Hawk v. Evans

• Citation: 41 N.W. 368,76 Iowa 593
• Parties: HAWK ET AL. v. EVANS ET AL.
• Decision Date: 22 January 1889
• Court: Iowa Supreme Court

76 Iowa 593

41 N.W. 368

HAWK ET AL.

v.EVANS ET AL.

Supreme Court of Iowa.

Jan. 22, 1889.

Appeal from district court, Harrison county; C. H. LEWIS, Judge.

The defendants were at one time practicing law under the partnership name of Evans & Roadifer, and this action was brought to recover a certain amount of money collected by them as such attorneys, which they had refused to account for. The defendant Roadifer alone appeared, and pleaded a prior adjudication, and also a counter-claim, based on a libelous communication. Trial by jury, judgment for the plaintiff, and the defendant Roadifer appeals.

REED, C. J., dissenting.

S. I. King, for appellant.

John A. Berry, for appellees.

ROTHROCK, J, ( after stating the facts as above.)

The evidence tended to show that the plaintiff placed in the hands of the defendants, as attorneys at law, for collection, a claim or demand against R. B. Ely. At that time the defendants were partners, and as such received the claim for collection. Afterwards such partnership was dissolved, and thereafter Ely paid the amount due on the claim to the defendant Evans. Prior to the commencement of this action, the plaintiff commenced a proceeding against the defendants, under the provisions of section 2906 of the Code, which provides as follows: “Judgments or final orders may be obtained on motion by * * * clients against attorneys, plaintiffs in execution against sheriffs, * * * for the receiving of money or property collected by them. * * *” It is also provided in section 2610 of the Code that such “motion shall be heard and determined without written pleadings, and judgment given according to law and the rules in equity.” In the proceeding so commenced by the plaintiff the relief asked was for “a summary order against said defendants, and each of them, as aforesaid, requiring them to pay over to these plaintiffs the said sum,” etc. There was a trial, and the “court, being fully advised, denied the motion.” This is the judgment which was pleaded as a prior adjudication, and the court held it did not amount to an adjudication which barred this action.

1 It will be observed that the plaintiff in the special proceeding only asked for a final order requiring the defendants to pay over the money collected by them, or either of them; and, as such an order cannot be enforced by execution, counsel for the plaintiff insists there has been no adjudication. But is this a sufficient answer? Under the statute, the plaintiff could have asked for a judgment, and we are aware of no rule of law under which a prior adjudication has been defeated simply because a party has not asked for all the relief to which, under the facts pleaded, or in this case stated in the motion, he was entitled. It is obvious the plaintiff could have asked for a judgment or final order, or possibly for both. Now, the fact that he only asked for the latter cannot possibly, we think, destroy the effect of the adjudication, or aid in the determination whether there has been one or not. It is undoubtedly true that, if the plaintiff was not entitled to a final order, he was not entitled to judgment. The same evidence would be required in either case. The precise matter in issue in this case was in issue in the special proceeding, and it was therein adjudged that the plaintiff was not entitled to the relief asked. The difference in the manner of enforcing a final order and judgment is immaterial. It is said in argument that the court denied the relief asked in the motion, on the ground that the money had been paid to Evans after the dissolution of the partnership of Evans & Roadifer. Whether this is so we are not advised. The record fails to disclose the ground upon which the court proceeded, and therefore we are not called on to determine whether, if the court did so, it would destroy the effect of the adjudication. It is provided by section 2910 of the Code that judgment shall be rendered in said special proceeding according to law and the rules of equity. A trial was had, and the judgment dismissing the special proceeding recites that the court “heard the testimony adduced in support of and against the motion,” and denied the motion as to H. H. Roadifer. This was a complete adjudication that H. H. Roadifer was not liable to the plaintiffs. If the plaintiffs were not satisfied with the judgment of dismissal, they should have appealed therefrom. An appeal is expressly authorized by subdivision 2, § 3164, of the Code. If there had been an order or judgment against the defendant Roadifer in that proceeding, he would have had no...