Ennis v. Fourth St. Bldg. Ass'n of Clinton
| Decision Date | 28 May 1897 |
| Citation | 102 Iowa 520,71 N.W. 426 |
| Parties | ENNIS v. FOURTH ST. BLDG. ASS'N OF CLINTON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Clinton county; P. B. Wolfe, Judge.
On the 1st day of April, 1895, plaintiff filed this petition to set aside a decree rendered October 30, 1894, and for new trial on the ground of unavoidable casualty and misfortune. Defendant demurred to the petition, which demurrer was sustained, and, the plaintiff failing to further plead, judgment was rendered against him, from which he appeals. Reversed.Hayes & Schuyler and T. W. Hall, for appellant.
Walsh Bros., for appellee.
1. The petition shows that this defendant, as plaintiff, commenced an action at the September term, 1894, against Margaret and James Ennis, to foreclose a mortgage executed by them to this defendant on certain lots in the city of Clinton; that at that time this plaintiff had a valuable subsisting mortgage on said lots for $2,000, executed and delivered to him by said Margaret and James Ennis, on the 20th day of April, 1891, which was duly recorded on the 10th day of July, 1891; that on the 25th day of August, 1894, he was made a party to said action, as having some interest in or lien upon said lots which was alleged to be junior and inferior to the mortgage of this defendant; that, upon being served with notice, this plaintiff employed one Richard F. Price, a practicing attorney at law and a resident of Clinton, to prepare and attend to his defense in that case; that said attorney prepared an answer, setting up plaintiff's mortgage, and denying that defendant's mortgage was superior thereto, which answer was filed on the 5th day of September, 1894, and to which no reply was ever filed; that said attorney agreed to appear and defend said action, to keep this plaintiff advised of all proceedings therein, and to notify him when he would be needed for the purposes of the trial or any proceeding therein, and that plaintiff fully relied upon said Price as his attorney, and upon said arrangements; that about the 25th day of October, 1894, said Price, unknown to the plaintiff, absconded, and his whereabouts have not since been known; that on the 30th day of October, 1894, in the absence of this plaintiff and of his said attorney, without the plaintiff's knowledge, and without any evidence being offered as to which of said mortgages was prior, and without the attention of the court being called to that issue, decree was entered foreclosing this defendant's mortgage, and making plaintiff's mortgage subject thereto; that execution was issued on said decree; and that plaintiff did not know of the absence of...
To continue reading
Request your trial