Melick v. The First National Bank of Tama City
| Decision Date | 22 October 1879 |
| Citation | 2 N.W. 1021,52 Iowa 94 |
| Parties | MELICK v. THE FIRST NATIONAL BANK OF TAMA CITY ET AL |
| Court | Iowa Supreme Court |
Appeal from Tama District Court
ACTION in equity to set aside a judgment by confession. The relief asked was granted and defendants appeal.
AFFIRMED.
Stivers & Leland, for appellants.
Struble & Kinne, for appellee.
I.
The appellants insist this cause is triable de novo; it will be so conceded. The undisputed facts are that the plaintiff signed a note as surety for Furry and John Newcomer, payable to Harrison, Hall & Warren to secure future advances of money to be made by the said payees to said Newcomers. Afterward the plaintiff and Newcomers confessed judgment on the note in favor of Harrison, Hall & Warren. This action was brought to set aside said judgment on the ground of fraudulent representations made by the payees at the time the note was executed. The fraudulent representations, as claimed by the plaintiff, were, that just previous thereto, and at the time the note was executed, he inquired of Harrison, one of the payees, whether the Nowcomers were indebted to Harrison, Hall & Warren. Harrison replied they were not. The truth being that they were then indebted in the sum of between $ 1200 and $ 1300 and for which they had sometime previously confessed judgment. The plaintiff signed the note reluctantly, and we feel satisfied he would not have done so had he been told the truth.
The claimed proposition is sustained by the evidence of the plaintiff and the Newcomers. All of them testify the inquiry and the reply were made as above stated. The only evidence contradictory thereto is that of Harrison, but we are constrained to believe the decided preponderance is with the plaintiff, and that the alleged facts in this respect are true.
That the representations aforesaid constitute a fraud and are sufficient to avoid the note in the hands of the payees as to the surety is not seriously contested by counsel for the appellants. The authorities so hold. 1 Parsons on Notes and Bills, 236; 1 Story's Eq. Jur., § 324. Graves v. Tucker, 10 S. & M. 1; Selser v. Brock, 3 Ohio St. 302; Ham v. Greve et al., 34 Ind. 18; Franklin Bank v. Cooper, 36 Me. 179; Chambers v- Cochran et al., 18 Iowa 159, 166.
II. The more serious question is whether the plaintiff is barred of any relief because of the confession of judgment. Before the commencement of this action it was assigned to the bank defendant, herein. As it was not negotiable the bank took it subject to all equities existing at the time of the assignment between the plaintiff and assignors, Harrison, Hall & Warren. Code § 2084.
Harrison, Hall & Warren are not parties to this action, and it is objected that, conceding the judgment may be set aside in a proceeding instituted for that purpose in which they are parties, it cannot be done in this action.
That there is a defect of parties is a ground of demurrer. Code, § 2648. No demurrer was filed. If such fact does Code, § 2850. The objection now urged was not raised in the court below by either answer or motion in arrest. It must, therefore, be deemed waived, conceding it would have been available if made at the proper time, and in the proper manner.
III. If at the time the judgment was confessed the plaintiff had...
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