Okey v. Sigler

• Decision Date: 02 February 1891
• Citation: 82 Iowa 94,47 N.W. 911
• Parties: OKEY v. SIGLER ET AL.
• Court: Iowa Supreme Court

82 Iowa 94

47 N.W. 911

OKEY

v.SIGLER ET AL.

Supreme Court of Iowa.

Feb. 2, 1891.

Appeal from district court, Adams county; R. C. HENRY, Judge.

Action in equity to restrain an execution sale, and to cancel the judgment on which the execution was issued. There was a trial upon the merits, and a decree in favor of plaintiff. The defendants appeal.Dale & Brown and T. M. Stuart, for appellants.

H. T. Granger, for appellee.

ROBINSON, J.

On the 20th day of March, 1880, one O. F. Parsons, as principal, and the plaintiff, as surety, made and delivered to defendant Sigler their promissory note for the sum of $500. In October, 1880, Sigler brought suit against plaintiff and Parsons in the district court of Adams county, to recover the amount due on the note. Judgment by default was rendered against plaintiff on the 23d day of October, 1880, for the sum of $529.55, and costs. Parsons appeared and filed an answer which set up certain alleged defenses and a counter-claim. On his application, the cause was continued as to him. The cause was numbered 1,122. At that time there were two causes pending in the circuit court of Adams county in which Sigler was plaintiff and Parsons was defendant, numbered, respectively, 1,267 and 1,292. On the 11th day of January, 1881, Sigler and Parsons entered into an agreement entitled as in case No. 1,292, of which the following is a copy: “It is hereby agreed that judgment shall be entered in this case for the full amount thereof, without attorney's fees or costs, to defendant, and the mortgage duly foreclosed as prayed for in plaintiff's petition. It is also agreed that judgment shall be entered in full amount claimed in case number 1,267 of this court, and pending on appeal, wherein D. S. Sigler is plaintiff and O. F. Parsons and L. L. Parsons were defendants, against all of said defendants, and surety on appeal-bond. Also the case of D. S. Sigler, plaintiff, against O. F. Parsons and A. F. Okey in the district court of Adams county, Iowa, in the amount claimed, judgment shall be entered by the clerk of said district court against all defendants therein as claimed in plaintiff's petition. It is expressly agreed that no execution shall issue in the district court case until October 1, 1881, and to not issue in case number 1,267 as to Parsons until October 1, 1881, and to not issue in the case number 1,292, circuit court, until January 1, 1882. [Signed] O. F. PARSONS. L. L. PARSONS. D. S. SIGLER.” In pursuance of that agreement, judgment was rendered against O. F. Parsons in case No. 1,122 on the 24th day of March, 1881, for the amount due, with the provision that he should have a stay of execution, without giving bond, until the 1st day of October, 1881. In December, 1888, an execution was issued on the judgment against plaintiff, and placed in the hands of defendant Pomeroy, as sheriff, for service. He proceeded to serve the execution by levying it upon land owned by plaintiff. It is claimed by plaintiff that the agreement for judgment and a stay of execution was made, and the stay of execution was granted, without his knowledge or consent. That is denied by defendants, who contend (1) that plaintiff knew of the agreement, and that it was made with his consent; (2) that as plaintiff was a party defendant in case No. 1,122, the presumption of law is conclusive that he consented to all the orders made to which he did not object; (3) that plaintiff has been fully indemnified for all sums he may be required to pay on the judgment; (4) that the stay of execution granted to Parsons was no longer than that allowed by law, hence the agreement did not operate to extend the time of payment given by statute, and, therefore, did not operate to release plaintiff. A temporary injunction to restrain the enforcement of the judgment against plaintiff was issued and served. On the final hearing the district court found in favor of plaintiff, and granted him the relief demanded. That included the making of the injunction perpetual, and the canceling of the judgment against plaintiff.

1. The evidence as to the knowledge of plaintiff of the making of the agreement, and of his consenting thereto, is conflicting. Plaintiff denies that he had any knowledge of the making of the agreement, and he denies that he ever assented to it, or to the granting of the stay of execution. He is fully corroborated by the testimony of Parsons. The further fact appears that he was anxious to have judgment rendered against Parsons, and that he could have derived no benefit from the granting of the stay of execution. On the other hand, R. A. Moore testifies that he was the attorney of Sigler in obtaining the judgment against plaintiff and Parsons in the case in the district court; that it is his recollection that Okey and Parsons discussed the subject-matter of the agreement with him before it was finally made; that the provision in regard to the case in the district court was inserted at Okey's suggestion; and that the matter was fully talked over with Okey before the agreement was filed and assented to by him. The fact that Okey was surety only on the note was known, and, if the conversations related by Moore actually occurred, it is strange that he did not require Okey's signature to the agreement, and thus place his assent beyond question. The burden is upon defendants to prove that assent, but we think they have failed to establish it by a preponderance of the evidence. Appellants insist that Parsons is not a credible witness, and that his testimony should be disregarded; that Moore is a disinterested...