Fred Andres & Co. v. Schlueter
| Decision Date | 24 November 1908 |
| Citation | 118 N.W. 429,140 Iowa 389 |
| Parties | FRED ANDRES & COMPANY v. HENRY W. SCHLUETER and ILLINOIS SURETY COMPANY, Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. JESSE A. MILLER, Judge.
JUDGMENT for $ 20,171.95, as balance of account due plaintiff for cut stone furnished the defendant Schlueter under contract having been rendered against said defendant on his failure to appear and defend, and against the Illinois Surety Company as the surety for Schlueter on a bond to discharge an attachment, the judgment defendants filed their separate motions to set aside said judgment on the ground that there was a good defense to plaintiff's cause of action, which without negligence on the part of the judgment defendants had not been presented to the court before the rendition of judgment. The motions were separately overruled, and each of the defendants appeals.
Affirmed.
Hopkins, Peffers & Hopkins and Read & Read, for appellants.
Henry & Henry, for appellee.
The judgment which appellants asked to have set aside on the ground of unavoidable casualty or misfortune preventing the defendant from defending (see Code, section 4091, par. 5) was rendered on September 20, 1907, upon failure of Schlueter, who was the sole defendant of record in the action, to appear after the issues were made up presenting an admission by said defendant of plaintiff's cause of action and an affirmative defense and counterclaim. The same judgment was rendered also against the Illinois Surety Company at the same time as surety on a bond given by Schlueter to discharge attachments levied on property in the action. Such a judgment without making the surety a party to the action or giving him notice that such judgment is to be rendered is provided for by Code, sections 3907, 3908. On the 27th of the same month the two judgment defendants filed separate motions to set aside the judgment, which motions were supported and resisted by evidence taken in open court and by affidavits, and were overruled. As the separate appeals from these rulings present substantially the same questions and involve the same state of facts, they may properly be considered together.
I. Some matters of a preliminary nature may first be considered before reaching a discussion of the merits of the showing made by defendants to have the judgment set aside. In the first place, the Illinois Surety Company was not a surety for Schlueter with reference to the original indebtedness, and much that is said in the printed argument, and also in the oral argument by counsel for that company beyond the points made in the printed brief, as to the rights of sureties, has no application to the liability of the surety company on the bond given to discharge the attachment. For instance, it is contended that under Code, section 3779, the judgment should have recited the order of liability of the principal and surety, so that the property of the principal might be first exhausted under the provisions of Code, section 3966, before the property of the surety was resorted to. But plainly these provisions have reference to the relation of principal and surety to the original indebtedness, and have no application under Code, sections 3907, 3908, providing for the entry of judgment against the surety on a bond to discharge an attachment.
The contention that the court was without jurisdiction to enter judgment against the Illinois Surety Company without notice to it, and an opportunity for it to present any grounds of release of liability which it may have had, may be answered in the same way. The bond was conditioned as provided by the statute on the performance and satisfaction by the principal of any judgment which might be rendered against him in the action. There can be no question as to the constitutional power of a court to enter judgment against a surety without notice where the surety has by a contract of record consented that judgment shall be so entered. McConnell v. Poor, 113 Iowa 133, 84 N.W. 968. The principle involved is analogous to that applied in sustaining a judgment rendered under a power of attorney authorizing a creditor to have judgment entered in a court of record on the default of the debtor to pay his obligation, and we have held that while our statute does not authorize confession of judgment under warrant of attorney, yet that a judgment entered in another State where such practice is authorized is entitled here to full faith and credit. Cuykendall v. Doe, 129 Iowa 453, 105 N.W. 698.
As our statute does provide for such a bond as that in question, in pursuance of which judgment is to be entered against the surety without further proceedings, there can be no question, we think, as to the validity of such judgment as against any defense which might have been interposed by the original debtor prior to the rendition of the judgment against him. The holding in Bedwell v. Gephart, 67 Iowa 44, 24 N.W. 585, that a surety on a bond for the release of attached property may be discharged by the action of the attachment creditor in releasing his lien upon the property to the detriment of the surety on the bond, has no application here, for the obligation of surety in the one case is entirely different from that in the other. The bond in this case provided for the entire suspension of any proceedings by attachment on the condition that the surety should discharge the judgment rendered against the principal, and clearly the surety could have no right to question the validity of the judgment on any ground which might have been interposed by way of defense before the judgment was rendered. If the judgment was procured by fraud or collusion, or was void for want of jurisdiction over the principal defendant, of course the surety on the bond could resist the enforcement of the judgment as against him. But this surety agreed for a money consideration to satisfy any judgment that should be rendered against his principal, and thereby secured the relinquishment by plaintiffs of their remedy by attachment, and can not therefore be heard to question the correctness of the judgment entered. This surety accepted as one of its risks the failure of the principal defendant to successfully interpose any defense which he had to plaintiff's claim prior to the rendition of judgment against him, and is concluded by the judgment as rendered.
The further contention for the surety company that judgment should not have been rendered against Schlueter upon default without proof of the amount of plaintiff's damage as provided in Code, section 3791, is also unfounded. That section relates to a default for want of pleading. (See Code, section 3788.) In this case there was a pleading filed by defendant Schlueter, admitting plaintiff's cause of action, but tendering an affirmative defense and a counterclaim. On failure of defendant to appear at the trial and introduce any evidence in support of the affirmative defense or the counterclaim, the court was authorized to enter judgment on plaintiff's admitted cause of action without other evidence. Under such circumstances there was no occasion for the assessment of damages either by the court or by a jury. Questions as to irregularity in the entry of a judgment not going to the jurisdiction of the court could not in any event be raised by the surety company, but as it is contended that we have before us also appeals by Schlueter and the surety company from the judgment as originally entered against them, we have thought it best to dispose of the objection raised without taking the time to determine whether such objection has been properly raised either in behalf of the surety company or Schlueter.
II. The...
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