Ft. Dodge Lumber Co. v. Rogosch
Decision Date | 07 April 1916 |
Docket Number | No. 30618.,30618. |
Citation | 157 N.W. 189,175 Iowa 475 |
Parties | FT. DODGE LUMBER CO. v. ROGOSCH ET AL. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; R. M. Wright, Judge.
This is an appeal from the ruling of the trial court denying the motion to set aside a stipulation and judgment. The appeal is from such motion. Upon the hearing of the motion, it was overruled, and the defendants appeal. Reversed.Files & Maher, of Ft. Dodge, for appellants.
Burnquist & Joyce, of Ft. Dodge, for appellee.
[1] The case was started in equity for judgment against defendants and to foreclose a mechanic's lien; but, the appeal being from the order of the court denying the motion, the case is not triable de novo here. There was no decree of foreclosure entered, but simply a judgment against defendants. The motion in the lower court raised but three questions, and the grounds thereof, briefly stated, are as follows: (1) That the stipulation of settlement was not authorized by the defendants. (2) That the persons appointed by said stipulation did not follow its directions. (3) That plaintiff had no lien upon the premises. The third proposition is not argued, and there is but little controversy as to the first. The real point in the case is as to the second, although some other questions are argued as though they had been properly raised in the lower court, or are such that they may be raised here for the first time.
The defendant Mrs. Rogosch is the owner of the real estate described in the petition. In 1912, defendants entered into an oral contract with a firm of carpenters, Anderson & Woodbury, by which the carpenters agreed to furnish materials and construct for defendants, according to specifications, a dwelling house on the lots described, for the contract price of $1,283, and the residence was constructed. A part of the material for the building was furnished by plaintiff and was purchased by the carpenters. The defendants paid plaintiff $800 at one time on behalf of the contractors. On February 4, 1913, plaintiff, as a subcontractor, filed a statement with the clerk for mechanic's lien. March 7, 1913, plaintiff filed its petition to foreclose the lien. An answer was filed by defendants, and on September 11, 1914, when the cause was about to be reached for trial, the attorneys for plaintiff and defendants, and in the presence of one of the defendants, executed the following stipulation:
(Signed by the attorneys for the respective parties.)
The attorneys acting for defendants at that time were Mitchell & Fitzpatrick. It seems that the two persons named as so-called arbiters were named by Mr. Rogosch, the defendant, who was present. The cause then awaited the report of the persons so appointed, who went to the premises to inspect the house. The defendants joined with them, showed them through the house, and showed them the plans and specifications. They told them what materials in the specifications were not furnished by plaintiff, and such items were left out of the report. A report showing the amount due as figured was filed with the clerk September 17, 1914, and, not being in proper form, a supplemental report signed by the persons named in the stipulation was filed on September 19th. Defendants testified that on that day, as soon as they heard what had been done, they informed Mr. Mitchell, their attorney, that they would not carry out the stipulation, and he told them, in substance, that he would not act for them further, and to get another attorney. The reports give a list of lumber and materials, and recite:
Plaintiff's attorneys saw the defendants, but did not take judgment against them until October 7, 1914, which was 18 days after the stipulation was filed, and about that length of time after Mr. Mitchell had told them to procure another attorney.
The substance of the judgment and decree entered finds and determines that the court has full jurisdiction over the parties and the subject-matter of the action, and further:
“The court, proceeding to a hearing upon said cause, finds and determines that this cause was settled by stipulation entered into by and between all parties hereto.”
And a copy of the stipulation is set out in the judgment and decree. The judgment and decree further recites the further proceedings and the report, and that $800 had been paid upon the account, and further that there was the sum of $650, with interest, still due, and judgment was entered therefor.
On October 24, 1914, defendants filed their motion to set aside the stipulation and judgment rendered by the court upon the report for the reasons heretofore briefly stated. The motion was supported by affidavits, and there was a resistance thereto by plaintiff, and witnesses were called and testified in open court upon the issues raised by the motion.
The assignments of error are: First. That the so-called arbitrators failed to proceed under the terms of the stipulation. Second. That the judgment was entered against defendants at a time when they had no attorney. Third. That the stipulation itself contains no provision for judgment upon the report, and did not provide for the filing of said report in any court, and that by the terms of the stipulation itself the case had been settled and that the original case no longer existed; and, further, that the court had no jurisdiction to enter judgment...
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