Risser v. Martin

• Decision Date: 17 October 1892
• Parties: RISSER ET AL. v. MARTIN ET AL.
• Court: Iowa Supreme Court

86 Iowa 392

53 N.W. 270

RISSER ET AL.

v.MARTIN ET AL.

Supreme Court of Iowa.

Oct. 17, 1892.

Appeal from district court, Mahaska county; D. RYAN, Judge.

The district court sustained a motion of plaintiffs for a judgment nunc pro tunc against John N. Martin. From the order sustaining the motion, and from the judgment rendered thereon, he appeals.L. C. Blanchard, for appellant.

Bolton & McCoy, for appellees.

ROBINSON, C. J.

On the 10th day of July, 1880, appellant executed a statement for a judgment by confession of which the parts material to a determination of this appeal are as follows: “In the circuit court of Mahaska county. Risser & Rutz v. Martin & Phillips. Confession of judgment. I, J. N. Martin, being duly sworn, depose and say that I am a member of the copartnership of Martin & Phillips, and that said firm are justly indebted to the plaintiffs, Risser & Rutz, in the sum of three hundred forty-three and twenty one hundredths dollars, which indebtedness arose from the following account of goods and wares purchased of the plaintiffs by the said firm: * * * I, as a member of said firm, authorize the clerk of the circuit court of Mahaska Co., Ia., to render a judgment against me as a member of said firm, and against the said firm of Martin and Phillips, for the said sum of three hundred and forty-three and twenty one hundredths dollars and the costs thereof, the same to draw 6 per cent. interest, and that execution may issue for the enforcement of said judgment. Witness my hand this 10th day of July, 1880. JOHN N. MARTIN.” This statement was duly verified, was filed in the office of the clerk of the circuit court of Mahaska county, and an entry of judgment by confession was made to the clerk. This was done on the day the statement was executed, and the entry of judgment was subsequently approved by the court. The judgment was entered against “the said defendants,” and, as “Martin & Phillips” were the only defendants named in the entry, it was in effect a judgment against them as a firm, and not against Martin as an individual. On the 19th day of September, 1890, plaintiffs filed in the district court a motion asking the court to render judgment nunc pro tunc against Martin on the statement for judgment which he had executed. The motion was supported by an affidavit of one of the attorneys of plaintiffs, which stated in effect that plaintiffs were nonresidents of this state, and had never been present in court when their cause was pending, and that the attorneys for plaintiffs procured the statement, but did not discover that judgment had not been entered against Martin until the day the motion was filed. On that day notice of the motion was served on Martin. A few days later he appeared to the motion, and filed a paper in resistance. The grounds upon which the resistance was based were stated to be that “(1) the alleged confession of judgment is void, one partner having no power to confess judgment for the firm. (2) The alleged confession of judgment did not authorize the circuit court to render a judgment against this defendant, John N. Martin, individually, and there is nothing in the record to show that the circuit court intended to render a personal judgment against this defendant. (3) This court is not presided over by the same judge who presided in the circuit court at the time said alleged confession of judgment was made and at the time the alleged record entry was made, and this court has no power or authority to correct the records of the circuit court after such records have been made and signed by the judge thereof, and more than ten years after such record was made. (4) The record fails to show any intention of the circuit court to enter a personal judgment against this defendant on said alleged confession of judgment; and the decision of the circuit court in refusing to enter a personal judgment, there having been no appeal therefrom, is final and conclusive, and this court has no power or authority to reverse or modify the decisions or judgments of the circuit court. (5) The plaintiff is guilty of laches in acquiescing in said judgment entry and decision of the circuit court, and in failing to take any steps to reverse, correct, or modify the same for more than ten years; and it is now estopped by its own laches from seeking to correct or modify the record made. (6) The alleged agreement for judgment is barred by the statute of limitations, more than ten years having elapsed from the time of the making thereof before the motion to correct the same was filed.” The only evidence submitted with the motion and resistance was the affidavit described, and the entry of judgment and approval of the court. The motion was sustained, and judgment was rendered against Martin for $343.21, with interest thereon at 6 per cent. per annum from the 10th day of July,...