Wheeler & Wilson Manuf'g Co. v. Sterrett

• Decision Date: 04 April 1895
• Citation: 62 N.W. 675,94 Iowa 158
• Court: Iowa Supreme Court
• Parties: WHEELER & WILSON MANUF'G CO. v. STERRETT ET AL.

94 Iowa 158

62 N.W. 675

WHEELER & WILSON MANUF'G CO.

v.STERRETT ET AL.

Supreme Court of Iowa.

April 4, 1895.

Appeal from district court, Monroe county; W. J. Babb, Judge.

Action at law upon a promissory note of the defendant R. J. Sterrett, payment of which was guarantied by defendant Conrad Sterrett. Defense, payment and release by the substitution of one Brayton as paymaster. Trial to a jury, verdict and judgment for defendants, and plaintiff appeals. Reversed.D. M. Anderson, for appellant.

Wm. A. Nichol, for appellees.

DEEMER, J.

Appellees have filed a motion to dismiss the appeal because no notice thereof was served upon the clerk of district court, as required by law. It appears that service of notice was accepted for the clerk by one John W. H. Griffen, as deputy; but it was further shown that at the time Griffen was not regularly appointed, as required by section 766 of the Code. He had prior thereto received a written appointment from McClahan, who was and is the clerk, and had for a long time been acting as such; but the appointment was not approved by the board of supervisors, nor did he give bonds for the faithful discharge of his duties. By virtue of this written appointment and the performance of the duties of the deputy thereunder, Griffen was a de facto officer, and his acceptance of service is as valid between the parties to this litigation as if it were made by a deputy de jure. We have expressly held that a deputy de jure may accept notice of appeal for his principal. Sanxey v. Glass Co., 68 Iowa, 542, 27 N. W. 747. The motion to dismiss the appeal will therefore be overruled.

2. It is contended that the verdict is not supported by the evidence, and is contrary thereto. We have examined the record, and find there was a conflict in the testimony; and, under well-known rules, we cannot interfere with the findings of the jury.

3. During the argument of the case to the jury the attorney for the defendants stated several times that the plaintiff was a nonresident of the state, and a wealthy foreign corporation; that the defendants were poor; that the plaintiff, he believed, was doing business all over the world, and was not required to even file its article of incorporation with the auditor of this state, like a foreign insurance company was required to do, but sewing machine companies were allowed to roam at will, and rob people as they pleased. In the course of his argument he said that the law should declare a contract like the one in this case, and which was introduced in evidence, not only void, as against public policy, but the corporation attempting to enforce it should have its property confiscated to the school fund, like in case of usury, or when a man pays a fine for drunkenness; that he was in favor of the national congress and the legislatures of each state passing laws to that effect. He also states that the plaintiff had accepted George Brayton for the payment of the note sued on, and had taken an ironclad mortgage on everything he had. At this point, p...