Martin Bros. Box Co. v. Fritz
| Decision Date | 14 May 1940 |
| Docket Number | 44922. |
| Citation | 292 N.W. 143,228 Iowa 482 |
| Parties | MARTIN BROS. BOX CO. v. FRITZ et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Russell Jordan, Judge.
Suit in equity to vacate a judgment and enjoin defendants from enforcing same. The decree was for the defendants. Plaintiff appeals.
Affirmed.
Isador Robinson and Herman G. Boesche, both of Des Moines, for appellant.
Herbert H. Hauge, of Des Moines, for appellees.
This is a suit in equity to vacate a judgment recovered in an action at law and to enjoin the enforcement thereof. The petition contains four divisions. Each division incorporates all allegations of the petition which precede it so that each is cumulative. The petition asserts the following allegations:
(1) Plaintiff is an Indiana corporation, defendant Fritz is a resident of Polk County, Iowa, the other defendants are the clerk of the district court and the sheriff of Polk County. On April 11, 1936, Fritz procured a judgment against the plaintiff company in the district court of Polk County copy of which judgment is attached, as Exhibit A. No notice was served on the company and it did not appear. Copy of the original notice with return of service is attached, as Exhibit B. The purported service was invalid and defective was not served upon an officer or agent of the company, and the person that was served was merely designated as one who claimed to be its agent. Fritz was guilty of fraud and perjury in asserting that one Herbert Stahlhut, upon whom service was had, was a general agent of the company when Fritz knew he was merely a travelling solicitor whose only authority was to solicit and receive orders at his own expense, and forward same to the company for approval or disapproval. A supporting affidavit as to such facts is attached, as Exhibit C. Plaintiff is a foreign corporation with no office or agency in Iowa, no official residing in Iowa and is not authorized to do business in Iowa. The action was not connected with and did not grow out of any office or agency of the company in Iowa. Plaintiff has never owed Fritz anything.
(2) Fritz practiced fraud and perjury by asserting that he was an agent of the company under an oral contract, such assertion, being false, and practiced fraud and perjury by asserting that he received products of the company, sold them for it, and remitted therefor to it, said assertions being false.
(3) On December 21, 1937, Fritz commenced an action at law in the Dearborn Circuit Court in Indiana on the judgment against the company. The cause proceeded to trial, and, upon a verdict of a jury, judgment was rendered for the company and against Fritz. Copy of the transcript of proceedings in the Indiana court is attached as Exhibit D. The decision of the Indiana court is an adjudication of the questions involved herein, and, by reason thereof, Fritz is estopped to assert the validity of the judgment the company seeks to vacate.
(4) Fritz caused an execution to issue on the Polk County judgment, has garnished a creditor of the company, and seeks to condemn funds owed to it to pay said judgment. The company will suffer irreparable injury and has no adequate remedy at law.
The prayer of the petition was that the judgment be vacated, defendants be enjoined from enforcing the same, particularly by said garnishment, and for general equitable relief and costs.
Defendant Fritz filed answer admitting the identity of defendants and the recovery of judgment on April 11, 1936. The other allegations of the petition were denied. The answer further asserted that on June 8, 1936, the company filed in the district court of Polk County what was termed a " special appearance and petition to vacate" the judgment of April 11, 1936. Copy of the special appearance and petition to vacate is set out as Exhibit A. On November 16, 1937, after a full and complete argument on said special appearance and petition to vacate, the same was overruled. All of the matters asserted in Divisions I and II of the petition were fully submitted and adjudicated against the company, and it is estopped from obtaining the relief here sought. Also, it is estopped and foreclosed from maintaining this suit by the limitations fixed in Section 12793 of the Code 1935. The prayer of the answer was that the petition be dismissed, and for costs.
