Twaites v. Bailly
| Decision Date | 23 June 1930 |
| Docket Number | 40080 |
| Citation | 231 N.W. 332,210 Iowa 783 |
| Parties | ROBERT E. TWAITES, Appellee, v. SOPHIA KUNDERT BAILLY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--D. E. MAGUIRE, Judge.
Action to foreclose two real estate mortgages. The defendants Bailly admitted the execution of one note and denied the execution of the other note. The court overruled motions for a continuance, and judgment and decree was entered in favor of the plaintiff, and the defendants appeal.
Affirmed.
John J Kintzinger, for appellants.
Brown Lacy & Clewell, for appellee.
The original notice in this action was served upon appellants on September 20, 1928. The petition was filed on September 21 1928. On December 20, 1928, the appellants filed an answer. In one division thereof they admitted the execution of one of the notes sued on by appellee. In another division appellants denied the execution of the other note sued upon by appellee, denied that any consideration was ever received for said note, and alleged that a real estate and loan agent was acting as agent for the appellee, and represented to appellants that he had a client who desired to purchase a note and mortgage for about the amount due on the first described note, and that, if appellants would sign a note and mortgage in blank, the agent would fill in the amount of the balance due on said note, which was about $ 905, and dispose of the same and pay off said note. Appellants alleged that they signed said note and mortgage in blank, and that said agent fraudulently filled in the amount in the sum of $ 1,600. They alleged that they never authorized the delivery of said note. On February 8, 1929, the appellee filed his reply, pleading estoppel, confirmation, and ratification, and the later execution of a renewal note of $ 1,600 for said note in controversy. The cause was continued from the appearance term, which was the October term, 1928, and was noticed for trial for the January term, 1929. Said cause was duly assigned for trial on February 12, 1929. At the request of counsel, the trial was postponed from time to time, and on February 23, 1929, the case was again definitely assigned for trial on February 28, 1929. On February 27, 1929, the appellants filed a motion for a continuance. The grounds of said motion appear only in affidavits attached to said motion. The affidavit of the appellants is to the effect that, in order to defend said action, it is necessary to employ an accountant, for the purpose of examining the books of the said agent referred to in the answer, and that the appellants had just recently received a small amount of money to use for the purpose of preparing the case for trial, and it would be impossible for counsel to prepare the case for trial for said term of court. The affidavit of counsel attached to the motion recites the engagement of counsel in jury cases involving a large amount of work, and that, in the opinion of counsel, it will be necessary to have the accounts of the said agent audited, and that, until a few days before the filing of the motion, appellants were unable to engage the assistance of an accountant, on account of the lack of funds. The motion for a continuance was presented on February 27, 1929, and was overruled. On the same day, counsel who had appeared for the appellants withdrew his appearance of record. On the following day, the appellants appeared by new counsel, who filed another motion for a continuance, to the general effect that appellants had employed new counsel since the withdrawal of the appearance of their former counsel, and that said counsel had not had opportunity to properly prepare said cause for trial. A hearing was had on said motion, and the same was overruled. The case, however, appears to have been passed from Thursday, February 28, 1929, to Saturday, March 2, 1929, at which time counsel for appellants appeared, and filed another motion for a continuance, the subject-matter being to the effect that counsel had been engaged in other matters in court and before the grand jury, and had not had time to prepare the case for trial. Said motion for a continuance was overruled, and on said date appellants filed an amendment to their answer. The cause then proceeded to trial. The only witness who appears to have testified in the case was the appellee, who testified to having purchased the note and mortgage in dispute, and testified that he paid therefor $ 1,600; that the party from whom he acquired it had a balance of $ 1,200 in his hands, belonging to the appellee; that said funds were appropriated as part payment for said note and mortgage; and that he paid to said party the balance by check of $ 400, making up the full $ 1,600. He...
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