First Nat. Bank of Titonka v. Casey

• Decision Date: 14 December 1912
• Citation: 138 N.W. 897,158 Iowa 349
• Parties: FIRST NAT. BANK OF TITONKA v. CASEY ET AL.
• Court: Iowa Supreme Court

158 Iowa 349

138 N.W. 897

FIRST NAT. BANK OF TITONKA

v.CASEY ET AL.

Supreme Court of Iowa.

Dec. 14, 1912.

Appeal from District Court, Kossuth County; A. D. Bailie, Judge.

Action on promissory notes resulted in a verdict being directed against defendant Halvorson and judgment entered thereon. He appeals. Reversed.Oliver Gordon, of Forest City, and Quarton & Hastings, of Algona, for appellant.

E. A. & W. H. Morling, of Emmetsburg, and E. V. Swetting, of Algona, for appellee.

LADD, J.

One John Casey and Carl Halvorson formed a partnership, which operated a meat market in Titonka in September, 1909. After a short time Halvorson sold his interest in the business to his brother, L. Halvorson, who became a partner of Casey in the business. About August 1, 1910, the latter sold out to the defendant, who conducted the business in his own name until October 3d following, when the building containing the market was burned down. The partnership composed of Casey and defendant was indebted to the plaintiff on notes executed to cover moneys used in carrying on the business, and this action was brought to recover the amount due thereon. Judgment by default was entered against Casey. Halvorson suggested his minority, and that his mother, Emma Halvorson, had been appointed his guardian August 28, 1900, and prayed that she be permitted to defend. Thereupon the guardian filed an answer putting in issue the allegations of the petition with respect to the indebtedness, and alleging that the defendant would not attain his majority, until December 19, 1911, and praying that he go hence with his cause. The plaintiff in its reply alleged that the moneys were actually advanced to defendant for which the notes were executed while he was engaged as an adult in operating a meat market at Titonka in partnership with Casey.

[1] 1. Notice of appeal served October 25, 1911, recited that the defendant L. Halvorson appealed, and was signed by counsel for appellant as “attorneys for defendant.” One of the grounds of the motion to dismiss is that the appeal should have been prosecuted by the guardian, instead of defendant. Section 3480 of the Code requires an action by a minor to be brought by his guardian, or, if he has none, then by his next friend, and section 3482 that the defense of a minor must be by his regular guardian or one appointed to defend. But the court is not without jurisdiction in an action brought by a minor in his own name, even though the judgment may have been erroneous. Parkins v. Alexander, 105 Iowa, 75, 74 N. W. 769. Nor is the defense by guardian essential to the jurisdiction of the court, though a judgment against an infant in the absence of guardian, regular or ad litem, is erroneous. In re Estate of Strange, 131 Iowa, 583, 106 N. W. 631;Wise v. Schloesser, 111 Iowa, 16, 82 N. W. 439;Rice v. Bolton, 126 Iowa, 654, 100 N. W. 634, 102 N. W. 509;Harris v. Bigley, 136 Iowa, 307, 111 N. W. 432. The infant is the real party in interest, and, though suit should be brought or defended as prescribed in the statutes cited, the omission so to do is an irregularity rendering the judgment erroneous but not void and subject to correction by procedure defined in the Code. At the common law an infant was required to sue and defend by guardian. Later, by act of Parliament, he was permitted to act through his next friend also. Williams v. Cleaveland, 76 Conn. 426, 56 Atl. 851. And, though he might prosecute a writ of error by his next friend, yet if he did so in his own name, and there was a joinder in error, his disability was waived. McClay v. Norris, 9 Ill. 370. In Ramsey v. Keith (Ky.) 77 S. W. 693, an appeal was prosecuted by an infant, and the court denied a petition to dismiss on the ground that appellee by previously submitting a motion to affirm as a delay case had waived the objection that appellant was without capacity to sue. That the appeal was taken by the minor, acting for himself, instead of through the guardian, undoubtedly was irregular, but the court acquired jurisdiction thereby. Of course, he subsequently might have disaffirmed what he had done, but, instead, upon the filing of the motion to dismiss, which was long after he had attained his majority, he resisted the same, and thereby confirmed his action in taking the appeal. For these reasons, this ground for dismissal of the appeal should be denied.

[2] The other ground of the motion to dismiss is that notice of appeal was not served on Casey. He was a coparty, and must have been served with such notice, unless it can be said that a reversal of the judgment will not prejudicially affect him. Section 4111, Code; Clayton v. Sievertson, 115 Iowa, 687, 87 N. W. 412. Regardless of the issue as to Halvorson, Casey was liable as partner, and judgment was entered against him by default. This would not be affected by any ruling in the case against Halverson, and the only contingency in which prejudice might result from passing on the errors assigned in this case would be in the settlement of the affairs between Casey and Halvorson. But the judgment finally entered in this suit of plaintiff against Halvorson would not constitute an adjudication in any action between Casey and Halvorson for the adjustment of their partnership affairs. Possibly such judgment might be valuable as evidence in an action between Casey and Halvorson as tending to establish Halvorson's obligation as a member of the partnership; but, should the judgment in this suit finally be in Halvorson's favor, this would not be conclusive as between Casey and Halvorson. In the settlement of their relative obligations growing out of the partnership, the most that can be said, then, is that the ruling in this case might incidentally affect evidence to be used in possible litigation between Casey and Halvorson, but, as it would not be conclusive therein, it cannot be said to prejudicially affect the rights of Casey. In other words, if as a result of the ruling on this appeal judgment should be finally entered in favor of Halvorson, such judgment would not constitute an...