Hedrick v. Smith

• Decision Date: 11 March 1908
• Citation: 137 Iowa 625,115 N.W. 226
• Court: Iowa Supreme Court
• Parties: HEDRICK v. SMITH & REED.

137 Iowa 625

115 N.W. 226

HEDRICK

v.SMITH & REED.

Supreme Court of Iowa.

March 11, 1908.

Appeal from District Court, Wapello County; C. W. Vermilion, Judge.

In October, 1905, the plaintiff filed her petition in equity asking that a judgment for $372 and a decree in connection therewith making such judgment a lien upon certain lots, rendered in favor of the defendants in this action and against the plaintiff, which were entered upon default in June, 1904, be set aside and a new trial granted on account of fraud in obtaining such judgment and unavoidable casualty and misfortune preventing this plaintiff from defending therein. The allegations of the petition as to fraud, casualty, and misfortune were denied, and after a trial on the merits a decree was entered dismissing plaintiff's petition, and from this decree the plaintiff appeals. Affirmed.Steck, Daughterty & Steck, for appellant.

Tisdale & Heindel and C. F. Clark, for appellees.

McCLAIN, J.

The judgment which plaintiff seeks to have set aside was in an action in which these defendants, claiming as owners of certificates of purchase at tax sale of three lots for delinquent street improvement assessments, asked to have judgment against the defendant (this plaintiff) as the owner of said lots, and to have such judgment decreed to be a lien thereon. No appearance being made for the defendant in that action, judgment was rendered as prayed. This plaintiff now alleges that she was not the owner of the lots at the time the special assessments became a lien thereon, and therefore was not personally liable for such assessments; that the defendants in this action, with knowledge of the fact that plaintiff was not personally liable, fraudulently took default against her; and that the failure of an attorney generally employed to represent her to interpose any defense, although he had knowledge of the pendency of the action, constituted such casualty and misfortune as to entitle her to equitable relief. It is conceded that the right of plaintiff to relief must be found within the provisions for new trial on petition as specified in Code, § 4091, which is exclusive as to the grounds on which such relief may be granted, although the time within which it may be granted may be extended by a court of equity on a showing that the proceeding is prosecuted with reasonable diligence after discovery of the fraud, casualty, or misfortune. Ruppin v. McLachlan, 122 Iowa, 343, 98 N. W. 153;Lumpkin v. Snook, 63 Iowa, 515, 19 N. W. 333.

1. The only fraud imputed to defendants in connection with taking their judgment by default was in asserting a right to a personal judgment against this plaintiff for special assessments under which they had bought in the property at tax sale, when, in fact, to their knowledge, the plaintiff was not personally liable therefor. That plaintiff would have been liable to a personal judgment for such assessments in favor of a certificate holder had she been the owner of the property at the time they became liens under the provisions of Code 1873, § 478, is conceded. Burlington v. Quick, 47 Iowa, 222;Talcott v. Noel, 107 Iowa, 470, 78 N. W. 39. The fraud of these defendants, therefore, in asking a personal judgment against plaintiff for the assessments, consisted in the assumption, without express allegation, that the plaintiff was the owner of the lots when the assessments became liens thereon, and that defendants had knowledge that plaintiff was not such owner and was as a matter of law not personally liable for such assessments, or in the assumption as matter of law that the purchaser at tax sale for the special assessments acquired the right of the city and the holder of the assessment certificates to hold the owner of the lots personally for the assessments. Had this plaintiff interposed in that action the objection that her ownership at the time referred to was not alleged, the plaintiffs in that action would have been defeated for failure to make such allegation, or, having made it, would have been defeated according to plaintiff's claim as to the fact on failure to prove the truth of such allegation, and as to the law question would have been defeated by a ruling that the purchaser at tax sale did not acquire the claim of the city or the certificate holder to a personal judgment. We, therefore, have as to the question of fraud the proposition in plaintiff's behalf that the taking of judgment without an essential allegation as to the truth of which they must have necessarily failed in the proof and with knowledge of the facts, or the assertion of a claim unfounded as matter of law constituted fraud requiring the setting aside of the judgment. The allegation and proof as to this essential fact, and the legal conclusions drawn therefrom, were therefore intrinsic, that is, necessarily involved in the action itself, and it is now well settled in this court that even an allegation of a fact known to be false, and the establishment of that fact by testimony also known to be false, do not afford sufficient ground for setting aside a judgment on the ground of fraud. Graves v. Graves, 132 Iowa,...