Loos v. Callendar Sav. Bank

• Decision Date: 10 March 1916
• Docket Number: No. 30674.,30674.
• Citation: 174 Iowa 577,156 N.W. 712
• Parties: LOOS v. CALLENDAR SAV. BANK ET AL.
• Court: Iowa Supreme Court

174 Iowa 577

156 N.W. 712

LOOS

v.CALLENDAR SAV. BANK ET AL.

No. 30674.

Supreme Court of Iowa.

March 10, 1916.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

Suit in equity to set aside a judgment obtained by one Frank O. Peterson, now deceased, against the plaintiff in the district court of Polk county, Iowa, on October 7, 1912. The trial court granted the relief prayed, and defendants, who are the heirs at law and representatives of the deceased, the sheriff of the county, and an indorsee of the original cause of action, appeal. Reversed.R. & F. G. Ryan, of Des Moines, for appellants.

B. F. Loos, pro se.

DEEMER, J.

The judgment which is sought to be set aside was rendered upon a promissory note for the sum of $1,000, signed by plaintiff herein, and made payable to F. O. Peterson, now deceased. It was executed May 22, 1903, and, as we understand it, was secured by second mortgage upon some real estate. Subsequently the note was indorsed by Peterson to the Callendar Savings Bank for some shares of stock in an insurance company. The bank brought suit on this note in the district court of Polk county against Loos and Peterson, the indorser of the note. Loos pleaded fraud and duress in obtaining the note, and Peterson interposed a general denial. Upon a hearing before a jury the trial court directed a verdict against Loos, which, upon appeal to this court, was reversed. See Callendar Savings Bank v. Loos, 142 Iowa, 1, 120 N. W. 317. Procedendo was filed in the district court May 3, 1911, and on August 20, 1912, plaintiff in the action filed a trial notice. The cause was on the calendar for the September and November terms of that year, and it was marked “for trial.” On September 12, 1912, the judge presiding called the calendar, and reaching the case of Callendar Bank v. Loos, dismissed the same on his own motion for want of attention. On October 4th of the same year and during the same term, the court on plaintiff's motion reinstated the cause upon the docket and assigned it for trial on October 7, 1912. All these orders were made without any notice being served upon Loos. The Callendar Bank assigned the note back to Peterson, and he was substituted as plaintiff. When the case was reached for trial on the day assigned Loos did not appear, and Peterson took judgment against him upon the note for the amount thereof with interest. Thereafter, on February 19, 1915, plaintiff commenced this action to set aside the judgment so obtained as being without jurisdiction in that he had no notice of the reinstatement of the case after its dismissal ‘for want of attention.’ He pleaded that he was in no manner indebted to Peterson upon the note, and that the judgment was obtained through fraud. He also averred that he had no notice of the judgment until just before the commencement of the suit when the sheriff appeared with an execution and was about to levy on his property and harass and annoy him with the execution. The heirs of Peterson (he in the meantime having died) were made parties defendant, as also were the sheriff and the Callendar Bank, and he asked that the judgment be canceled and set aside, and defendants restrained from enforcing the same. The petition was amended in some particulars, and the petition, as amended, was demurred to by the defendants; but this demurrer was overruled, and defendants then amended, denying generally and pleading acquiescence, laches, and estoppel on the part of plaintiff. On these issues the case was tried, and the facts so far recited are not in substantial dispute.

The original case of Callendar Savings Bank v. Loos was reversed by this court for errors committed on the trial, and it was remanded for a new trial, no judgment being ordered by this court, and as already pointed out procedendo was returned and the case was again placed upon the docket for trial. A trial notice was filed for the September, 1912, term of court, but the presiding judge evidently overlooked this, and in calling the docket ordered a dismissal of the case at plaintiff's costs for want of attention. Within a short time thereafter, and during the same term, the judge's attention was called to the matter, and he set aside the order and judgment, ordered a reinstatement of the case, and assigned it for trial on October 7, 1912. When reached on this assignment plaintiff herein, defendant in that action, made no appearance, and judgment was rendered against him on the notes. Nothing was done by him with reference to this judgment until he commenced this suit, and he testified that he knew nothing of the judgment until a few days before when the sheriff appeared to levy upon some property of his, and that he then commenced this independent action in equity to set aside the judgment because of want of jurisdiction in the court over his person. Whether or not he knew of the judgment before this time is a matter of dispute; the trial court evidently finding, however, that he did not know of the judgment. When this suit came on for trial it seems that most of the papers in the case, the transcript of the evidence and some other matters, were lost and although plaintiff was present in court he, to substantiate the claim that he had a defense to the note, introduced in evidence the abstract used on the appeal of the Callendar Savings Bank Case, and read therefrom what purported to be his testimony on the trial of that case--this over the objections of the defendants that it was incompetent, irrelevant, and immaterial, and that such testimony was also inadmissible because of the incompetency of the witness to testify as to transactions with Peterson, now deceased.

The case presents these questions of law: First. Was the trial court without jurisdiction of plaintiff, defendant in judgment, when it ordered the judgment against him? Second. Was plaintiff required to show that he did not owe anything on the notes when the judgment was obtained?

Upon the first question we have recently held that an order of dismissal such as was here entered could not be expunged, and the cause reinstated at a subsequent term of court without notice to the party in whose favor the original dismissal was entered. See Des Moines Union Railway Co. v. District Court of Polk County, 153 N. W. 217. The question was as to how far a court might go in this respect at the same term without notice, and was expressly left open for future consideration. Section 243 of the Code of 1897 provides that the record made by the district court is under the control of the court, and may be amended or any entry therein...