Mitchell v. Brennan
| Decision Date | 08 March 1932 |
| Docket Number | 41185 |
| Citation | 241 N.W. 408,213 Iowa 1375 |
| Parties | MRS. M. M. MITCHELL, Appellant, v. LEO BRENNAN et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Des Moines Municipal Court.--RUSSELL JORDAN, Judge.
This is an appeal from an order of the Municipal Court of the City of Des Moines, setting aside a judgment. The plaintiff appeals. The facts appear in the opinion.
Affirmed.
H. H Sawyer, for appellant.
George Malcolm, for appellee.
On March 20, 1931, the plaintiff-appellant, without counsel, commenced an ordinary action in the Conciliation Division of the Municipal Court of Des Moines, asking for judgment for unpaid rent of $ 50.00. The attempt at conciliation failed, and the cause was transferred by the plaintiff to the regular Municipal Court docket, and a date was fixed for trial.
The defendants demanded a jury trial, and the cause was then assigned, at the request of the plaintiff, for the next regular jury period of the court.
An amended and substituted petition was filed, increasing the demand to $ 280.00. Attached to the petition was a copy of the lease under which the plaintiff was claiming the tenants, the defendants, became liable for rent. The lease provided, in substance, that the landlord should have a lien upon all personal property brought into the premises for use, whether exempt or not.
On April 22, 1931, the cause came on for hearing. The plaintiff and her counsel appeared in court ready for trial. The defendants did not appear personally or by counsel. Default was not taken, however, but plaintiff's attorney communicated with the attorney for the defendants by telephone. It is claimed that in this telephone conversation between the attorneys for the respective parties, it was agreed that the plaintiff should take judgment against the defendants for $ 135.00. The presiding Judge was induced to go to the telephone and talk to defendants' counsel to verify this agreement. Accordingly, a judgment was entered in favor of the plaintiff and against the defendants for $ 135.00. The judgment provided:
"It is further ordered that a special execution issue for attachment of any and all property or goods kept or used by defendants on the premises, 3506 Second Street, and a general execution for any deficiency."
An execution was issued, and some property claimed to be exempt was levied upon.
On April 30, 1931, the defendants filed a motion to set aside the judgment, and an affidavit of merits. The motion, in substance, alleged that the portion of the judgment foreclosing the landlord's lien on all property, exempt or otherwise, under the lease, was fraudulently procured by the plaintiff in violation of the agreement the attorneys for the respective parties had over the telephone. Thereafter, the Municipal Court, Jordan, Judge, sustained the motion to set aside the judgment and decree. From this action of the court, the plaintiff has perfected this appeal.
I. Section 10681, found in Chapter 475, of the Code of 1931, pertaining to Municipal Courts, is as follows:
(Writer's italics.)
It is apparent that under the foregoing provisions the motion to vacate the judgment because of alleged irregularities in obtaining it was filed within a proper time, and was a proper form of procedure in the Municipal Court.
Manifestly, there was an effort on the part of the attorneys for the respective parties in this cause to enter into an agreement as to the form of judgment which was to be entered in the cause. The trial court was drawn into the conversation. The plaintiff's attorney was present in court, and the trial court was induced to talk to the defendants' attorney over the telephone.
The defendant...
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