the default. At that time Carroll told Judge Wolfe:
Carroll promised in a later conversation with Attorney John Wolfe that he would phone Mr. Clarke to ascertain whether or not he was in the case. He forgot to do this. He never obtained a copy of the petition until after the judgment was obtained, although he was granted 10 days to plead, as shown by the court record, but he had no personal recollection of that event.
[2] The facts are not in material dispute, and under the facts the plaintiff is not chargeable, unless it may be said that the default was entered by reason of such negligence on the part of the attorney that the client is bound. Clearly it is a case of mistake or...
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Newell v. Tweed, 47470
...230 Iowa 526, 529, 298 N.W. 658. The sufficiency of the showing rests largely in the discretion of the trial court. Clarke v. Smith, 195 Iowa 1299, 1302, 192 N.W. 136; Bossenberger v. Bossenberger, 210 Iowa 825, 827, 229 N.W. 833. The setting aside of a default by a trial court and the gran......
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Claeys v. Moldenschardt
...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. B......
- Clarke v. Smith