At the trial, the record, pertaining to the recovery of judgment in the action at law and the proceedings on the special appearance and petition to vacate such judgment, was introduced in evidence. It appears that Fritz, to support the allegations of his petition, testified to the following facts. He is a resident of Des Moines, Iowa; a salesman selling jobbing supplies, such as corrugated boxes, folding cartons, etc.; sold merchandise for Martin Brothers Box Company for a period of six to eight months. Herb Stahlhut was a salesman for the company, his territory including Iowa and parts of Nebraska, Illinois and Missouri. Fritz was employed by Stahlhut to work for the company. Stahlhut stated he had authority to hire Fritz and an oral contract of employment was made. Fritz did business with the company on that basis. In sending in orders, some of the orders were sent by Fritz to Stahlhut. Others were sent direct to the company. Fritz's commission was to be four per cent of the sales, except on what was called pool cars. The commissions earned by Fritz were not paid. Fritz testified to the various sales made by him. There was also identified and introduced in evidence correspondence had with the company, advising them of the claim and pendency of the action. It was Fritz's understanding that the company would pay the commissions. His total commissions amounted to approximately $385. After suit was commenced, the company was advised of the suit, and a copy of the petition was sent to it.
The judgment of April 11, 1936, was entered on default. The original notice was served upon Herbert Stahlhut, as an agent of the company. If such service conferred jurisdiction, the company was in default when the judgment was entered.
The special appearance and petition to vacate, filed on June 8, 1936, asserted that Martin Brothers Box Company was not and never had been a resident of Polk County, Iowa, had not had an office in Iowa and no officer of the company had been a resident of Iowa; the return of service of the original notice did not constitute service on the company, shows on its face that such service was illegal and gave the court no jurisdiction; Herbert Stahlhut, upon whom the notice was served, was not an officer of the company, and his employment was as a salesman contacting trade in a restricted territory. His compensation was on a basis of a drawing account applied against commissions earned. He was without authority during his employment to bind the company in any way except as to solicitation of contracts for material to be furnished purchasers. He had no authority to employ any sales agents or to parcel out any of his territory and could in no way bind the company for such employment or splitting of territory. If Fritz had any claim against any person, it was not against the company. This special appearance and petition to vacate was verified by counsel and supported by affidavit of Fred J. Martin, president of the company.
The order entered November 16, 1937, recited that the cause came on for hearing on special appearance and motion to vacate judgment and the court being fully advised in the premises, the motion was overruled with exception to defendant.
The transcript of proceedings in the Dearborn Circuit Court in the State of Indiana was introduced and showed that the petition was filed December 21, 1937, asserted the judgment of April 11, 1936, and prayed for judgment thereon. The answer contained a general denial and also asserted substantially the same facts which were asserted in the special appearance and petition to vacate heretofore reviewed. At the trial it was shown that such special appearance and petition to vacate had been filed and overruled. The plaintiff Fritz objected to submitting the cause to a jury. The objections were overruled. A jury was impanelled, evidence introduced, motion for directed verdict in favor of Fritz overruled, the jury was instructed, returned a verdict for the defendant company, and judgment was entered accordingly on June 15, 1938. Motion for new trial was asserted and overruled.
The record shows no appeal from the ruling of the district court of Polk County on the special appearance and petition to vacate, and no appeal from the judgment of the Dearborn Circuit Court. The court found that the equities are with defendant Fritz. The petition herein was dismissed, injunction denied, and judgment entered for costs. Plaintiff, Martin Brothers Box Company, appeals.
Whereas appellant asserts that the original notice, served upon Stahlhut as its agent, was insufficient to confer jurisdiction and appellee contends to the contrary, it is not necessary for us to decide that question. Each party relies upon a plea of estoppel by former adjudication. One or the other of such pleas must be sustained. Accordingly, the merits of the proposition need not be decided.
Appellee relies upon the decision on the special appearance and petition to vacate the judgment of April 11, 1936, as an adjudication that the court had jurisdiction to enter such judgment and asserts that the appellant, having failed to appeal from such adverse decision, is bound thereby and cannot now litigate the questions there adjudicated. The trial court sustained such contention. We hold that its decision must be affirmed.
The special appearance and petition to vacate is in the nature of a combination of pleadings. It seeks...
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