Grove v. Bush,

CourtUnited States State Supreme Court of Iowa
Writing for the CourtROBINSON
Citation86 Iowa 94,53 N.W. 88
Decision Date05 October 1892
PartiesGROVE v. BUSH.

86 Iowa 94
53 N.W. 88

GROVE
v.
BUSH.

Supreme Court of Iowa.

Oct. 5, 1892.


Appeal from district court, Cerro Gordo county; J. C. SHERWIN, Judge.

Action in equity to enforce performance of an alleged agreement to compromise a judgment or to obtain a new trial. After a hearing upon the merits, judgment was rendered in favor of defendant. The plaintiff appeals.

[53 N.W. 89]

Geo. E. Clarke, for appellant.


ROBINSON, C. J.

On the 18th day of December, 1874, the plaintiff gave to Gammon & Deering his promissory note for the sum of $93.49, with interest thereon at 10 per cent. per annum, payable on the 1st day of November, 1876. The note recited that it was given for a Marsh harvester. In the year 1886 the defendant, Bush, as assignee of the note, brought action upon it in the district court of Cerro Gordo county. The plaintiff, Grove, appeared in the action, and filed an answer in March, 1887. Nothing further seems to have been done in the case until the next October. On the 20th day of October, 1887,--that being the fourth day of the term,--Bush appeared by his attorneys, and, in the absence of Grove and his attorneys, obtained judgment on the note for $255.60, an attorney's fee of $23.90, and $5.05 costs. Five days later Grove appeared by his attorney, and filed a motion to set aside the judgment, and for a new trial. The motion was supported by affidavits. Bush objected to the motion, on the ground that it was not made in time, and on the further ground that it did not show facts sufficient to warrant the court in setting aside the judgment. The motion was overruled the day after it was filed, presumably on the first ground. This action was brought in July, 1888, for the purpose of enforcing an alleged agreement to compromise and satisfy the judgment; and, if sufficient ground for that relief is not shown, the plaintiff herein asks that the judgment be set aside, and a new trial granted. A temporary injunction was issued to restrain the collection of the judgment. On the 27th day of January, 1890, the district court dismissed the petition, and rendered judgment in favor of defendant, Bush, and against the sureties on the injunction bond, for $355.40, and $25.55 costs.

1. The plaintiff claims, and some of the evidence tends to show, that he had a meritorious defense to the action on the note. He further claims that after the judgment was rendered, and after the motion to set it aside had been overruled, his attorney, George E. Clarke, prepared a petition in equity, asking for a retrial of the cause, and had it with him during the term of court held in Cerro Gordo county in March, 1888; that while there he saw defendant, showed him the petition, and told him he was about to file it, but that his client was willing to compromise the matter; that, after talking with his attorney, Bush told Clarke he would accept $110 as a compromise; that Clarke objected to the amount, but said he would try to induce his client to pay it; that Bush told him if his client would not pay that amount, $100 would be accepted; that Clarke returned to his home at Algona, where plaintiff also resided, and after a day or two saw and explained to him the offer of compromise; that some time afterwards he paid Clarke $110 for the purposes of the compromise, and that on the 6th day of June, 1888, that amount was tendered to defendant in settlement of the judgment; but that he...

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2 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...v. Kemp, 33 N.E. 1034.) A compromise must be established by a preponderance of the evidence. (Bank v. Galvin, 45 N.E. 353; Grove v. Bush, 53 N.W. 88.) An examination of the bill in question will clearly show that the subject of damage for change of grade was never entered into, nor included......
  • Petersen v. Koch
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1899
    ...casualty or misfortune preventing the client from prosecuting or defending, it is ground for new trial.” In Grove v. Bush, 86 Iowa, 95, 53 N. W. 88, the ground for new trial was the failure of plaintiff's attorney to appear in the case at the proper time because of a misapprehension as to w......
2 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...v. Kemp, 33 N.E. 1034.) A compromise must be established by a preponderance of the evidence. (Bank v. Galvin, 45 N.E. 353; Grove v. Bush, 53 N.W. 88.) An examination of the bill in question will clearly show that the subject of damage for change of grade was never entered into, nor included......
  • Petersen v. Koch
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1899
    ...casualty or misfortune preventing the client from prosecuting or defending, it is ground for new trial.” In Grove v. Bush, 86 Iowa, 95, 53 N. W. 88, the ground for new trial was the failure of plaintiff's attorney to appear in the case at the proper time because of a misapprehension as to w......

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