Shaw v. Addison

• Decision Date: 08 May 1945
• Docket Number: 46675.
• Parties: SHAW v. ADDISON et al.
• Court: Iowa Supreme Court

18 N.W.2d 796

236 Iowa 720

SHAW v. ADDISON et al.

No. 46675.

Supreme Court of Iowa

May 8, 1945

Parrish Guthrie, Colflesh & O'Brien, of Des Moines, for appellants.

Paul W. Steward and Holliday & Myers, all of Des Moines, for appellee.

BLISS Justice.

The judgment sought to be vacated was entered in a proceeding brought by the plaintiff to set aside the probate of her father's will upon the ground, among others, that its execution was procured by the undue influence of the defendant, Addison, a sister of the testator. The trial was begun January 25, 1943 and the jury returned a verdict for plaintiff February 20 1943, on which judgment was entered April 5, 1943. This court affirmed the judgment May 2, 1944. Shaw v. Duro, 14 N.W.2d 241. On September 26, 1944, defendants filed, in this action in the court below, the petition before us 'to vacate the final judgment in this cause and to grant a new trial.' After reciting the chronology of the matters of record in the district court, the petition alleged:

'Par. 11. That these defendants allege that the verdict and judgment entered thereon were obtained by irregularity and fraud practiced in obtaining the same in the following particulars, to-wit: That one Beatrice Kinser (erroneously listed as Beatrice Kinzer on the jury panel) * * * was selected to act as one of the jurors in this cause * * *; that the husband of said juror, by name Merdia Kinser, was unemployed and attended every day during the trial of said case which lasted several weeks; that some time before the arguments started, and before the case was submitted to the jury, the said Merdia Kinser, * * * and Paul W. Steward, attorney for * * * plaintiff, entered into a bet wherein the said attorney bet said juror's husband the best hat the Utica had that he, the attorney, would lose the case; that the juror spent the night after making said bet, as usual, with his wife, the said juror; that subsequently thereto, after arguments of counsel and instructions of the court, said jury retired for its deliberations and rendered a verdict for the plaintiff, causing said attorney to lose his bet; that said attorney paid the bet the following Monday morning with two five dollar bills; that attached hereto, marked Exhibit 'B', and made a part hereof, * * * is the affidavit of Merdia Kinser, * * *.' The petition also alleges that defendants could not have discovered this matter earlier with reasonable diligence and learned of it only accidentally after May 2, 1944.

The affidavit, sworn to in Omaha, August 28, 1944, where affiant was about to take up his permanent residence, stating that his wife was a juror in the Duro case, continued:

'That I was in the Court House every day during the January term of court, being at that time unemployed, and after the jury was impanelled in the aforementioned case, I was in the courtroom every day and listened to the testimony. At that time my wife, Beatrice Kinser, and I were living together and we would at times go downtown together and home together. Paul W. Steward, attorney at Des Moines, Iowa, represented plaintiff, * * * and John Gillespie represented the defendant, * * *. After lunch on Thursday, February 18, 1943, I went back to the Polk County Court House, and in the elevator ran into Paul W. Steward, and we had the following conversation: 'I just made the remark, 'You've got the old maid whipped.' He said, 'What makes you think so?' and, I said that it's strong enough that I'll bet the best hat that Utica's got. He said, 'Well, its worth several hats if I can win it.'

'After Court was over on this Thursday, I went home and my wife and I had dinner together and we came down to the Court House the next morning together. To the best of my recollection, the arguments started on Thursday, continued on into Friday, and the jury was instructed about 4:00 o'clock Friday afternoon, February 21, 1943. The jury returned a verdict for the plaintiff, and about 7:00 o'clock Friday night I called Mr. Steward at his office and said, 'Well, I won my bet, didn't I?' He said, 'Come on down in the morning and collect your money,' and I said, 'I can't come tomorrow, I'm working', and he said, 'Well, come in the first time you're down.' I went down Monday morning to his office in the Valley Bank Building, and Mr. Steward gave me two $5.00 bills to buy my hat. I bought it and still have it. The trial lasted over two weeks and I was there practically every day of the trial.'

