Loter v. Metropolitan Life Ins. Co.

• Decision Date: 11 February 1941
• Docket Number: 45258.
• Citation: 296 N.W. 227,229 Iowa 1127
• Parties: LOTER v. METROPOLITAN LIFE INS. CO.
• Court: Iowa Supreme Court

296 N.W. 227

229 Iowa 1127

LOTER v. METROPOLITAN LIFE INS. CO.

No. 45258.

Supreme Court of Iowa.

February 11, 1941

Appeal from District Court, Lee County; Joseph R. Leary and James S Burrows, Judges.

Action to recover payments claimed to be due under a group policy of life insurance. Plaintiff appeals from a judgment dismissing the action for failure to comply with an order of court which required plaintiff to set out a copy of the group policy as a part of his petition. Defendant has filed a motion to dismiss the appeal which is sustained.

Appeal dismissed.

Hollingsworth & Hollingsworth and Robert H. Walker, all of Keokuk, for appellant.

Clark, Pryor, Hale & Plock, of Burlington for appellee.

MILLER, Justice.

This is an action at law wherein the plaintiff seeks to recover payments claimed to be due under a group policy of life insurance for permanent disability. The petition set out a copy of the certificate issued to the plaintiff as an insured under the group policy, but did not set out a copy of the group policy. Defendant filed a motion for more specific statement, asking that plaintiff be required to set out a copy of the group policy. The motion was sustained. Plaintiff filed two amendments to his petition, in each of which he refused to set out a copy of the group policy and undertook to avoid compliance with the order of court requiring him to do so. The defendant filed a motion to strike each of the amendments to the petition. Each motion to strike was sustained. Plaintiff then refused to plead further. Accordingly, on November 2, 1939, the court entered judgment dismissing plaintiff's petition at plaintiff's costs. From this judgment plaintiff attempted to appeal.

At the outset, we are faced with appellee's motion to dismiss the appeal, contending that appellant failed to comply with the requirements of Section 12837, which provides: " An appeal is taken and perfected by the service of a notice in writing on the adverse party, his agent, or any attorney who appeared for him in the case in the court below, and by filing said notice with return of service indorsed thereon or attached thereto with the clerk of the court wherein the proceedings were had." We think that the motion to dismiss the appeal is well grounded.

The parties have undertaken to establish the facts upon which each relies by affidavits. From these affidavits most of the facts are undisputed. The only real dispute arises over the question whether there was an oral agreement between counsel.

The judgment having been entered November 2, 1939, in order to comply with the requirements of Section 12832, it was necessary that the notice of appeal be served and filed as required by Section 12837 within four months after November 2, 1939, or not later than March 2, 1940. Counsel for appellant contend that on February 28, 1940, they called counsel for appellee on long distance telephone and asked, as an accommodation, permission to sign the firm name of appellee's counsel to the acceptance of service of a notice of appeal in order that the notice with the acceptance of service might be at once filed with the clerk of the district court and that, as a matter of accommodation, counsel for appellee consented that they do this. They further contend that, pursuant to such oral agreement, the firm name of counsel for appellee was signed to a duplicate original copy of the notice of appeal, accepting service on February 28, 1940, and that the notice with acceptance so indorsed thereon was filed on the same day with the clerk of the district court. On the same day the original copy of the notice of appeal was stamped filed by the clerk of the district court and was forwarded to counsel for appellee with a request that acceptance of service be indorsed thereon and that this copy of the notice of appeal be forwarded to the clerk of this court at Des Moines.

Counsel for appellee received the original of the notice of appeal and accepted service thereon on February 29, 1940, specifying that such acceptance of service was indorsed after the filing stamp of the clerk of the district court had been placed on it, and, pursuant to the express directions of counsel for appellant, forwarded it to the clerk of this court. The only notice of appeal, which was filed with the clerk of the district court, was that upon which acceptance of service was indorsed by counsel for appellant, acting pursuant to the alleged oral agreement with counsel for appellee.

Counsel for appellee challenge the affidavits of counsel for appellant with counter-affidavits and the attorney, with whom it is alleged the oral agreement was made, states under oath: " I have never authorized opposing counsel in any case to accept service of notice of appeal and I specifically state that I never gave any such authority * * * with respect to the case at bar."

Counsel for appellant contend that it is necessary for us to decide a disputed question of fact, to wit: whether or not an oral agreement was entered into pursuant to which counsel for appellant were authorized to sign the firm name of counsel for appellee accepting service of the notice of appeal. Counsel are mistaken. We cannot and do not determine the credibility of the affiants.

Paragraph 2 of Section 10922 of the Code 1939 provides as follows:

" 10922 Authority. An attorney and counselor has power to: * * *

2. Bind his client to any agreement, in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable, except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court."

The foregoing statute appears as Section 1616 of the Code of 1851 and has not been changed at any time since the adoption of that code. It has been repeatedly construed by this court. The following cases are illustrative: Hiller v. Landis, 44 Iowa 223, 224; Hardin v. Ry. & Const. Co., 78 Iowa 726, 727, 43 N.W. 543, 6 L.R.A. 52; Riegelman v. Todd, 77 Iowa 696, 697, 42 N.W. 517; Preston v. Hale, 65 Iowa 409, 410, 21 N.W. 701; Doerr v. S.W. Mut. Life Ass'n, 92 Iowa 39, 42, 60 N.W. 225; Searles v. Lux, 86 Iowa 61, 65, 52 N.W. 327; Taylor v. C., M. & St. P. Ry., 80 Iowa 431, 433, 46 N.W. 64; Barnes v. Ennenga, 53 Iowa 497, 498, 5 N.W. 597; State v. Stewart, 74 Iowa 336, 339, 37 N.W. 400; Borland v. C., M. & St. P. Ry., 78 Iowa 94, 95, 42 N.W. 590; Council Bluffs Loan & Trust Co. v. Jennings, 81 Iowa 470, 475, 46 N.W. 1006; Baily v. Birkhofer, 123 Iowa 59, 62, 98 N.W. 594.

In the case of Riegelman v. Todd, 77 Iowa 696, 697, 42 N.W. 517, 518, we state: " Appellants have filed a motion to strike from the files the additional abstract, on the ground that it was verbally agreed between the attorneys of the respective parties that a transcript should be waived, and the cause submitted in this court on the abstract of appellants. Affidavits of attorneys for appellants are submitted in support of the motion. The alleged agreement is denied by appellees, and cannot be established in the manner proposed. Code, § 213(2). The motion to strike will therefore be overruled."

In the case of Preston v. Hale, 65 Iowa 409, 410, 21 N.W 701, we state: " The appellants file affidavits tending to show that the appellee agreed to an abstract of the evidence, and virtually agreed to waive the certification of the evidence; and, while this is denied by the appellee, we are inclined to think that according to a preponderance of the evidence such is the fact. We are precluded, however, by statute from finding such fact upon affidavits as...