Lende v. Ferguson

• Decision Date: 29 July 1946
• Docket Number: 46872.
• Citation: 23 N.W.2d 824,237 Iowa 738
• Parties: LENDE v. FERGUSON.
• Court: Iowa Supreme Court

23 N.W.2d 824

237 Iowa 738

LENDE v. FERGUSON.

No. 46872.

Supreme Court of Iowa

July 29, 1946

Griffin & Griffin, of Sioux City, for appellant.

Crary & Crary, of Sioux City, for appellee.

MULRONEY Justice.

Plaintiff's petition, filed January 11, 1944, alleged that on August 20 1935, he recovered a personal judgment against defendant in the District Court of Yellow Medicine County, Minnesota, in the sum of $1,215.50. An exemplified copy of the judgment was attached to and made a part of the petition and the prayer was for judgment for the amount of the Minnesota judgment, interest and costs.

Defendant's answer admitted that plaintiff had obtained a judgment in the Minnesota court but defendant alleged that the judgment was for $855 and was recovered on August 20, 1928. He denied that any legal and valid judgment was obtained against him on August 20, 1935 and asserted that the original judgment had been 'altered and changed without his knowledge or consent to read August 20, 1935' and since the judgment was in fact rendered on August 20, 1928, it was barred by the statute of limitations of the State of Minnesota in that more than 10 years had elapsed from August 20, 1928, to the commencement of this action. The answer further alleged that the judgment in Minnesota was, in March of 1929, applied as an offset or payment on another judgment in the sum of $2,555.80, in the same Minnesota court against the plaintiff and in favor of the Canby Hereford Farms Company.

Plaintiff's reply denied the claim of offset and that the judgment was illegally or fraudulently entered and alleged that under section 9190 of Mason's Minnesota Code an action on a Minnesota judgment can be brought at any time within 10 years of the entry of judgment; that the judgment sued on was not entered until August 20, 1935, but under section 9394, Mason's Minnesota Code, there is no particular time within which judgments must be entered up after a verdict.

Pursuant to a stipulation the case was tried in equity and is here de novo.

Plaintiff introduced a certified copy of the Minnesota judgment sued upon and rested. The judgment entry is dated August 20, 1935, and is in the sum of $1,215.50 and it appears to be entered upon a jury verdict rendered on June 20, 1928, in the sum of $850, to which sum, interest to August 20, 1935, in the amount of $365.50 has been added.

The defendant then introduced Exhibit 1 which was a certified copy of a judgment obtained in the same Minnesota court against plaintiff by the Canby Hereford Farms Company. This judgment (which we will term the corporation judgment) is dated August 14, 1928 and is in the sum of $2,555.80. In connection with this judgment defendant testified: 'In 1928 Mr. Harmon and myself were sole owners of the stock (in the corporation known as the Canby Hereford Farms Company) except one share owned by my wife. The corporation disposed of its assets, including this judgment, Exhibit 1, to Mr. Harmon and myself and they were assigned to us. Later, about the latter part of 1928, Mr. Harmon transferred his interests to me, including the judgment, Exhibit 1. The judgment, Exhibit 1, was assigned to Johnson & Schaefer for convenience in collecting, I think in June, 1928. They were attorneys of Ivanhoe, Minnesota, who had represented myself and the corporation in this lawsuit in which the judgment was secured, and other actions.'

The defendant further testified that about the 17th of March, 1929, he had occasion to go to Granite Falls, Minnesota, the county seat of Yellow Medicine County and there he met his attorney, Mr. Johnson, in the clerk's office in the court house. He stated that they looked at the books and records in the Clerk's office with reference to these two judgments and he saw the sheriff's report of a sale on execution on the corporation judgment, the sale having been on March 16, 1929, and he also saw at that time the book designated 'Judgment Docket' and there he saw the judgment in the case of O. A. Lende v. John B. Ferguson, et al. He testified that he recalled the date of the judgment entered against him and it was August 20, 1928; that he made a memorandum of the date and amount due on the judgment against him, figured to March 1, 1929, and it was $885.67 and a memorandum of the amount due on the corporation judgment and it was $2,639.29. At this point defendant's counsel made the following demand on plaintiff's counsel: 'Now I ask you Mr. Griffin, to produce the original of the written agreement entered into between Mr. Ferguson and Mr. Lende, in the month of March, 1929, referring to and covering the matter of the offset of these two judgments. I will ask Mr. Griffin, as attorney for the plaintiff, to produce that original signed agreement at this time.' To which demand counsel for plaintiff replied: 'The plaintiff claims that there never was any such agreement made and we have no copy to produce.'

