Owen v. Smith

• Decision Date: 18 May 1912
• Parties: OWEN ET AL. v. SMITH, JUDGE, ET AL. BEACH v. SMITH, JUDGE, ET AL.
• Court: Iowa Supreme Court

155 Iowa 463

136 N.W. 119

OWEN ET AL.

v.SMITH, JUDGE, ET AL.

BEACH

v.SMITH, JUDGE, ET AL.

Supreme Court of Iowa.

May 18, 1912.

Certiorari proceedings to the Linn county district court. Annulled and remanded.Voris & Haas, of Marion, for plaintiffs.

DEEMER, J.

These two cases are submitted together upon a single brief for the plaintiffs; the defendants making no appearance here. The proceedings are by certiorari to review the action of the defendant judge, while sitting as judge of the district court of Linn county, in setting aside and vacating judgments of dismissal in two separate actions brought by one John McAllister against Carl Owen and Emma Kendall and E. N. Beach, respectively, to enjoin them from further conducting alleged liquor nuisances. These actions were commenced for the January, 1911, term of the Linn county district court; and in each the defendants appeared and filed motions for more specific statement. These motions were submitted and sustained, and, as plaintiff therein refused to comply with the orders, judgments of dismissal were entered in each case on March 23, 1911. No exception appears to have been taken, and certainlyno notice of appeal was given, in either case. At the next term of said court, commencing on April 10th of the same year, and on the 21st of that month, the trial court made the following order in each case: “Now, to wit, this 21st day of April, 1911, it still being of the regular April, 1911, term of this court, Hon. Milo P. Smith, presiding judge, the judgment of dismissal made in this cause at the January, 1911, term of this court, to wit, on March 23, 1911, is hereby set aside on the verbal request of plaintiff's attorney, M. S. Odle, and the cause reinstated as to pars. No. 1, 3, 4, and 5 of the petition. The attorneys for defendants, Voris & Haas, being present in courtroom, are called, and object that no legal cause is shown for setting aside said judgment, and that the court has no jurisdiction. Said objections are overruled, and defendants except.”

[1] This was without notice to the defendants in the action; and no appearance was made for them, unless the recitation in the order should be taken as constituting either an appearance by attorneys, or as sufficient notice to bind their clients. Manifestly there was no such notice to the defendants or their attorneys as the law requires; and there was no such appearance as would bind their clients. True they objected to the order of vacation, and said to the court that it had no jurisdiction. There is no presumption that th...