Johnson, Lane & Co. v. Nash-Wright Co.

• Decision Date: 10 October 1903
• Citation: 96 N.W. 760,121 Iowa 173
• Parties: JOHNSON, LANE & COMPANY, v. NASH-WRIGHT COMPANY, Appellant
• Court: Iowa Supreme Court

96 N.W. 760

121 Iowa 173

JOHNSON, LANE & COMPANY, v. NASH-WRIGHT COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 10, 1903

Appeal from Mahaska District Court.--HON. JOHN T. SCOTT, Judge.

THE Nash-Wright Company brought an action in the district court of Mahaska county against Johnson, Lane & Co., to recover $ 200, balance due on account, which account, as it appears showed debits of about $ 7,000 for money advanced, interest thereon, and commissions, and credits of about $ 6,800, for grain received to be sold on commission. On default entered for failure of the defendant in that action to answer plaintiff's amended and substituted petition, judgment was rendered for the plaintiff for the amount claimed. At a subsequent term, within one year, Johnson, Lane & Co. filed in the same court a petition in equity, asking that the default and judgment against them be set aside, and that they be given permission to file their answer in the original cause, and make their defense thereto, the ground for relief alleged being that at the time of the rendition of such judgment, and prior thereto, the attorneys for Johnson, Lane & Co. had an oral agreement with the attorney for the Nash-Wright Company that no default or judgment should be taken in said cause for failure to answer until they had been notified by the attorney of the opposite party of his intention to take such default. To this petition in equity the Nash-Wright Company answered, denying substantially the allegations thereof. Subsequently Johnson, Lane & Co. filed in the same court a pleading entitled as in the original action, in which they denied each and every allegation of plaintiff's petition in that action, in which judgment on default had already been rendered; and also set up a counterclaim against the Nash-Wright Company for $ 3,894.65 balance due on grain delivered for sale on commission. The trial court thereupon proceeded to try the issues presented by the petition in equity and the answer thereto, and, after hearing evidence, rendered a decree setting aside the judgment and ordering the original cause to be retried. From this decree the Nash-Wright Company appeals.

Reversed.

Frank T. Nash and B. W. Preston for appellant.

Seevers & Malcolm for appellees.

OPINION

MCCLAIN, J.

By Code, section 4091, it is provided that: "Where a final judgment has been rendered, * * * the district court, in addition to causes for a new trial herein before authorized, may, after the term at which the same was rendered or made, vacate or modify the same or grant a new trial: * * * (3) For fraud practiced in obtaining the same; * * * (5) For unavoidable casualty or misfortune, preventing the parties from prosecuting or defending." As there is no provision for entertaining a motion for a new trial, not filed "within three days after the verdict * * * or decision is rendered, unless for good cause the court extends the time, except for the cause of newly discovered evidence" (section 3756), nor for moving to set aside a default "unless application therefor is made at the term at which default was entered, or, if entered in vacation, then on the first day of the succeeding term," it is clear that the relief provided for by section 4091, above quoted, can be secured after the term only in accordance with the method pointed out in that section, and those following relating to the same subject. This method is, so far as applicable to the grounds of relief above quoted, by filing a petition in the district court, "setting forth the judgment or order, the alleged facts or errors constituting a cause to vacate or modify it, and the matters constituting a defense to the action, if the party applying was a defendant" (section 4094); and "in such proceedings the party shall be brought into court in the same way, on the same notice as to time, mode of service and return, and the pleadings, issues and form and manner of trial shall be governed by the same rules and conducted in the same manner, as nearly as may be, and with the same right of appeal, as in ordinary actions. No new cause of action of defense shall be introduced, and the matter stated in the petition shall be taken as denied without answer, and the issue shall be tried by the court." Section 4095. It is further provided that "the judgment shall not be vacated on * * * petition until it is adjudged there is a cause of action or defense to the action in which the judgment is rendered." Section 4096.

The proceeding provided for is evidently a proceeding in the original action, although, if instituted after the term, it is to be by petition, and not by motion. While the jurisdiction of a court of equity to entertain a petition to set aside a judgment at law for fraud, or on account of other ground of equitable relief, is not expressly denied, it is evident that, so far as the remedy which might formerly have been sought only in equity may now be had in the case itself by petition, there is no occasion to resort to the equitable jurisdiction of the court, for equitable relief should not be given where the plaintiff has a plain, adequate, and speedy remedy at law. Within one year, therefore, after the rendition of judgment in an action at law, a party to that action seeking relief as against said judgment on any ground covered by the provisions of section 4091 ought to proceed under the provisions of that section and the other sections of the Code relating to that subject, and ought not to bring his action in equity. Hintrager v. Sumbargo, 54 Iowa 604, 7 N.W. 92. It may be that, if there are any equitable grounds of relief against a judgment at law, not covered by Code, section 4091, the party seeking to set aside a judgment at law may, with reference to such grounds, still proceed, as formerly, in equity; and we have held that, after the expiration of one year, which is the limit of time within which the special action provided for by that section may be maintained (section 4094), the right to proceed by petition in equity, at least with reference to the grounds of relief recognized by section 4091, still exists. District Township v. White, 42 Iowa 608; Bond v. Epley, 48 Iowa 600. Plaintiffs in this case should, therefore, have filed a petition in the original case in which they were defendants, and should not have attempted to invoke equitable jurisdiction. However, as no objection to the forum was made, the case must now be tried on appeal as an equitable action.

But whether the proceeding be at law or in equity, the petitioner must show by his allegations and his evidence that he has some ground entitling him to relief. He has the burden as to allegation and proof. It is difficult to say under which one of the two statutory grounds already quoted plaintiffs seek to make out a case. They have alleged no casualty, unless it be the casualty of not having made their defense when they were called upon to do so by the ordinary rules of procedure, nor any misfortune save that of a judgment against them. We suppose, however, that their real contention is that the act of counsel for the plaintiff in the original action in taking judgment without notice of his intention to do so, in violation of his agreement to give counsel on the other side notice of such intention constituted fraud, and we shall treat the case as though fraud had been formally alleged as constituting the basis for the relief asked. But fraud, if alleged, must be proven, and it is necessary, therefore, to see what evidence there was tending to show fraud. Objection was made on the trial to any evidence of the alleged agreement between counsel for the respective parties, on the ground that it was not in writing, as required in Code, section 319. But, without discussing the applicability of that section, it is sufficient to say that Attorney Nash, who represented the Nash-Wright Company in the original action and also in the present proceeding, seems to admit in his testimony that he made the arrangement with opposing counsel as alleged, and the agreement was therefore sufficiently proved, under the requirements of the...