Tomlinson v. Litze

• Decision Date: 29 January 1891
• Citation: 47 N.W. 1015,82 Iowa 32
• Parties: WILLIAM TOMLINSON, Appellant, v. EZEKIEL LITZE, Appellee
• Court: Iowa Supreme Court

47 N.W. 1015

82 Iowa 32

WILLIAM TOMLINSON, Appellant, v. EZEKIEL LITZE, Appellee

Supreme Court of Iowa, Des Moines

January 29, 1891

Appeal from Jones District Court.--HON. J. D. GIFFEN, Judge.

ACTION in equity to set aside and cancel the record of an alleged judgment. There was a trial upon the merits, and a judgment in favor of the defendant. The plaintiff appeals.

Reversed.

Welch & Welch, for appellant.

No appearance for appellee.

OPINION

ROBINSON, J.

The record submitted to us discloses the following facts: In August, 1886, the defendant commenced an action against plaintiff before one G. W. Halsey, a justice of the peace, to recover the sum of one hundred dollars. On the twenty-sixth day of that month there was a trial by jury which resulted in the return of a verdict on the same day, in favor of the plaintiff in that action, for the sum of thirty-five dollars. On the eleventh day of September, 1886 and again on the sixteenth day of that month, the defendant in that action went to the office of the justice with an appeal bond for the purpose of taking an appeal, but found that judgment had not been entered. On the third day of November, 1886, an attorney for plaintiff visited the office of the justice, and found that no judgment had then been entered. The justice moved out of the township, in which he resided when the trial was had, about the first of December, 1886, and, just before he left, he entered judgment on the verdict, but plaintiff was not advised of that fact, although effort was made in his behalf to ascertain what the justice had done. A transcript of the judgment so entered was filed in the office of the clerk of the district court of Jones county on the seventh day of April, 1888, the amount of the judgment for damages and costs then being more than one hundred dollars. The plaintiff claims that he first learned of the judgment about the time this action was commenced in August, 1888; that the verdict was unjust; that he owed defendant nothing, and, had the justice entered a judgment as required by law, he should have appealed therefrom, and had another trial; and that he was prevented from taking an appeal by reason of the failure of the justice to perform his duty. He asks that the judgment be set aside and canceled, and that he have general equitable relief.

Section 3552 of the Code, in regard to proceedings in justice's courts, is as follows: "In cases of dismissal confession, or on the verdict of a jury, the judgment shall be rendered and entered upon the docket...