Selby v. McDonald
| Decision Date | 12 March 1935 |
| Docket Number | 42124. |
| Citation | 259 N.W. 485,219 Iowa 823 |
| Parties | SELBY et al. v. McDONALD. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; O. S. Franklin, Judge.
From an order vacating an order for a new trial, defendant has appealed.
Affirmed.
Order granting motion for new trial filed April 22, 1930, where directed verdict was entered in 1916 but judgment was not entered until April 18, 1930, held properly set aside as made without jurisdiction, since directed verdict was " verdict of the jury" within statute requiring motions for new trial to be made within five days after verdict. Code 1931, § 11551.
Clark Byers, Hutchinson & Garber and P. M. Hutchinson, all of Des Moines, for M. A. Selby and Valley Nat. Bank.
Guy A Miller and Denmar Miller, both of Des Moines, for H Armstrong.
Charles E. Hunn and Hiram Hunn, both of Des Moines, for Finlay McDonald.
This case has its beginnings in the dim mists of the past, and comes like an echo from the tomb of King Tut. The interested parties proceeded with their case until a verdict was reached, and then, like Rip Van Winkle, seem to have fallen asleep and fifteen years later appear again upon the scene of combat.
On March 20, 1908, one Finlay McDonald, defendant herein, executed a promissory note in the sum of $2,000, payable on or before March 20, 1910, to M. A. Selby or order. The note was secured by a mortgage upon land in the state of Kansas. Suit was brought on this note April 22, 1910, in the district court of Iowa, in and for Polk county, being cause Law No. 42-19298. The parties spent considerable time in making up the issues. Several amendments, substituted pleadings, and motions were filed. The there was a lull in the activities until October 23, 1913, at which time the court dismissed the case for want of attention. On motion the cause was reinstated January 24, 1914; on January 16, 1916, a jury was drawn, sworn, and the trial commenced; at the close of the evidence, and after the defendant had rested his case, the following motion to direct a verdict for plaintiff was sustained: " Comes now the Valley National Bank and moves this court for an order directing the jury to return a verdict in its favor upon the note sued upon, for the reason that it appears conclusively from all the evidence in the case, that the Valley National Bank is now the owner of the note sued upon in good faith before maturity, for a valuable consideration and is entitled to judgment against the defendant, Finlay McDonald, for the amount due thereon."
The following is the record of the verdict returned:
" Now on this day this cause comes on for further hearing, the parties appearing as heretofore, and the jury came as on yesterday, and after hearing the evidence offered and introduced, the jury now on motion of the Intervenor, Valley National Bank, renders their verdict as follows, to-wit:
‘We, the jury by the direction of the court, and on motion of the Valley National Bank, find for the Valley National Bank, and against the defendant, Finlay McDonald, in the sum of $2,053.37.
[Signed] W. H. Garver, Foreman.'
Whereupon the jury are excused from the further consideration of this cause. Defendant Finlay McDonald excepts."
This verdict was entered in Court Journal 108, at page 200, on January 20, 1916. Nothing further was done in this matter until February 3, 1930, when the clerk of the district court made and entered of record the following judgment entry:
This was entered of record in Court Journal 108, at page 201, being in the same book on the page opposite the entry of the directed verdict. Thereafter, to wit, on April 18, 1930, the attorneys for the defendant seemingly convinced the clerk that he had made an error, and he wrote in lead pencil on the margin of the above judgment entry: " Error, see entry Journal 172, page 77." Whereupon the defendant's attorneys prepared another judgment entry on April 18, 1930, as follows:
" Be it remembered that the above entitled cause comes on for final entry of judgment, the court having heretofore on January 20, 1916, sustained a motion for directed verdict.
It is therefore ordered and made the judgment of this court that the Valley National Bank have and recover judgment against Finlay McDonald in the sum of $2053.33 with interest thereon at 6% per annum from January 20, 1916, and the costs hereof.
