Miller v. Bryson

Decision Date14 May 1915
Docket NumberNo. 29954.,29954.
Citation152 N.W. 568,171 Iowa 354
PartiesMILLER v. BRYSON ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Clinton County; A. P. Barker, Judge.

This appeal brings up for review the action of the district court in setting aside an affirmance of judgment in justice court, made under and by virtue of the provisions of section 4559 of the Code of 1897; the motion to set aside the judgment of affirmance having been filed after the time fixed in said statute for filing such motion. Affirmed.E. L. Miller and Skinner & Coe, all of Clinton, for appellant.

Ellis & McCoy and Oakes & Oakes, all of Clinton, for appellees.

GAYNOR, J.

This was an action commenced before a justice of the peace and appealed. The cause was tried on the 18th day of August, 1913. Judgment was entered for the plaintiff. The defendants gave notice of appeal to the district court, filing a bond as required by law. The notice was served on the 4th day of September, 1913, and was signed by Oakes & Oakes, J. E. Purcell, and F. W. Ellis, attorneys for the defendants, and within the time limited for the taking of appeals. Upon taking the appeal, the justice made a transcript of the proceedings, and sent them by mail to the clerk of the district court. The clerk received the same, but failed to docket the case. On the 12th day of November, 1913, the plaintiff appeared by his attorney, E. L. Miller, had said case docketed, paid the docket fee, and on motion had the judgment of the justice affirmed. Under the statute, the case should have been docketed by the defendants, and the docket fee paid, before noon of the second day of the November term. On the 11th day of December the defendant W. J. Bryson appeared and filed a motion, supported by affidavits, praying that the judgment of affirmance be set aside. The motion is as follows:

(1) That there was a waiver by attorney for plaintiff of the docketing of said case by noon of the November term, 1913, of said court.

(2) That there was a waiver of the payment of the docket fee in said case by said plaintiff's attorneys.

(3) That under the understanding existing between Ellis & McCoy, attorneys, and J. H. Edens, clerk of said court, docket fees in cases where said Ellis & McCoy are interested as attorneys are not required to be paid in cash, but are charged by the said clerk.

Thereafter, and on the 15th day of December, 1913, defendants filed an amendment to their motion setting forth that the judgment was rendered by accident, mistake, or unavoidable casualty. In support of this motion the defendants filed the affidavit of their attorney, F. W. Ellis, from which we gather the following facts: That F. W. Ellis, through one J. E. Purcell, an attorney at law, requested the justice of the peace to make a transcript in said cause, and to forward the same to the clerk of the district court. That thereafter said transcript was made by said justice and duly forwarded to and received by the clerk. That it had been arranged between said clerk and the firm of Ellis & McCoy, of which firm F. W. Ellis, was a member, that in all cases coming to said court in which fees were required to be paid the clerk would file or docket the same and charge the docket fee to said firm. That said attorney understood that, under this arrangement, the clerk would not require the payment in advance of the docket fee before docketing the case. That, during the first days of the September term, the affiant conversed with the attorney for the plaintiff. That the attorney asked the affiant whether he was employed in the case, and affiant answered that he was employed to take an appeal, meaning and intending thereby that he was employed to prosecute the appeal and try the case in the district court. He supposed Miller so understood it; that during said September term he had a further talk with plaintiff's attorney concerning the trial of said cause, which conversation was substantially as follows: Plaintiff's attorney requested of this affiant that said case be tried during the September term. This affiant answered that he was not certain that it could be so tried, but that it probably could if the attorneys could agree upon a time that would be convenient to them, but that, in any event, it would be tried at the November term. Plaintiff's attorney said he was anxious to have the case disposed of. In this conversation affiant believed and understood that the case had been docketed, and would be tried at the November term when reached, unless by agreement it could be taken up earlier. That, believing that said cause had been docketed, he took no further steps to have the same put upon the docket or to pay the fee. That this affiant had no knowledge of the entry of affirmance until about the 3d or 4th day of December. During all the time affiant believed that the case had been docketed, and the docket fee charged to his firm. That on account of the conversation with plaintiff's attorney he was lulled into security and lead away from ascertaining the true facts as to whether the case had been docketed for the November term. That, if defendants had known that said case had not been docketed and the fee charged as aforesaid, he would have ascertained the fact before noon of the second day of the November term, and would have had said case docketed under the arrangement between his firm and the clerk as to the payment of the fee.

In support of the motion to set aside the judgment of affirmance, in addition to the affidavit of Ellis, the defendants filed the affidavit of the clerk of the district court as follows:

“I, J. H. Edens, being first duly sworn on oath, state that I am clerk of the district court in and for Clinton county, Iowa; that the transcript from the justice court of Wm. O'Connell, a justice of the peace of Clinton county, Iowa, in the above-entitled case, was sent me by said justice by mail; that I did not read said transcript when the same was sent me, and that the notice of appeal attached thereto was not on the outside of said transcript, but is the fifth page thereof, and, had I observed or noticed the name of F. W. Ellis as one of the attorneys for the defendants therein named, I should have docketed said case and charged the firm of Ellis & McCoy with docket fee immediately upon receipt of said transcript, or shortly thereafter; that said firm of Ellis & McCoy have credit with me as clerk of the court for docket fees, and do not pay such docket fees when cases are filed by them, whether of appeal or otherwise, at the time of filing, but such docket fees are charged in my books against the firm of Ellis & McCoy, and said firm of Ellis & McCoy and said F. W. Ellis had the right to rely upon such understanding in docketing cases, whether of appeal from justice court or otherwise.”

In addition to these affidavits, the defendants filed certain other affidavits tending to show a meritorious defense. There was no showing made contrary to what is herein set out.

This motion of defendants to set aside the affirmance was sustained, and an order entered canceling and setting aside...

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