Lundon v. Waddick

• Decision Date: 23 May 1896
• Citation: 67 N.W. 388,98 Iowa 478
• Parties: LUNDON v. WADDICK.
• Court: Iowa Supreme Court

98 Iowa 478

67 N.W. 388

LUNDON

v.WADDICK.

Supreme Court of Iowa.

May 23, 1896.

Appeal from district court, Jones county; William G. Thompson, Judge.

Appeal from an order dismissing defendant's petition for a new trial of a case of the same title, which resulted in a verdict and judgment for the plaintiff in the sum of $600. Affirmed.Remley & Ercanbrack, for appellant.

Sheean & McCarn, for appellee.

DEEMER, J.

Appellee presents a motion to strike appellant's assignments of error because not filed in time. It appears that these assignments were not incorporated in the original abstract, but accompanied the appellant's argument. This argument, with the assignments of error was served upon counsel for appellee on December 21, 1895,--more than 10 days before the commencement of the January term, and before it became necessary, under our rules, for appellee to make his argument; and, while it was not filed at the time required by our rules (section 51), yet, as the appellee suffered no prejudice or inconvenience by reason of the delay, the motion will be overruled.

2. The original action was to recover damages for an assault and battery committed by the defendant, and the amount asked was $2,127. The defendant filed a general denial, and a counterclaim for a slander. The action was commenced in the year 1893, and was tried in the court below some time in October of that year. The jury returned a verdict for plaintiff in the sum of $800. Defendant filed a motion for a new trial, and the record shows the following judgment entry, of date October 6, 1893: “On condition of the acceptance by plaintiff of $600 in full for all damages herein, and on the further condition that the defendant also accept same, and agrees not to appeal to the supreme court herein, judgment is hereby entered on verdict for said $600 and costs against defendant, and motion for new trial is withdrawn.” The petition for a new trial was filed on the 2d day of October, 1894, and is based upon the ground of newly-discovered evidence. Attached to the petition were a number of affidavits, which, in the progress of the trial, were, by agreement of parties, treated as depositions of the various parties who made them. The defendant, in resistance, filed a number of counter affidavits, and upon these affidavits from either side the case was tried and determined. The alleged newly-discovered evidence went to the extent of the plaintiff's injuries. The first question on the merits of the controversy relates to the effect to be given the judgment entry which we have quoted. It is contended by appellee that it was in effect not only a stipulation or agreement between the parties that the defendant should not appeal, but that it also amounts to a full settlement of the matters in litigation between the parties, and that for this reason the court below properly overruled the petition for a new trial. Appellant contends that “no court can prevent any party from appealing to this court by making the judgment on condition that one of the parties do not appeal.”...