Kelly v. Cummens

• Decision Date: 05 June 1909
• Citation: 121 N.W. 540,143 Iowa 148
• Parties: T. L. KELLY, Appellant, v. AMELIA CUMMENS, Appellee
• Court: Iowa Supreme Court

121 N.W. 540

143 Iowa 148

T. L. KELLY, Appellant, v. AMELIA CUMMENS, Appellee

Supreme Court of Iowa, Des Moines

June 5, 1909

Appeal from Allamakee District Court.--HON. L. E. FELLOWS, Judge.

THIS is a petition for a new trial of a case entitled Cummens v Kelley, in which plaintiff recovered judgment against defendant for the sum of $ 1,000 under the civil damage act for the sale of intoxicating liquors to the plaintiff's son. The trial court denied the relief asked, and plaintiff appeals.

Affirmed.

William S. Hart, for appellant.

D. J Murphy, for appellee.

OPINION

DEEMER, J.

The original action was brought under the civil damage act to recover damages for the sale of liquor to the plaintiff's (defendant's) minor son. The defendant in that suit, plaintiff here, appeared to the action by his attorney one Bulman, and filed answer. Thereafter the attorney withdrew his appearance and answer. Eight days thereafter the court rendered judgment against defendant, plaintiff here, for the sum of $ 1,000.00. This judgment was rendered November 23, 1905. On August 13, 1906, plaintiff here filed a petition for a new trial, in which among other things, he denied having sold any liquors to defendant's son, denied that defendant ever suffered any damages by reason of any sale made by him, and further pleaded unavoidable casualty and misfortune preventing him from appearing to and contesting defendant's action against him due to a misunderstanding between him and his attorney and to fraud practiced by said attorney upon him in withdrawing his appearance and answer. In the petition it is also claimed that the testimony upon which the original judgment was obtained was false and untrue. Issue was taken upon this petition, and, after a hearing upon the evidence adduced, the trial court dismissed the petition, and plaintiff appeals.

The trial court virtually held that a new trial should not be granted because the testimony showed that plaintiff did sell some liquor to defendant's minor son, and that there was no such casualty or misfortune shown as would justify a rehearing of the case. The testimony as to what took place between plaintiff and his attorney with reference to the defense of the original action is in conflict; but the trial court was justified in finding that Bulman, the attorney, secured postponements and continuances of the original case as often and as long as possible, and that all parties understood the case was to be tried at the November, 1905, term of court, in which it was pending; that the attorney called upon his client with reference to the taking of a deposition to be used in defense; and that Kelly told him not to do so. It also appears that during the term of court this attorney notified his client that the case was for trial and tried to induce him to come to court that he might make defense; that he, the client, told the attorney that, if he could not get it put off longer, to let plaintiff in the original action have judgment; that he would not go to the county seat to defend; and that he had his property fixed so that the judgment would not harm him. Plaintiff herein had another version of the affair, but the trial court was justified in view of the conflict in rejecting this testimony and believing the attorney, and, as this is evidently the situation, we are in no position to interfere. The proceeding is at law, and the judgment must be sustained if there be substantial testimony in its support. Kruidenier v. Shields, 77 Iowa 504, 42 N.W. 432; Callanan v. Bank, 84 Iowa 8, 50 N.W. 69; Lundon v. Waddick, 98 Iowa 478, 67 N.W. 388; Ind. Dist. v. Schreiner, 46 Iowa 172.

Defendant called the attorney Bulman as her witness after plaintiff had gone upon the stand and given his version of the entire transaction between him and his counsel. It is now contended that the attorney was an incompetent witness under section 4608 of the Code, relating to the testimony of attorney regarding transactions with their clients. It is enough to say that, according to all...