Streeter v. Gleason

• Decision Date: 22 May 1903
• Citation: 95 N.W. 242,120 Iowa 703
• Parties: GEORGE S. STREETER, Appellant, v. A. M. GLEASON, Defendant, ANDREAS JENSEN, Garnishee, Appellees
• Court: Iowa Supreme Court

95 N.W. 242

120 Iowa 703

GEORGE S. STREETER, Appellant, v. A. M. GLEASON, Defendant, ANDREAS JENSEN, Garnishee, Appellees

Supreme Court of Iowa, Des Moines

May 22, 1903

Appeal from Buena Vista District Court.--HON. A. D. BAILIE, Judge.

AFFIRMED.

J. A Tracy for appellant.

W. L Smith and H. F. Schultz for appellees.

OPINION

THE opinion states the case.--Affirmed.

WEAVER, J.

The appellant, having obtained a judgment against the defendant Gleason, caused an execution to issue thereon, under which writ Jensen was garnished February 5, 1901. At the time of such service Jensen signed a written answer to the sheriff to the effect that he was owing the defendant $ 650, which would be due March 1, 1901. Thereafter, and before any further proceedings were had upon said garnishment, another execution was issued, and on February 19, 1901, Jensen's answers as garnishee were again taken by the sheriff. In this answer the nature of the transaction between Gleason and Jensen was explained as being a contract for the purchase of land from the former by the latter, and that the sum of $ 650 was to be paid on the execution and delivery to the garnishee of a deed for the property so purchased, but such deed had not yet been delivered. On February 26, 1901, notice of the first garnishment was served on Gleason in the state of Minnesota, but no return of such service was made until March 11, 1901. On March 8, 1901, the garnishee having made no appearance, plaintiff moved for judgment against him on his first answer, and judgment was so entered for the sum of $ 407.40 and costs. On April 4, 1901, and during the same term of court, the garnishee appeared and filed a motion, sustained by affidavits, to set aside said judgment, restating the facts set forth in his answers of February 19, 1901, and showing that his contract with Gleason required him to pay only upon the conveyance of the land; that in truth at the time of said garnishment (though then unknown to garnishee), Gleason had conveyed the land to another person, from whom the title must come to the garnishee; and that the indebtedness of $ 650 became and was due from the garnishee to the holder of said title, and not to Gleason. The garnishee further showed that he was of foreign birth, unable to clearly understand the English language; did not fully comprehend the nature of the papers served upon him; and did not suppose he was required to attend court to protect his rights, or that any judgment could be rendered against him without further opportunity to defend, and only learned otherwise when the sheriff appeared with an execution and levied upon his property. The court sustained the motion to set aside the judgment against the garnishee, and from said ruling the plaintiff at once appealed to this court. Afterward, on further hearing, the court discharged the garnishee, and entered judgment against plaintiff for costs, and from such judgment plaintiff also appeals.

I. It is argued by appellant that as judgment had been entered against the garnishee and the record had been signed by the judge the trial court had no power or jurisdiction to set aside the entry and reopen the proceedings upon garnishee's motion. The position thus taken is untenable. The signing and approval of the record does not make the entry a finality. The court is given express authority by statute to change or expunge any order or ruling at any time during the term at which it was made. Code section 243. It may thus set aside a default or vacate a judgment upon cause shown or if satisfied that a mistake or wrong has been done may make such order upon its own motion. Chapman v. Allen, Morris 23; Brace v. Grady, 36 Iowa 352; Taylor v. Lusk, 9 Iowa 444; Kirby v. Gates, 71 Iowa 100, 32 N.W. 191; C. I. & D. R. R. v. Estes, 71 Iowa 603, 33 N.W. 124; Wolmerstadt v. Jacobs, 61 Iowa 372, 16 N.W. 217. Appellant's argument, and the authorities cited by him, are based very largely upon the provisions of chapter one, title twenty, of the Code, concerning proceedings to reverse, vacate, and modify judgments. This chapter has no reference to cases like the one before us, where the application to set aside is made during the term at which the judgment is entered, but applies exclusively to proceedings instituted after the adjournment of such term. See Code, section 4091. We hold, therefore, the court had authority to entertain the motion.

II. The judgment against the garnishee was clearly erroneous, and the court could do no less than sustain...