Defendant thereupon introduced Exhibit 2, an unsigned paper, as follows:

'It is agreed between J. B. Ferguson and O. A. Lende as follows:

'Whereas judgment was entered in the District Court of Yellow Medicine County, Minnesota against O. A. Lende, et al, defendants, on the 14th day of August, 1928, for the sum of $2,444.80 in favor of Canby Hereford Farms Company of which company and judgment J. B. Ferguson is sole owner and,

'Whereas said judgment was assigned to Johnson and Schaefer, attorneys for J. B. Ferguson, for purposes of collection only, and

'Whereas the said O. A. Lende obtained a judgment in said court against John B. Ferguson, et al., which was entered on the 20th day of August, 1928, for the sum of $858.50.

'It is therefore agreed by and between said J. (John) B. Ferguson and said O. A. Lende that the last above described judgment shall be credited on or set off against the judgment first herein above described by applying it in part payment thereof, and the said O. A. Lende shall be credited on said first described judgment with the sum of $1339.20 arising from sale on execution under said judgment of the N.W. 1/4 of Section 20, in Township 108, Range 39, Murray County Minnesota which premises said O. A. Lende is to convey by Quitclaim Deed to Johnson and Schaefer for the benefit of said J. B. Ferguson.

'In consideration of the said premises, O. A. Lende and J. B. Ferguson are each to be released from the said respective judgments.

'J. B. Ferguson hereby authorizes his said attorneys to fully carry out the terms of this agreement.

'Dated this ___ day of March, 1929.

________

________'

Defendant then testified that his attorney, Mr. Johnson, had two other duplicate copies of Exhibit 2 when they were together in the clerk's office in Granite Falls on March 17, 1929, and they were both signed by O. A. Lende. He stated that he was very familiar with Lende's signature and that he read over Exhibit 2 and signed 'either one or two of them, whichever was signed by Mr. Lende.' He stated that he did not have the signed originals. On cross-examination he stated that he did not get a signed copy of this agreement and he did not get 'anything in the way of a release of the judgment.' He couldn't recall that the signed copy of Exhibit 2 was handed to the clerk. He stated: 'My attorney, Mr. Johnson, handled the agreement * * * I left it with my attorney, Mr. Johnson.'

The Clerk of Court of Yellow Medicine County testified for plaintiff in rebuttal and stated that on August 19, 1935, he received a letter from Mr. Lende asking him to enter judgment in the case of Lende v. Ferguson; that there was no judgment entered prior to that time; and pursuant to the instructions he entered judgment which bears his signature as of August 20 1935. He testified from the judgment docket books and judgment record books for the years 1928 to 1935. He testified that the judgment docket (where defendant stated he had seen the judgment in the case of O. A. Lende v. Ferguson dated August 20, 1928) contained no entry of any judgment in the month of August 1928 and neither the judgment docket books nor the judgment record books contained any entry or record of a judgment in the Lende v. Ferguson case prior to August 20, 1935. He stated that there was no other book in his office that Mr. Ferguson could have referred to and found the entry of judgment. The clerk had another book with him called 'Register of Actions' wherein there are listed all papers filed in an action. In this book, with reference to the case of Lende v. Ferguson, there is listed the filing of a number of papers in 1928 and the last entry is the judgment roll in 1935, and the 35 appears to be written over some other figure that looks like 28. With reference to this, the clerk testified: 'I made that change. It is in my handwriting. I don't remember whether I inadvertently copied '1928', the date above, or whether I had put in some other date, but this is in my handwriting and was made August 20, 1935.' The clerk testified that under the Minnesota procedure the judgment is not entered automatically after a jury verdict but the clerk waits until a request for judgment is made by one of the litigants or an attorney in the case. The clerk also had the records concerning the corporation judgment against Lende and these records, introduced without objection, show the assignment of this judgment to Johnson & Schaefer on June 28, 1928 'as collateral to and security for * * * claims for fees, costs and expenses' and the subsequent sale of the judgment at sheriff's sale on September 5, 1928 'to satisfy a pledge', wherein all the right and title of the Canby Hereford Farms Company in and to its claim and verdict in the case of said corporation against O. A. Lende and I. J. Sawell was sold at sheriff's sale to Johnson & Schaefer. The...