Gray v. Bricker

• Decision Date: 08 February 1918
• Docket Number: 31359
• Citation: 166 N.W. 284,182 Iowa 816
• Parties: R. H. GRAY, Appellant, v. GEORGE E. BRICKER et al., Appellees; F. C. HUBER et al., Appellants
• Court: Iowa Supreme Court

166 N.W. 284

182 Iowa 816

R. H. GRAY, Appellant, v. GEORGE E. BRICKER et al., Appellees; F. C. HUBER et al., Appellants

No. 31359

Supreme Court of Iowa, Des Moines

February 8, 1918

Appeal from Harrison District Court.--A. B. THORNELL, Judge.

SUIT to foreclose two mortgages resulted in a decree as prayed. Subsequently, Bricker and wife were allowed to interpose a defense, and to file a cross-petition against Huber. On hearing, the decree was modified, and judgment was entered on the cross-petition against Huber. The plaintiff and Huber appeal.

Affirmed.

McCulla & McCulla and J. S. Dewell, for appellants.

Roadifer & Roadifer and J. H. Rhode, for appellees.

LADD J. PRESTON, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

LADD, J.

I.

In 1912, Bricker negotiated an exchange of a tract of land in Holt County, Nebraska, for a lot, with building, occupied by what was known at the Electron Sanitarium, in Omaha Nebraska, subject to an incumbrance of $ 1,800, receiving a conveyance thereof in January, 1913. Negotiations by Huber conducted at about the same time, resulted in the exchange of a tract of land in Meade County, South Dakota, to one Loomis, for the NW 1/4 NE 1/4 and W 1/2 SW 1/4 NE 1/4, and the W 1/2 NW 1/4 SE 1 /4, and the W 1/2 of Lot 7, all in the E 1/2 Section 34, in Township 78 North, Range 45 West of the 5th P. M., in Harrison County, Iowa, containing 99.8 acres, according to the government survey. The agreed difference was $ 2,500, and Huber and wife gave Loomis their note for this amount, and secured its payment by mortgage back on the land. Loomis had a deed from one Wood, with place for grantee's name blank, and Huber's name was inserted therein, and the deed handed to him. The note was endorsed without recourse to E. M. Unger, who paid value therefor without notice of any infirmities therein. This note and mortgage were assigned by Unger to the plaintiff for collection. Subsequently, Bricker traded his lot and the Electron Sanitarium in Omaha to Huber for his land in Harrison County, and with his wife, executed a note to Huber for the agreed difference of $ 1,250, and a mortgage on said land to secure its payment. Huber transferred these to plaintiff, as collateral security for a loan of $ 1,000. The evidence indicated that plaintiff acquired the note and mortgage without notice of any infirmities therein. The deed from Huber to Bricker recited that the latter assumed the payment of the $ 2,500 incumbrance. Suit to foreclose these mortgages and for judgment on these notes was begun February 10, 1915, and, on March 12th following judgment and decree by default, as prayed, were entered against Bricker and Huber and their wives. Special execution was issued, and the mortgaged premises sold thereunder. General execution was issued for unsatisfied portion of the judgment, and was levied on property of Bricker in Madison County.

Thereafter, and, on May 18, 1915, Bricker and his wife filed a motion to set aside the default and decree against them. Hearing was set for May 29th following; but, at that time, plaintiff moved that this be postponed, in order to take the depositions of three witnesses residing at Earlham, for that they had refused to make affidavits, and could not be compelled to attend court at Logan, as the latter place was more than 70 miles distant; and said witnesses would testify, in substance, that Bricker attended his store practically every day during his wife's illness. The court overruled the motion, reciting, in its order: "Defendant at this time admitting matters set out in the affidavit respecting the service as to George E. Becker." The only reference to such service in the motion to continue, was the allegation that plaintiffs' attorney began investigation "as to the service of the original notice herein, and the condition and conduct of the defendants Becker and Becker, at the time of the service of said notice, and from that time to the filing of the motion herein," and that such conduct was as above stated. These must have been the matters referred to as being admitted; else the recital of the admission is meaningless. Moreover, the record leaves no doubt that the original notice was duly served, and Bricker did not pretend to have attended to necessary business at his store. There was no error in not postponing the hearing.

Hearing was then had, and it was made to appear that Mrs. Bricker was served with the original notice February 11, 1915,--she waiving the reading of it,--when about to be confined; that, without reading, she directed a woman in attendance to put it away in a bureau drawer, and returned to bed, and did not recall the matter again or discover the notice until about the 7th of May following; that she was delivered of a child on the same day; that she caught cold about two weeks thereafter, and did not recover for about two months; that the child was stricken with pneumonia, when about ten days or two weeks old, and was dangerously sick for about three weeks, when a relapse occurred, and he did not recover his health until the latter part of April; that, owing to these circumstances, she was unable to leave her home more than once or twice until about May 1st; that the loss of a child in the spring of 1913 from pneumonia increased her anxiety greatly. All this appears from the affidavits of Mrs. Bricker, the physician attending her, the sheriff of the county, and her husband. The latter corroborated the details recited by his wife, and swore that, because of facts recited, they were unable to get away to attend court in Harrison County, and could not have done so prior to the middle of April. On the other hand, one of plaintiff's attorneys testified that he wrote Bricker twice, at least, concerning his obligations, and, about April 26, 1915, visited him at Earlham, when they talked about the judgment, Bricker saying that he had nothing with which to pay; that, if they made him do so, he would compel Huber to reimburse him; and, upon inquiry as to why he made no defense, responded that his father-in-law had advised him to pay no attention to the letters or the notices served, and that, if an attempt were made to collect the judgment, then to stop the collection; and that Bricker then turned over to him a blank or deed of land in Gregory County, South Dakota, with the understanding that the attorney would investigate its value, and let him know what he would allow therefor on the judgment; and that Bricker said nothing about sickness in his home, nor concerning any irregularity in obtaining judgment.

Bricker denied this, in saying that he did not understand that the attorney was undertaking to collect a judgment, but supposed he wanted payment on the notes; and testified that he first knew that a judgment had been entered May 7th following, and that the attorney, if he found the land satisfactory and that the deed would satisfy the mortgages, was to use it,--otherwise, not to do so.

Rhode father-in-law of Bricker, denied ever having advised Bricker as the attorney swore Bricker had informed him, and stated that he first learned that suit was brought, or decree entered, after the general execution was levied. On this showing, the motion to set aside the default and decree and hear the cause on the merits was sustained. That the showing was...