Reilley v. Kinkead

• Decision Date: 16 November 1917
• Docket Number: 31677
• Citation: 165 N.W. 80,181 Iowa 615
• Parties: W. H. REILLEY, Appellee, v. A. L. KINKEAD, Appellant
• Court: Iowa Supreme Court

165 N.W. 80

181 Iowa 615

W. H. REILLEY, Appellee, v. A. L. KINKEAD, Appellant

No. 31677

Supreme Court of Iowa, Des Moines

November 16, 1917

Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.

FROM a judgment entered by default, and from the court's refusal to set the same aside and permit defendant to answer, he appeals.--Reversed and remanded.

Reversed and remanded.

T. F Bevington, for appellant.

D. H Sullivan, for appellee.

WEAVER J. GAYNOR, C. J., PRESTON and STEVENS, JJ., concur.

OPINION

WEAVER, J.

On March 18, 1916, plaintiff caused original notice to be served upon defendant to the effect that, on or before April 28, 1916, a petition would be filed in the court below demanding a recovery of judgment upon an account for work and labor. The notice was made returnable on the second day of the May, 1916, term of the district court, beginning on the 8th day of that month. The petition was filed April 24, 1916. No appearance being entered or answer filed, the court, Hon. J. W. Anderson, Judge, presiding, entered the defendant's default, and rendered judgment against him on May 24, 1916. On May 25, 1916, defendant appeared by Mr. Bevington, his counsel, and moved to set aside the judgment and default, and for a recall of the execution which had been issued thereon. In the same connection, said counsel offered to pay the costs which had been made in the case, and asked leave to file a verified answer and counterclaim. He also tendered an answer, taking issue on the plaintiff's claim and setting up a counterclaim in an amount equal to or greater than the claim sued upon. The motion was also supported by Mr. Bevington's affidavit, as follows:

"I, T. F. Bevington, on oath depose and say that I was employed by the defendant just a few days prior to the commencement of the May term, 1916, of this court. That the defendant was sent to me, and that, prior to his appearance with the original notice and copy of the petition, I was entirely unacquainted with him; that, on the occasion of his calling at my office, I talked with him about ten minutes and turned him over to Norman Lewis, my second assistant, for the purpose of having Mr. Lewis take down a statement of his defense and counterclaim, which Mr. Lewis did. That, just prior to the commencement of the May term of said court, and for ten days thereafter, an exceedingly large number of new cases were coming into my office, wherein I was employed in some instances for the plaintiff, and some for defendants; that, because of the exceedingly large office calendar kept and maintained by me as an attorney, I have for some time been obliged to have two assistants, a regular stenographer, and on many occasions an extra stenographer. That the stenographer at that time employed was one Kittie Gardner, who has recently come to my office from her home at Rock Rapids, Iowa; that, at the very beginning of the May term, I was making an effort, with the aid of my two assistants, to have Miss Gardner file in their proper order actions in which I was interested for plaintiffs, and also in their proper order actions in which I was interested for the defendants; that, according to my usual practice, I first prepare the matters and things coming up at the May term in actions where I represent the plaintiffs, and then look after the matter of appearance, making the motions, demurrers or filing answers in matters where I appear for defendants; that, in accordance with my usual custom, I had one basket on my desk wherein the papers in connection with the new cause of action in which I appeared for plaintiffs are kept, and one basket wherein the papers in actions where I appeared for the defendants are kept. That I had never met the defendant in the instant case before, and gave him such a short interview, that personally, in looking over the papers and pleadings, was not sufficiently advised with reference to the same to know whether-it was the plaintiff, W. H. Reilly, or the defendant, A. L. Kinkead, that I had been employed to represent. That the original notice, copy of the petition, and all the papers connected with this instant case were by some of my assistants put into the usual folder, but that the same, for some reason unknown to me, were filed under the name of W. H. Reilly, and with the causes of action in which I represented the plaintiffs. That for this reason I was not aware until yesterday, May 22d, while engaged in an argument in an important case before Judge Sears, that the interests of my client, A. L. Kinkead, had not been looked after, and that the appearance had not been made for him in said cause. That, about three o'clock in the afternoon of May 22d, Mr. Kinkead came to the north court room, where I was engaged in the argument as aforesaid, and in a few seconds' consultation advised me as to the situation. That, upon adjournment of court, I immediately took the matter up with my office force, and found the facts to be as hereinbefore stated. That in this action execution has been issued, and the sheriff has levied on the automobile belonging to the defendant. That the judgment entered by default is for the principal sum of $ 129.29, and the costs of the action. That in all my practice a default has never been entered against one of my clients. That, unless the default and judgment entered thereon is set aside, I will feel it my duty to pay the judgment and costs out of my own pocket, for the reason that my client informs me that he has a complete defense, and in addition to that, a counterclaim against the plaintiff for the sum of $ . That my client, the defendant, has signed and sworn to an answer and counterclaim verifying his former statements to Mr. Lewis of my office, which were by Mr. Lewis, at the time, reduced to writing. That my assistant, Mr. Lewis, is a lawyer who has been admitted to the bar in the state of South Dakota, but has not been admitted to the bar in the state of Iowa, and heretofore I have not directed him to, or intrusted him with making appearances, preparing, signing or filing papers of pleading in my stead. That I opened up my office here the last time on or about December 1st, 1915, and my office force of necessity is under process of organization. That, under the foregoing circumstances, I am willing personally to pay the costs incurred by reason of the failure on my part to appear for the defendant, and file his answer and counterclaim. That I, therefore, join with my client, the defendant, in asking the court to sustain the motion herewith filed to set aside the judgment under the terms herein indicated."

To this motion plaintiff objected, on grounds to the effect that the failure of defendant to appear and answer was due to no unavoidable casualty or misfortune, but to the negligence of himself and his counsel.

This motion and resistance were submitted to the court, Judge Anderson presiding, on June 2, 1916. On the same day, Judge Anderson, for some reason, passed the matter of said motion over to Judge George Jepson, also holding court at the same term, who on the same day entered an order overruling it, the order, as we understand it, being entered in the absence of counsel. On the next day, Mr. Bevington recalled the attention of the court, Judge Jepson presiding, to the case, and was proceeding to make a statement of some sort when a colloquy developed between him and the court which excited an apparent display of feeling on both sides. The court finally dictated into the record its version of the circumstances under which the decision of the motion had been passed over to Judge Jepson by Judge Anderson, and announced to counsel that the ruling thereon was set aside, and the matter was open for counsel to be heard. Mr. Bevington, apparently desiring to have the matter heard before another judge, asked for time till Monday morning to counsel with his client, and his request was denied, but the court finally gave him ten minutes in which to present an affidavit for change of forum. The affidavit was filed, setting forth counsel's belief that Judge Jepson was so prejudiced against him that his client could not get a fair and impartial ruling on the motion. The court, denying any feeling of partiality or prejudice in the matter, overruled the motion for a change. This was followed by further statements made of record by Mr. Bevington and by the court, which again overruled the motion to set aside the judgment and default. The defendant appeals.

I. We are not disposed to give much time or attention to the alleged error in refusing a change of forum. The motion seems to have had its impulse in the irritations of the moment growing out of an unfortunate impression on the part of counsel that his motion to set aside the default which had been entered against defendant was not being given the consideration to which it was entitled, and upon the part of the court that counsel was unjustly imputing to it a lack of...