Ferris v. Wulf

• Decision Date: 20 June 1933
• Docket Number: No. 41931.,41931.
• Citation: 249 N.W. 156,216 Iowa 289
• Parties: FERRIS v. WULF.
• Court: Iowa Supreme Court

216 Iowa 289

249 N.W. 156

FERRIS

v.WULF.

No. 41931.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Woodbury County; Miles W. Newby, Judge.

This is an action to recover damages for personal injury sustained by the plaintiff as the result of an alleged automobile accident occurring on or about the 22d day of July, 1930. A default judgment was entered, and defendant filed a motion to set the same aside, which motion was overruled. Defendant appeals.

Reversed.Jepson, Struble & Sifford, of Sioux City, for appellant.

E. J. Fribourg, of Sioux City, for appellee.

ALBERT, Justice.

Shortly after the accident, a claim for damages was taken up on behalf of the plaintiff by E. J. Fribourg, and the defendant's interest was taken charge of by the firm of Hays, Baron & Matthews. Negotiations looking to a settlement of this claim were carried on between these attorneys until December, 1931, when the firm of Hays, Baron & Matthews informed Fribourg that they no longer represented the defendant; whereupon action was commenced in the Woodbury district court and original notice was served on December 31, 1931, for the January, 1932, term of said court. At said term, Naglestad, Pizey & Johnson appeared for the defendant, and on January 21, 1932, the plaintiff filed an amended and substituted petition.

On March 7, 1932, the cause was assigned for hearing on March 14th following. The case was not tried when reached in the assignment because the defendant was attending the funeral of a sister at Arcadia, Iowa. The defendant, however, filed an answer in the case on March 23, 1932. In the interim Naglestad was injured in an automobile accident; he being a member of the firm who had charge of the case. The case was reached for trial on the morning of April 26th. On the afternoon of April 25th, the bailiff in Judge Newby's court called the Naglestad office and informed them that the case would be on trial the next morning. Naglestad had not recovered from his injuries received in the accident, and in a conference between the members of the firm it was determined they would withdraw from appearance in the case. Whereupon Naglestad telephoned to the wife of the defendant, and she advised him that her husband was working and would not be home until about 1 o'clock in the morning. (Defendant was employed in the switching crew of the Chicago, Milwaukee & St. Paul Railway at Riverside in Sioux City.) He told her the case would come on for trial at 9 o'clock in the morning and to inform her husband that he should come to the Naglestad office early the next morning. Naglestad thereupon advised the court, through its bailiff, of the condition, and that his firm was withdrawing its appearance in the case. The defendant appeared the next morning at the Naglestad office, and was informed that on account of the injuries that Naglestad had received-of which defendant knew nothing until he appeared at the office-the firm was withdrawing from the case and he should employ another attorney to look after it; also advised him that the court was then ready to proceed with the trial. The defendant proceeded to the office of Jepson, Struble & Sifford and laid the facts before C. N. Jepson, a member of that firm, and, after a brief outline of the situation, Jepson agreed to try the case; whereupon he called the court bailiff and Fribourg, plaintiff's attorney, and was advised that default had been entered about 10 o'clock on April 26th. Upon being advised of the situation, on the next day a motion and affidavits were filed by the defendant to set aside the default.

On June 23, 1932, the court overruled the motion to set aside the default, and on July 9th following judgment was entered against the defendant for $355, with interest, and it is from the ruling of the court in overruling the motion to set...