Hallam v. Finch
| Decision Date | 23 October 1923 |
| Docket Number | 35341 |
| Citation | 195 N.W. 352,197 Iowa 224 |
| Parties | JOSEPH W. HALLAM, Appellee, v. GEORGE W. FINCH, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 8, 1924.
Appeal from Woodbury District Court.--MILES W. NEWBY, Judge.
ACTION in equity, to subject certain property of the defendant alleged by him to be a homestead, to the lien and satisfaction of a prior judgment entered in an action for accounting between the parties hereto. The equities were determined in favor of the plaintiff, and judgment was entered accordingly. Defendant appeals.
Affirmed.
George W. Finch, for appellant.
J. W Hallam and A. H. Bolton, for appellee.
DE GRAFF, J.
A brief statement of the history of this case is necessary, to understand the propositions involved on this appeal. On April 25, 1919, a petition was filed by plaintiff against the defendant, praying an accounting between them as partners. A referee was appointed, in conformity to Code Section 3735, and it was stipulated that either party might have time to procure a transcript of the evidence taken before the referee, prior to the hearing on the report of the referee, and that the referee should have sufficient time to prepare and file his report. On August 26, 1920, the cause was tried before the referee, and his report was subsequently filed. Under the findings, plaintiff was entitled to a judgment against the defendant in the sum of $ 1,431.25. It is conceded that an error of $ 50 in favor of plaintiff was made in the finding. On September 4, 1920, defendant filed objections to the report of the referee. Continuances were granted from time to time on the hearing of the report. Under a rule of practice of the district court, authorizing a dismissal when the petition has been on file two years and no satisfactory excuse for the delay in trial has been shown, the clerk noted the cause for dismissal, and on May 18, 1921, the cause was dismissed without prejudice, and the costs taxed to the plaintiff. The attention of the trial judge having been called to the situation, the judgment entry was set aside and vacated by the court on its own motion. The report of the referee, with objections, was then assigned for hearing. Defendant was notified of the time of hearing, but refused to appear; and on June 4th, the court reviewed the report of the referee, approved the findings, and entered judgment upon said finding in favor of plaintiff on June 8, 1921. From this judgment, defendant served notice of appeal to the Supreme Court of Iowa, but subsequently the appeal was abandoned. Thereafter, an execution was issued on the judgment entered, and was returned nulla bona. Plaintiff then instituted this action, to subject certain property of the defendant to the lien of the judgment. It is the claim of defendant that the property sought to be so subjected is his homestead. The cause proceeded to trial, and the court determined that the property was subject to the lien of the judgment, and ordered the same sold. It is from this finding and judgment that the instant appeal is prosecuted.
It is the contention of the defendant appellant that he has a meritorious defense to the original action; but we are not justified on this appeal to enter upon the determination of this question, as the merits of the cause in which the prior judgment was entered are not in issue here. We first determine whether the trial court properly set aside the dismissal of the original action on its own motion. The presumption of regularity is properly invoked and applied under the facts of this case. Furthermore, with or without a statute, a court has undoubtedly inherent power to correct its own records during the term, and to set aside, modify, or expunge any order, decree, or judgment; and the power exists...
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