Notice of filing the petition was served on plaintiff, September 27, 1944.

Plaintiff's motion to dismiss the petition alleged: Failure to file petition within the times provided in Code section 11551, or in chapter 552; '3. that said petition shows on its face that it was not filed within one year from the date of rendition of the judgment and is barred under either or both Chapter 552 of the 1939 Code of Iowa and Rule 253 of the Iowa Rules of Civil Procedure.' The motion also alleged lack of diligence in discovering the matters stated in the affidavit, and ground 6: 'That even though defendants had proceeded by timely motion or petition, said petition wholly fails to allege or show any fraud, irregularity or misconduct which would entitle them to a new trial for the following reasons:' a. The petition and affidavit fails to show that any bet was made prior to the return of the verdict. b. The alleged conversation which is claimed to constitute a bet was not with any of the jurors and there is no claim or showing that the fact of the alleged bet was ever made known to any of the jurors or that it in any manner influenced the verdict. c. The petition and affidavit fail to allege or show that plaintiff's counsel knew the said Kinser was the husband of a juror. d. The petition and affidavit show the alleged conversation was not invited or initiated by plaintiff's counsel and that he merely made a joking reply to a proposal which no reasonable person could have considered seriously. e. There is no claim, allegation or showing that the alleged bet influenced or affected the jury in any manner or degree or that the defendants were prejudiced thereby or deprived of a fair trial upon the merits. Another ground was that there was no allegation or showing of a meritorious defense or that a retrial would accomplish a different result.

By reference the defendants made the entire record and proceedings in the trial in the district court in the will contest and on the appeal in this court a part of their petition.

The petition does not expressly show on its face whether it is at law or in equity, or under what rule of civil procedure or section of the 1939 Code, if any, it was filed. The filings in this court are designated as at law. It is argued by appellee in this court, and it is not denied by appellants, that the only contention made by the appellants in the district court was that the petition was at law and was so drawn and filed, and was timely, because, as they claimed, the year of limitation began, not on the rendition of the judgment in the district court, but on the affirmance of the judgment in the supreme court. In other words, their only contention in the district court was that the final judgment was that of the supreme court. The ruling of the district court clearly indicates that this was the contention of the defendants.

In their printed opening argument in this court appellants assign and rely upon two errors of the trial court for reversal.

I. The first one is that: 'The court erred in holding that the petition * * * was not filed within one year from the date of the final judgment.'

As already noted the judgment in the district court was entered April 5, 1943, and was affirmed in this court on May 2, 1944, and the petition to vacate was filed September 26, 1944, more than a year after the entry of judgment below and less than a year after its affirmance. They insist that the affirmance constituted the final judgment, and they filed the petition in the district court to vacate the so-called judgment of the supreme court.

The judgment of the district court was entered prior to the time the new rules of civil procedure were effective, and at a time when sections 12787 et seq. of the 1939 Code were in force, while the petition to vacate was filed after the said new rules took effect. The statutes should perhaps be considered as governing except as to the manner of procedure provided by the rules 252 and 253. The matter is of little or no importance as the code sections and the rules noted are, in substance and effect, the same.

Appellants concede that this court has held contrary to their contention in Gray v. Coan, 48 Iowa 424, 425. In that case the court was construing sections 3154 to 3157, inclusive, of the Code of 1873, which correspond to sections 4091 to 4094, inclusive of the Code of 1897, and to sections 12787 to 12793, inclusive, of the Code of 1939. In the cited case, the decree in the lower court was entered March 6, 1874. It was affirmed April 7, 1875, and the petition to vacate was filed February 17, 1876. The court, after referring to these dates, said: 'The plaintiff is, therefore, too late, and a demurrer to his petition was correctly sustained. But plaintiff insists that the limitation of one year provided by the statute for this proceeding, runs from the date of judgment of this court affirming the decree of the court below. Plaintiff asks for a new trial, not in this court, but in the court from which the appeal was taken. The judgment which he seeks to set aside was entered more than one year before his petition was filed. The statute provides that his petition shall be filed within one year after the judgment was entered which he seeks to disturb by his proceeding. This ends the matter,...