Dickson Fruit Co. v. Dist. Court of Sac Cnty.
| Decision Date | 10 May 1927 |
| Docket Number | No. 38208.,38208. |
| Citation | 203 Iowa 1028,213 N.W. 803 |
| Parties | DICKSON FRUIT CO. v. DISTRICT COURT OF SAC COUNTY ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Certiorari from District Court, Sac County; J. A. Henderson, Judge.
Proceeding in certiorari to test the validity of an order entered by the respondent court setting aside a default and judgment in an action in which the petitioner herein was plaintiff. Writ annulled.Whitney & Whitney, of Storm Lake, for petitioner.
DE GRAFF, J.
This is a proceeding in certiorari. The writ issued from this court. The return discloses that the petitioner, plaintiff in the original action, commenced suit December 24, 1920, against certain defendants for the value of merchandise sold and delivered to said defendants. The venue of the action was in the district court of Iowa in and for Sac county. The original notice was personally served upon all the defendants named in said action on the 17th day of January, 1921. All the defendants entered their appearance and filed verified answers on March 7, 1921. The instant matter concerns only the defendant W. H. Terrill.
Trial notices were filed by the plaintiff on April 21, 1921, and on October 5, 1921, and the cause was noted for trial on the printed bar docket. On October 26, 1921, judgment was entered against all the defendants in the sum of $549.94. The term of court during which the judgment was entered adjourned sine die December 12, 1921.
Nothing further was done in this cause until September 14, 1926, when a motion was filed by W. H. Terrill, a judgment defendant, to set aside the default and judgment theretofore entered, and for the reason, as recited in said motion, that said judgment “was rendered without authority and not within the jurisdiction of the court, for that, the petition in said cause having been filed on the 24th day of December, 1920, the defendant W. H. Terrill appeared by his attorney, Malcolm Currie, and filed the answer on March 7, 1921; that afterwards, the said answer creating an issue of fact, the case was never assigned for trial to a jury nor the case called for that purpose; that the judgment entry was signed perfunctorily when presented by the attorneys for plaintiff.” The affidavits of said attorney and W. H. Terrill were attached to said motion.
The attorney alleges that he was employed as attorney by the defendants in said cause; that he drew and filed the answers to the petition; that, after the filing of said answers, the said cause was not assigned for trial and no date was ever fixed for trial; that he was never notified by any person that the plaintiff had the cause assigned for trial; that the answers were filed in good faith and with the intention at all times to try said cause to a jury; that he did not know until the date named in the affidavit (September 13, 1926) a default judgment had been rendered in said cause, and that in his opinion the defendants had a good defense to the claim of plaintiff as alleged in its petition. The affidavit of the defendant Terrill is, in substance, to the same effect, and further states that he was never a member of the defendant copartnership named in the action, and that he never was in any way liable for the purchase of the merchandise, the price of which was sought to be recovered in the action, and that he relied upon his counsel in all matters concerned with said action.
On September 14, 1926, an order was enteredby the respondent court, directing that a copy of the motion and of the affidavits in question be served upon the attorneys for the plaintiff (petitioners herein), and further ordered that, upon service had, by mail, of the order upon said attorneys for said plaintiff, “the plaintiff shall show cause within five days why the application of the said defendant W. H....
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