Heinz v. Roberts

• Decision Date: 12 March 1907
• Citation: 135 Iowa 748,110 N.W. 1034
• Parties: HEINZ v. ROBERTS.
• Court: Iowa Supreme Court

135 Iowa 748

110 N.W. 1034

HEINZ

v.ROBERTS.

Supreme Court of Iowa.

March 12, 1907.

Appeal from District Court, Hardin County; J. R. Whitaker, Judge.

Suit in equity to enjoin defendant who is an attorney at law from practicing his profession at the town of Ackley. Trial to the court, resulting in a decree dismissing the petition. Plaintiff appeals. Reversed and remanded.

Weaver, C. J., dissenting.

M. J. Wade, for appellant.

Albrook & Lundy, for appellee.

DEEMER, J.

The notice of appeal is in the usual form giving the title of the case and being addressed to John S. Roberts and to Albrook & Lundy, his attorneys, but it states that plaintiff, John R. Roberts, has appealed from the decision, etc. It is signed by M. J. Wade as attorney for plaintiff. It is claimed that this notice in naming plaintiff as “John R. Roberts” is fatally defective, and gives us no jurisdiction of the appeal. The notice is perfect in all respects, save in so far as it calls John R. Roberts plaintiff. That this is a mere clerical mistake is perfectly clear; and as the notice contains all that is required, the name John R. Roberts, which is clearly a mistake of the draftsman, may be disregarded, and a sufficient notice yet remains. This matter was first presented in an amended abstract filed with appellee's argument. He had theretofore appeared in the case, and filed an amended abstract, in which he made no reference to the alleged defect in the notice; and, as the notice was at most simply defective, he, by his appearance, waived the defect. None of the cases cited for appellee are controlling. On the contrary, our conclusions are sustained by Geyer v. Douglass, 85 Iowa, 93, 52 N. W. 111;Searles v. Lux, 52 N. W. 327, 86 Iowa, 61;Roundy v. Kent, 75 Iowa, 662, 37 N. W. 146. The motion to dismiss the appeal is overruled.

2. Defendants are each attorneys at law residing at Ackley in this state. It appears from the testimony that defendant, who is an old practitioner, was desirous of removing from Ackley, where he was then engaged in the practice of law, and of selling his library and fixtures, good will, etc., entered into negotiations with plaintiff which resulted in a sale thereof to the plaintiff for the agreed price of $600, $200 of which was paid in cash, and the remainder by two notes--one for $100, and the other for $300. The negotiations were closed on the 7th day of April, 1904; defendant executing to plaintiff a bill of sale, and plaintiff paying the cash, and making notes for the amounts above stated. In the bill of sale the library and office fixtures, as well as the good will of the business, were expressly conveyed, and, in addition thereto, we find the following stipulations: “It is further agreed on the part of said J. S. Roberts that he will not open a law office in the town of Ackley, Iowa, or vicinity thereof, or practice in his profession in said town or vicinity for the period of ten years from and after this date; except to close the business now in his hands; and should the said John S. Roberts in any manner violate the terms of this agreement, he shall forfeit and pay to the said John R. Heinz the sum of $600, the same being the agreed and stipulated damages for said breach. And the said J. S. Roberts further agrees to give his time and attention to the business now as established, and to secure new additional and other business for said office from this date to the 10th day of June, 1904. And the said J. S. Roberts is to turn over to the said John R. Heinz all unfinished business remaining in the hands of the said J. S. Roberts after the 10th day of June.” The $300 note was in the usual form, due two years after date, save that it bore this endorsement upon the back thereof: “The payee in this note, J. S. Roberts, as part consideration, stipulates and agrees not to open a law office in the town of Ackley, Iowa, or practice his profession in said town for the term of two years from and after the date of this note, and should the said J. S. Roberts violate this agreement, then this note to be null and void and of no effect. J. S. Roberts.” Defendant sold and received the money upon the $100 note, and has not returned nor offered to return either this sum or the $200 received in cash; and he still holds the $300 note. Shortly after the sale defendant left Ackley and went to the state of Washington, where he remained until about November 2, 1904, when he returned to Ackley, and on or about January 4, 1905, he again opened a law office, and commenced the practice of his profession. Before returning he wrote a letter to plaintiff, saying that he should return to Ackley to look up a location, but that he would respect his agreement, and would not open an office in Ackley. To others he said that he had no right to practice law at that place. After his return he tried to adjust the matter with plaintiff, and plaintiff made a proposition which was not accepted, and defendant then opened his law office as before stated.

On February 28, 1905, plaintiff commenced this action, which was originally to obtain damages and to restrain defendant from violating his agreements before stated; but before the case was brought on for trial such pleadings were filed as withdrew all claims for damages or for return of the consideration, and made plaintiff's case simply one to enjoin defendant from opening a law office or practicing his profession in the town of Ackley for 10 years from and after April 7, 1904.

The petition alleges that defendant is insolvent, and the proof is sufficient to establish that allegation--that is to say, after deducting exemptions, defendant has no property of any considerable value, subject to execution; that such covenants as defendant made in this case may be enforced by...