Dunbarton Realty Co. v. Erickson
| Decision Date | 07 May 1909 |
| Parties | THE DUMBARTON REALTY COMPANY, Appellant, v. E. ERICKSON AND OTHERS, Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, SEPTEMBER 28, 1909.
Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.
ACTION in equity to quiet title to real estate. Twenty-seven different persons, claiming title to portions of the land in question, are named as defendants in plaintiff's petition, and the state of Iowa, also claiming title, makes itself a party by intervention. On trial to the court there was a decree for the plaintiff, under date of December 2 1907. On April 1, 1908, the state of Iowa by its counsel filed a petition for a new trial, upon grounds which will be more fully stated in the opinion. Later other defendants filed sundry petitions for new trial, the relief asked, and the grounds assigned therefor, being identical with those set forth in the petition of the state of Iowa. The several proceedings were consolidated and tried as one. A demurrer to the petitions was overruled, and plaintiff thereupon filed an answer. The trial court, having heard the evidence offered upon the issues thus joined, found the defendants entitled to a new trial, and entered an order to that effect. The plaintiff appeals. Reversed.
Reversed.
Edwin J. Stason, for appellant.
H. W Byers, Attorney-General, Jepson & Jepson, Milchrist & Scott, Hubbard & Burgess, J. L. Kennedy, E. P. Farr, J. C. McConkey, M. L. Sears and Sullivan & Griffen, for appellees.
Though not directly involved in this appeal, a brief statement of the nature of the issue presented in the original case will tend to a clearer understanding of the merits of the several propositions argued by counsel. At one time, more or less remote, the plaintiff or its grantors owned certain lots and blocks of land in Sioux City, near, but not directly bordering upon, the Missouri river, while the defendants (except the state of Iowa) owned the lands lying between those first above mentioned and the river shore. Thereafter, according to plaintiff's claim, the river by gradual and imperceptible movement encroached upon the shore at this point until the lands owned by said defendants and their grantors were completely submerged, and the waters of the river extended to the boundaries of the lands owned by the plaintiff, which thereupon became impressed with a riparian character. Some years later, as plaintiff further alleges, the river, by like gradual and imperceptible movement, receded from the new shore line thus established until the area formerly owned by the defendants was uncovered, and it is plaintiff's claim that, by virtue of the riparian character which had been impressed upon its lands as aforesaid, the title to the uncovered area became vested in itself as an accretion. It is the conflict between this claim and the opposing claims of the defendants, who insist that their title was not extinguished by the erratic movements of the river, which the action was brought to determine. The intervention of the state is based upon the theory that the title to the bed of the river is in itself, and that the land in controversy is not in any proper sense of the word an accretion to the lands of the plaintiff. These issues were tried in the district court, Hon. John F. Oliver, judge, presiding. The evidence consisted of oral testimony taken before the court, and preserved in shorthand by the official reporters W. E. Cody and C. C. Hamilton, the former doing the larger part of the work. There were introduced also a large number of maps, plats, and other documents bearing upon the respective claims of the parties. Counsel also stipulated and agreed as to many material undisputed facts; such stipulations and agreements being orally stated, and taken down by the reporter. Upon submission of the cause the court took its decision under advisement, and nearly one year later, December 2, 1907, entered its decree in plaintiff's favor. About this time, or shortly before, the reporter, W. E. Cody, became ill though he continued to attend to his work, in part at least, until about December 20, 1907, when it was found that his condition was of such serious character as to compel his relinquishment of business, and on March 10, 1908, he died. In January, 1908, the Attorney-General reported to the executive council the result of the trial in the district court, and was directed to take an appeal from the decree to the Supreme Court. On this order being made the local counsel for the state, and other counsel for defendants, undertook an inquiry into the condition of the record, and especially as to the preservation of the testimony, and it is alleged that the reporter's notes were not at the time to be found, but on inquiry of Judge Oliver he gave it as his recollection that they were properly certified. Soon afterward the notes were found, and it was revealed that they had never been certified. Mr. Cody's notes having been written in a hand peculiar to himself, no one could be found to translate them. The trial judge would not trust his memory to reproduce the oral testimony taken before him. No agreement or stipulation could be reached between the parties which would serve to supply or substitute the record thus lost or rendered unavailable. Thereupon petitions for a new trial were filed as hereinbefore stated. No appeal from the original decree was in fact taken by any of the defendants. Trial being had to the court it made and entered a finding in the following words: "That it is now, and has been at all times since the entry of the decree in these consolidated causes, impossible to substitute or supply the evidence upon which the consolidated causes were submitted and decided, with a fair degree of faithfulness to the original testimony and evidence." And on this finding a new trial was ordered, and plaintiff appeals.
The several propositions argued by counsel may be grouped and considered under two general inquiries: First, whether the relief granted to the appellees by the court below is justified upon statutory or constitutional grounds; and, second, whether, if such relief is not provided for by statute or Constitution, the granting thereof is still a matter within the court's inherent powers.
I. Under our practice act a party to an action in which an appealable order or judgment has been rendered may obtain a reexamination thereof at the same term, upon motion showing sufficient cause therefor, filed within three days. Code, sections 3755, 3756. Where the grounds for such relief are not discovered until after the term at which the judgment is entered new trial may be granted, upon petition filed within one year, for any of the following reasons: "(1) For mistake, neglect or omission of the clerk, or irregularity in obtaining the same; (2) for fraud practiced in obtaining the same; (3) for erroneous proceedings against a minor or person of unsound mind; (4) for the death of one of the parties before the rendition of the judgment; (5) for unavoidable casualty or misfortune preventing the party from prosecuting or defending; (6) for error in the judgment or order shown by a minor within twelve months after arriving at majority." Code section 4091. So far as we are aware, the trial court has no statutory authority to set aside or vacate a judgment or decree, duly entered and recorded at a prior term, other than is contained in the statute just quoted. If this provision be broad enough to include the case made by the appellees herein, it must be found in the fifth subdivision of the section, which authorizes the vacation of a judgment and the granting of a new trial "for unavoidable casualty or misfortune preventing the party from prosecuting or defending." A careful reading of this clause makes it very clear that this language has exclusive reference to matters occurring before the entry of the judgment sought to be vacated. Indeed its most obvious, though perhaps not its only, application is to cases where by some casualty or misfortune a defendant has been made to suffer default, or a plaintiff has been held in default for want of prosecution of his action. It is not every casualty or misfortune which justifies such relief, but only such as "prevents the party from prosecuting or defending." No such claim is presented in the case before us. All the parties were in court upon the original hearing, the plaintiff prosecuting, and the defendants contesting and defending, each step in the proceedings. The issues were submitted only after a full and complete trial, in which all parties had full opportunity to introduce every item of testimony which they believed to have any bearing upon the controversy. Surely it cannot be said that the death of Mr. Cody, occurring more than a year after the cause was tried and submitted, and three months after the entry of the decree was a casualty preventing these appellees from making their defense.
The identical question here raised was before this court in Loomis v. McKenzie, 48 Iowa 416, where, after an appeal in an equitable cause had been taken, it was found that all the written evidence upon which the cause had been tried was lost without fault on the part of the plaintiff who thereupon dismissed his appeal, and petitioned for a new trial. The petition was granted, and upon an appeal to this court the order was reversed. The ruling of the trial court was there sought to be sustained by reference to this same paragraph of the statute, on the theory that a loss of evidence after trial, thus preventing an effectual appeal, is an "unavoidable casualty or misfortune preventing the party from prosecuting or defending." That construction of the statute was approved by Adams, J., in...
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