McConnell v. Avey

• Decision Date: 23 May 1902
• Citation: 90 N.W. 604,117 Iowa 282
• Parties: S. R. AND I. C. MCCONNELL, Appellants v. DALLAS B. AVEY. D. J. ODELL, DANSON & BUTLER AND GEORGE W. BAILY, Trustee in Bankruptcy, Appellees
• Court: Iowa Supreme Court

90 N.W. 604

117 Iowa 282

S. R. AND I. C. MCCONNELL, Appellants v. DALLAS B. AVEY. D. J. ODELL, DANSON & BUTLER AND GEORGE W. BAILY, Trustee in Bankruptcy, Appellees

Supreme Court of Iowa, Des Moines

May 23, 1902

Appeal from Kossuth District Court.--HON. W. B. QUARTON, Judge.

APPEAL from the modification of a decree entered by the trial court. The facts will appear in the body of the opinion.

Affirmed.

E. V Swetting and E. A. Morling for appellants.

Frederick M. Curtiss and Sullivan & McMahon for appellee Baily trustee. Sullivan & McMahon for appellee Odell. W. C. Danson and J. C. Raymond for appellees Danson & Butler.

OPINION

DEEMER, J.

Originally this was an action to recover possession of specific personal property, based on the ground that plaintiff was induced to part with the same under false and fraudulent representations made to it by defendant Avey, to whom the goods were shipped. Defendants Odell and Danson & Butler claimed the goods under a chattel mortgage made to them by Avey; and defendant Baily trustee, claimed them in virtue of bankruptcy proceedings instituted against Avey after this action was commenced. Thereafter an amended and substituted petition in equity was filed, and the case, on plaintiff's motion, was transferred to the equity docket for trial. On the issues tendered by the amended and substituted petition in equity and the answers thereto, the cause was tried to the court at the April, 1900, term, and, by agreement, taken under advisement, to be decided in vacation as if rendered during the April term. During vacation, and on September 10, 1900, the trial court wrote out a decree finding for plaintiff as against all defendants, and rendering judgment against each and all of them for the value of the goods, with interest and costs. This decree was signed by the judge, and sent to the clerk of the Kossuth county district court, who entered it upon the proper records of said court. The regular September, 1900, term of the Kossuth county district court, commenced on the 17th of that month, and continued until November the 5th, on which last-named date it adjourned sine die. On October 6, 1900, defendants Danson & Butler, filed a motion to modify the decree by canceling the judgment rendered against them, on the ground that no evidence was adduced on the trial against them, and on the further fact that it was conceded on the hearing that plaintiff had no cause of action against them. This motion was submitted to the court in term time, and on the 20th day of October, 1900, the following rule was made, which was duly served on plaintiffs: "And now, to-wit, on this 20th day of October, A. D. 1900, this cause coming on for hearing upon the motion of Danson & Butler to modify the decree signed in this cause so that the same shall not be a judgment against Danson & Butler; and the court, on its own motion, hereby orders that the said motion be taken, up for consideration on the 3d day of November, 1900; and the court further orders that the question as to whether the said decree should be modified so as not to be a judgment against the defendant D. J. Odell, and also as against George Baily individually, be taken up and considered at the same time, and on the same date. And it is further ordered that notice of the time and place of hearing on said motion be served upon the plaintiffs, S. R. McConnell and I. C. McConnell, and that the said hearing is set at ten o'clock a. m., November 3, 1900, to which time this term of court is adjourned. You will take notice hereof, and govern yourselves accordingly." On November 2d the plaintiffs appeared and resisted the motion of Danson & Butler, and filed objections to the modification of the decree. These objections were based on the ground that the court had lost jurisdiction of the case; that the parties were not properly before the court, and that the motion was filed too late (it being the 14th day of the September term); and that the grounds of the motion were insufficient to justify the order asked. The motion and objections were submitted, and on November 5th, and during term time, the court made a modified decree dismissing the plaintiffs' petition in equity as against Danson & Butler and Odell, and withdrawing that part of the decree of September 10th which rendered judgment against them. This last...