Sloan v. Jepson
| Decision Date | 13 February 1934 |
| Docket Number | No. 42380.,42380. |
| Citation | 217 Iowa 1082,252 N.W. 535 |
| Parties | SLOAN v. JEPSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; Miles W. Newby, Judge.
Action in equity for the cancellation of a judgment entered in an action at law. Decree dismissing plaintiff's petition, and he appeals.
Affirmed.
Marks & Eik, of Sioux City, for appellant.
C. N. Jepson and Gleysteen, Purdy & Harper, all of Sioux City, for appellee.
It appears that on October 10, 1921, in an action then pending in the district court of Woodbury county, in which the Bennett Bond & Mortgage Company was plaintiff and E. C. Warburton and appellant were defendants, judgment was entered against appellant in the sum of $1,326.48. This judgment was subsequently assigned to the appellee C. N. Jepson, who was attorney for the plaintiff in that action. Henderson, Fribourg & Hatfield, a firm of attorneys then doing business in Sioux City, appeared for the defendant Sloan, appellant herein, and filed an answer for him. Subsequently, the above firm, with the consent of the court, withdrew its appearance and the judgment mentioned was entered as by default. It is the claim of appellant in this action that neither himself nor any member of his family over fourteen years of age was ever served with original notice of the commencement of the aforesaid action, and that the appearance of Henderson, Fribourg & Hatfield and the filing of an answer by them therein was wholly unauthorized and done without appellant's knowledge or consent.
Actions are commenced in this state by the service of an original notice upon the defendant by one of the methods provided by statute. Sections 11055 and 11060 of the Code of 1931. The defendant may appear by entering an appearance in the appearance docket and by announcing in open court that he appears, or by taking part, either personally or by attorney, in the trial of the case, or by filing a memorandum to that effect in the clerk's office. Section 11087, Code 1931.
Appellant was, and had been for many years, personally acquainted with Fribourg, but did not know the other members of the firm. No return of the service of an original notice was ever filed in the action. Appellee Jepson testified that it was formerly his custom to deliver original notices to other officers than the sheriff for service. Appellant, at the time judgment was entered, was a resident of Plymouth county. This witness further testified that he well remembered seeing and inspecting the return on the original notice of the commencement of the aforesaid action which was duly verified by affidavit before the judgment was entered. It was, however, as stated, never filed in the office of the clerk of the district court. A. T. Bennett, a member of the Bennett Bond & Mortgage Company, testified that after judgment was entered, he had a conversation with appellant with reference to the issuance of the execution on the aforesaid judgment, and that in the conversation he agreed to take a renewal note for the amount due, but was informed by appellant that he was unable to either pay the judgment or give him security therefor.
According to the testimony of this witness, appellant made no claim that he did not have knowledge of the action or of the judgment. Appellant's indebtedness on which judgment was entered was as surety for his codefendant Warburton.
[1][2] The burden rested upon appellant to prove the allegations of his petition. It is presumed as a matter of law that where an attorney appears for a party to an action he has authority to do so. Harshey v. Blackmarr, 20 Iowa, 161, 89 Am. Dec. 520; Potter v. Parsons, 14 Iowa, 286;City of Cherokee v. Railway Co., 157 Iowa, 73, 137 N. W. 1053. Such presumption may, however, be overcome by clear and satisfactory proof. Walsh v. Doran, 145 Iowa, 110, 123 N. W. 999;Wheeler v. Cox, 56 Iowa, 36, 8 N. W. 688.
[3] It will be observed that the judgment in the original action was entered more than ten years before this action was commenced. The delay is explained, however, to some extent at least, by the fact that a fresh attempt to collect the judgment was made by appellee in 1931. On January 6th of that year, Jepson in a letter addressed to appellant demanded payment of the judgment. Appellant, in reply, stated that ...
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