Shoemaker v. Smith

• Citation: 80 Iowa 655,45 N.W. 744
• Parties: SHOEMAKER v. SMITH ET AL.
• Decision Date: 24 May 1890
• Court: United States State Supreme Court of Iowa

80 Iowa 655

45 N.W. 744

SHOEMAKER

v.SMITH ET AL.

Supreme Court of Iowa.

May 24, 1890.

Appeal from district court, Marion county; O. B. AYERS, Judge.

Action in equity to foreclose a mortgage alleged to have been executed by defendants John and Jennie Smith on the N. W. 1/4 of the S. E. 1/4, and the N. 15 acres of the W. 25 acres of the S. W. 1/4 of the S. E. 1/4, of section 1, township 75, range 18, Marion county. Appellants deny that the plaintiff ever had a mortgage on the said N. W. 1/4 of the N. E. 1/4, and that no such mortgage was of record; that defendant De Kock purchased the land claimed to have been mortgaged at sheriff's sale on a judgment against John Smith for part of the purchase price, and received a sheriff's deed therefor, which he held in trust for defendant Phillips; that appellants had no notice of the existence of such a mortgage as that claimed before said purchase, nor until after the commencement of this action. John Smith having become insane, E. R. Hays was appointed guardian ad litem, and answered, denying all the allegations in the petition and amendments. The case was submitted to the court, and judgment and decree entered in favor of the plaintiff. Defendants De Kock and Phillips appealed.Bosquet & Earl, for appellants.

Bolton & McCoy and Prouty & Gesman, for appellee.

GIVEN, J.

1. The notice of appeal was not served upon defendant John Smith, but was served on E. R. Hays, his guardian ad litem. Appellee contends that under rule 28 and section 2615, Code, the service should have been upon John Smith, and also upon his guardian; and that, as Smith has not appeared nor joined in the appeal, nor been brought into this court by notice, no final decree can be entered, and hence the appeal should be dismissed. Rule 28 requires that service shall be made in matter of appeal in the same manner as provided for service of notice in the district court. Said section 2615 provides that service of notice upon persons who have been judicially declared to be of unsound mind “may be made upon him, and upon his guardian.” “An appeal is taken by the service of a notice in writing on the adverse party, his agent, or any attorney who appeared for him in the case in the court below.” Code, § 3178. The record shows that Mr. Hays appeared in the court below, not only as guardian ad litem, but also as attorney for John Smith. In Hunt v. Hawley, 70 Iowa, 183, 30 N. W. Rep. 477, and Moore v. Held, 73 Iowa, 538, 35 N. W. Rep. 623, there was no service whatever on the absent defendants. We think the service in this case on the guardian was sufficient.

2. Appellants' motion to suppress certain depositions, on the grounds that it does not appear therefrom that the witnesses were sworn, that the depositions are not properly certified, and that one of them is not signed, is sufficiently answered by the agreement of counsel under which they were taken. It was stipulated that T. R. Beman should act as commissioner, in lieu of a notary; that the witnesses should be sworn by competent authority; and that Mr. Beman should take the depositions on the type-writer; “and when filed the depositions in this way taken shall have the same force and effect as depositions taken in the ordinary manner.” Surely, the motion should not be sustained, in the face of such an agreement. Appellants objected to the testimony of J. B. Bolton, as to transactions and communications between him and the insane defendant, John Smith, with respect to the execution of the mortgage in suit, and also to his being allowed to interpret his own hand-writing in the mortgage. It is not shown that Bolton comes within the provisions of section 3639, Code. He was therefore a competent witness. When the writing is obscure, what it is may be shown aliunde. 2 Phil. Ev. 733. It was competent for Bolton to give his construction of the characters used, and for the court to say therefrom, and from the writing, what the fact was.

3. Appellants moved to exclude Prouty & Gesman from appearing as attorneys for plaintiffs, on the grounds that they had formerly appeared for their co-defendant Mrs. Smith. It appears that Prouty & Gesman were consulted by Mrs. Smith, and entered their appearance for her in this case; that afterwards they withdrew their appearance for Mrs. Smith, since which time they have appeared for plaintiff. It also appears that prior to their withdrawal Mr. Prouty had a conversation with Mr. Earl, attorney for appellee, concerning the mortgage as it appeared of record, to which he testifies. We think it evident that Mr. Earl would not have engaged in this conversation with an attorney opposed to the interests of his client. While it may be true that Prouty & Gesman concluded that Mrs. Smith had no interest to protect, and therefore withdrew their appearance for her, their appearance for the plaintiff, and the use made of the conversation with Mr. Earl, cannot be approved. However improper the conduct of Prouty & Gesman in appearing for plaintiff under these circumstances may be, it is no reason for reversing the action of the district court.

4. We find the facts touching the claim in question to be, in substance, as follows: In May, 1881, John Smith purchased the land in controversy from one Holbrook, giving his note, with C. Phillips as surety, for $300, balance of the purchase price, and has occupied the land as a homestead since. In 1882, Holbrook assigned the note before due to Snow and Haber, who brought suit thereon after maturity, pending which Mrs. Phillips paid Snow and Haber, taking an assignment of the note to De Kock, who prosecuted it to judgment. On October 15, 1884, De Kock purchased the land at execution sale on the judgment, and thereafter received a sheriff's deed, and...