First Nat. Bank of Peterson v. Bourdelais

• Decision Date: 23 October 1899
• Parties: FIRST NAT. BANK OF PETERSON v. BOURDELAIS ET AL. (BOURDELAIS ET AL., INTERVENERS).
• Court: Iowa Supreme Court

109 Iowa 497

80 N.W. 553

FIRST NAT. BANK OF PETERSON

v.BOURDELAIS ET AL. (BOURDELAIS ET AL., INTERVENERS).

Supreme Court of Iowa.

Oct. 23, 1899.

Appeal from district court, Clay county; W. B. Quarton, Judge.

Plaintiff, assignee of a promissory note executed by the defendants to one Le Clair in consideration of the rent of a certain farm, brought this action before a justice of the peace to recover the amount due upon said note; the note containing a clause giving jurisdiction to any justice of the peace not exceeding $300. Plaintiff sued out a landlord's attachment, which was levied upon certain chattels as the property of the defendants, and as subject to the landlord's lien. Matilda Dunn, a minor, by David Bourdelais, Jr., as her next friend, intervened, claiming that a certain mare and cow levied upon were her property. David Bourdelais, Jr., intervened, claiming that eight hogs, one span of mules, wagon, and set of double harness levied upon were his property. The plaintiff answered these petitions, denying that either of said interveners was the owner of any of said property. The trial proceeded as between the plaintiff and interveners, and, after the evidence of David Bourdelais, Jr., was taken, the plaintiff amended its answer, alleging that intervener David Bourdelais, Jr., was a tenant in common with the defendants, the lease having been made by defendants for the use and benefit of said intervener and for themselves, and that the property claimed by him was kept, used, and supported on the leased farm. Interveners moved to strike said amendment upon the grounds that it was immaterial, incompetent, and not a defense, which motion the justice overruled, and to this motion the interveners excepted. Thereupon an entry as follows was made in the justice's docket: “Moved to strike amendment out. Motion was overruled, and interveners excepted. The amendment to answer was allowed to stand, and interveners refused to further proceed, and confessed to judgment of dismissal of petitions of intervention and an order for the sale of property in dispute. An order is thereupon made for sale of all attached property, and judgment, David Bourdelais, Jr., for costs of the proceedings, taxed at $4.90.” Interveners appealed to the district court, and plaintiff moved to dismiss the appeal on the grounds that the transcript showed that the judgment dismissing the petitions was by confession and agreement of interveners, and because they refused to prosecute their claims as interveners. The interveners moved for a rule on the justice to correct his docket by striking out that part quoted above so far as the same relates to interveners, and make it apply alone to the defendants, “for the reason that the same is wrong, and a mistake, and should not be there, and no such confession or consent ever took place”; also, that their attorney had no power or authority to consent to such a judgment. A number of affidavits were filed in support of interveners' motion, and the affiants and others were examined before the court in support of and in resistance to said motion. Interveners' motion to correct the record was overruled, and plaintiff's motion to dismiss the appeal was sustained. The trial judge certified that this cause is one in which an appeal should be allowed, stating as the question upon which the opinion of this court is desired whether interveners' counsel, employed to represent them on the trial, had authority, in the presence and hearing of his clients, to confess to the judgment as entered in the justice's docket, without special authority from his clients. Interveners appeal. Reversed.Cory & Bemis, for appellants.

GIVEN, J.

1. There being no appearance for appellee, the case is submitted upon appellants' abstract and argument alone. A certificate by the trial judge was not necessary to entitle interveners to appeal. The controversy is between the plaintiff and each intervener, and involves only the...