To all of which the said Finlay McDonald excepts."
This was signed by the judge and entered of record by the clerk.
On April 22, 1930, the defendant filed a motion for a new trial, setting up the history of the case and several pages of alleged errors committed, the burden of which seems to be that he was not permitted to introduce his evidence and that the court summarily directed a verdict. From the record there seems to have been considerable discussion between the trial court and the attorneys for the defendant over the procedure to be followed in proving up their case, with the result that the court, as usual, in controversies between counsel and the court, got the best of the argument. However, the record shows that the defendant rested his case before the direction of the verdict.
The motion for a new trial was granted on April 26, 1930. It does not appear that the plaintiffs or their attorneys had any notice of, or that they appeared or took any part in, the proceedings relative to the granting of a new trial. On March 28, 1933, the plaintiff Valley National Bank filed a motion to set aside the order granting a new trial, to which resistance was filed by the defendant. On April 8, 1933, H. Armstrong filed a motion to expunge from the record the order granting a new trial, which sets up the fact that the Valley National Bank on January 29, 1930, assigned to H. Armstrong the " judgment recovered by it on or about the 20th day of January, 1916 against Finlay McDonald in the sum of $2053.33 and interest, in a cause entitled M. A. Selby v. Finlay McDonald and N. A. Rice, defendants, Valley National Bank, Intervenor," and also assigned what is designated " a certain claim, prosecuted by it as intervenor in a case entitled M. A. Selby v. Finlay McDonald and N. A. Rice, defendants, Valley National Bank, Intervenor" ; that on the 19th day of December, 1929, the said Finlay McDonald, as plaintiff, filed his petition at law against H. Armstrong, as defendant, in the district court of Polk county, Iowa, asking judgment in favor of said Finlay McDonald and against said H. Armstrong in the sum of $2,600, with interest and costs; that thereafter, and within the time required by law, the said H. Armstrong filed unto said petition an answer and set-off, alleging that he was the owner of all the rights, titles, and interests of the said Valley National Bank, intervener, in said cause, Law No. 42-19298, and in said answer and set-off asked that the petition of the plaintiff be dismissed and that the defendant have a judgment against the plaintiff for his costs; that, after the filing of said answer and set-off, the said cause, instituted by the said Finlay McDonald against the said H. Armstrong, was dismissed, and on or about February 17, 1931, said Finlay McDonald commenced a second suit against the said H. Armstrong, asking to recover judgment in the sum of $3,022.10, with interest and costs, to which the said H. Armstrong filed an answer and set-off. To this motion of H. Armstrong the defendant filed a resistance. Thereafter, to wit, on April 11, 1933, the following order was entered by the court:
From this order defendant has appealed to this court.
From the arguments of counsel, we gather that the bone of contention seems to be that the trial judge, back in 1916, refused to permit the defendant to introduce his evidence. However, they seem to have lost all interest in the case until the defendant sued H. Armstrong and Armstrong set up this judgment, entered on a directed verdict, as a set off to the defendant's claim. At this stage, the defendant's attorney, Mr. Hunn, who, by the way, appears to have represented the defendant from the inception of this case, according to his statement to this court in his argument, went to the clerk and had the clerk write on the previous entry of judgment the word " error," and then he, as attorney for the defendant, prepared what he claims was a valid judgment against his client, the defendant, and had it signed by the judge of the district court of Polk county, and had the clerk enter it of record. It is counsel's contention that the purpose of this was to dispose of this unfinished matter. It might be inferred, from what immediately followed, that counsel was seeking some method by which he could open up this case and obtain a new trial, and, the time for filing a motion for a new trial having long since passed, he ingeniously devised this method. At any rate, the legal dilemma, with all its entanglements, is now before this court for solution.
The plaintiffs contend that the court had no jurisdiction to grant a new trial, that the time for filing a motion for a new trial had long since passed, and that the order granting a new trial was null and void and of no effect. Defendant, on the...
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