Ft. Dodge Lumber Co. v. Rogosch

• Decision Date: 07 April 1916
• Docket Number: 30618
• Citation: 157 N.W. 189,175 Iowa 475
• Parties: FORT DODGE LUMBER COMPANY, Appellee, v. L. H. ROGOSCH et al., Appellants
• Court: Iowa Supreme Court

157 N.W. 189

175 Iowa 475

FORT DODGE LUMBER COMPANY, Appellee, v. L. H. ROGOSCH et al., Appellants

No. 30618

Supreme Court of Iowa, Des Moines

April 7, 1916

Appeal from Webster District Court.--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.

Reversed, with directions.

Files & Maher, for appellants.

Burnquist & Joyce, for appellee.

PRESTON J. EVANS, C. J., DEEMER and WEAVER, JJ., concur.

OPINION

PRESTON, J.--

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 sub-contractor, filed a statement with the clerk for a 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:

"This case is settled, and will be disposed of in the following manner, to wit:

"The parties hereto agree that G. Proeschold and Gus Bienz are agreed upon to examine the Rogosch house referred to in plaintiff's petition, and for the construction of which the lumber was furnished by the Fort Dodge Lumber Company, and make a report showing the amount of lumber and plaster of all kinds used in the construction of said house as nearly as the same can at this time be determined, including all necessary and reasonable waste. When said report is made, the price of said lumber and plaster furnished by plaintiff shall be estimated at the market price thereof at the time the house was under construction. The defendants shall pay to the plaintiff any balance remaining unpaid, after allowing credit to defendants for all payments heretofore made on said lumber to plaintiff. If the report shows that there is a balance owing to plaintiff, defendants shall pay the costs of this proceeding, and if the report shows that no balance is owing to plaintiff, then plaintiff shall pay the costs hereof. In the event that it is determined that there is an amount due plaintiff, said sum so due shall draw interest at the rate of six per cent. per annum from the first day of May, 1913." (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:

"We have inspected and examined the home owned by defendants, for which lumber and plaster were furnished by the Fort Dodge Lumber Company in the years 1912 and 1913, and have made a list of all lumber and plaster which we found in said building, which said list is hereto attached and made a part hereof, having been heretofore filed in the office of the clerk of the district court. We further certify that we have gone over said list and have accurately estimated the price of said lumber and plaster in said building furnished by plaintiff at the market price thereof in the fall and winter of 1912 and 1913 in Fort Dodge, Iowa, and find that the reasonable price of said lumber and plaster in said house furnished by plaintiff is, and was at said time, in the sum of $ 1,450."

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 on said case, 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 without provision's having been specifically made for such an entry in the stipulation, especially since there was no statutory submission to arbitration.

As before stated, another ground of the motion was that plaintiff had no lien, but this point is...