Lafevre v. Stone

• Decision Date: 08 December 1880
• Parties: LAFEVRE v. STONE.
• Court: Iowa Supreme Court

55 Iowa 49

7 N.W. 400

LAFEVRE

v.STONE.

Supreme Court of Iowa.

Filed December 8, 1880.

Appeal from Cass district court.

This is a proceeding under Code, §§ 3154, 3155, to obtain a new triat in an action brought in the same court. A demurrer to the petition was overruled, and, defendant refusing to answer, a judgment was entered granting relief to plaintiff. Defendant appeals.Temple & Phelps and Chamberlain & Harveson, for appellant.

C. M. Failing and Phelps & Delano, for appellee.

BECK, J.

1. It is alleged in the petition that defendant instituted an action to foreclose a mortgage, executed by J. B. Lafevre, to secure six promissory notes; that plaintiff intervened in the action, claiming in his petition of intervention that he is the holder of the notes which first matured, and asking that judgment be rendered in his favor therefor, which should be a prior lien upon the lands; that, for reasons which need not be here given, plaintiff's attorney was unprepared for trial, and was unable to be present when the case was disposed of, but that he had written a letter to an attorney who was present to have the petition of intervention dismissed without prejudice, if the case should be called in the absence of the intervenor's attorney; that this letter did not reach the attorney to whom it was addressed before the case was disposed of; that judgment was entered showing that there had been a full and final hearing upon the petition of intervention; that no evidence was introduced touching the petition of intervention, and the court did not pass upon its merits, and made no adjudication thereon, and did not direct the judgment to be entered in the form in which it now appears; that plaintiff's counsel was afterwards in the court, and was informed of the order as made by the court, and that afterwards defendant's attorney “procured to be entered upon the records, after the same had been read and approved by the court, a further record purporting to show a final judgment upon the merits of the petition of intervention, and plaintiff's attorney had no knowledge thereof until long after the adjournment of court.” Other allegations of the petition need not be here set out. The relief asked is that the judgment dismissing plaintiff's petition of intervention be set aside.

A demurrer to the petition was overruled, and thereupon, defendant refusing to further plead, judgment was entered that “the record entry in the cause be and the same is hereby corrected to show and read that the petition of intervention in the cause * * * * * * is dismissed by order of the court without prejudice for failure of intervenor to appear and prosecute the same.”

Defendant insists that the demurre...