Bond v. Epley

Day, J. I. Proceedings to vacate a judgment for fraud practiced by the successful party, and unavoidable casualty or misfortune preventing the party from defending, must be by [604] petition verified by affidavit, and must be commenced within one year after the judgment or order was made. Code, §§ 3154 and 3157. The judgment in this case was entered on the 20th day of October, 1874. • The original petition for' the vacation of the judgment was filed October 13, 1875, seven days before, and the amended and substituted petition was filed October 22, 1875, two days after the expiration of the year from the rendition of the judgment. 'Notice of the application was not served upon the plaintiff until January 26, 1876, more than fifteen months after the judgment was rendered. The court overruled the application upon the ground that the proceedings were not commenced in time. This ruling was, we think, correct under the statute. But, whether correct or not; it cannot now be reviewed. No exception was taken to the ruling, but the cause was transferred to the equity docket, and twenty-two days thereafter the defendant filed an amended petition in equity, seeking relief upon equitable grounds. The defendant’s right to relief must be determined by the case made in this equitable proceeding. II. The petition in equity was filed a little more than eighteen months after the rendition of the judgment. The facts relied upon for relief are the same as those stated in the substituted petition of October 22, 1875, namely, fraud of plaintiff in delaying service of notice till defendant was beyond communication, and unavoidable casualty . preventing him from defending, in that he did not know that the suit was commenced until after judgment was rendered. Not a fact is stated which was not known to defendant, from his own showing, as early as November 14, 1874, less than one month after the judgment was rendered. The case is simply this : The defendant, having neglected to make his application at law for relief within the time allowed by statute, resorts to a court of equity for relief, without furnishing any excuse whatever for the delay, or showing that a single fact has come to his knowledge which was not known to him in time to have made his application under the statute, within the year. Under [605] these circumstances equity will not grant relief. A court of equity will grant a new trial in an action at law, after the time for applying for relief under section 3157 of the Code has elapsed, only when proper reasons are shown for the application. District Township of Newton v. White, 42 Iowa, 608; Bowen v. Troy Portable Mill Company, 31 Id., 460; Partridge v. Harrow, 27 Id., 96; Hoskins v. Hattenback, 14 Id., 314. 3 _._. notice. It is claimed that the court had no jurisdiction to render the judgment. If this be true the defendant should be relieved against it, notwithstanding the delay in making the application. The notice, a copy of which was served upon the wife of the defendant Epley, and which was duly published in a weekly newspaper, is as follows: “You are hereby notified that on or before the 1st day of June, A. D. 1874, there will be on file in the office of the clerk of the District Court of Linn county, Iowa, the petition of the plaintiff aforesaid, claiming of you the sum of five thousand three hundred and forty-four dollars and sixty-eight cents, as money justly due from you on two promissory notes, and interest thereon at one and one-half per cent from the 3d day of October, A. D. 1873, until paid, and that a writ of attachment issue' to secure the same and costs of this suit. You are also notified that unless you appear thereto, and defend before noon of' the second day of the term of said District Court of Linn county, to be held on the 19th day of October, A. D. 1874, a default will be entered against you, and judgment rendered thereon. ” This notice complies fully with the provisions of section 2599 of the code. It is almost an exact copy of the form for notice prescribed in section 2518 of the Code of 1851, with the addition that it named the term of court at which defendant is required to appear, as provided in sections 2599 of the Code of 1873, and 2812 of the Revision, which provision is. not contained in section 1715 of the Code of 1851. The defendant claims that this notice is defective, in that it does-not inform the defendant of the place where he must appear and defend the action. Reliance is placed upon the case of' [606] Kitsmiller v. Kitchen, 24 Iowa, 163. In that case the notice concluded after making a statement of what the petition claimed, and did not notify the defendant that he was required to appear and defend anywhere, or at any time. It is with reference to this state of facts that the court say that “the failure of the original notice to inform the defendant as to the place where, and the time when, he must appear and defend the action, was a substantial and fatal defect. ” In this case both time and place are stated. The time is the 19th day of October, 1874; the place is the District Gourt of Linn county. The case of Kitsmiller v. Kitchen does not hold that the city or town in which the court is to be held must be stated, and the statute makes no such requirement. The notice was clearly sufficient to authorize a judgment in rem against the attached property. 4._._. appearance. IV. There is, however, another view of this case which is satisfactory, and which disposes of the claim made by defendant in argument, that the judgment is a personal 0]16) erroneousiy rendered, and that he is entitled to have the cause retried under section 2877 of the Code, which provides that defendants served by publication only, and who do not appear, may at any time within ten years after the rendition of the judgment, upon giving security for costs, be admitted to defend. The amended answer of the plaintiff alleges that the defendant was present by attorney when the judgment was rendered. The reply alleges that L N. Whittam, attorney at law at Cedar Rapids, appeared in the cause, and signed a stipulation before the judgment was obtained, but that the appearance was wholly unauthorized. The fact of appearance being thus admitted, the burden is upon the defendant to establish that the appearance was unauthorized. Upon the trial the defendant offered an ex parte affidavit of J. N. Whittam, that he had no authority to appear for defendant, and did not intend to appear so as to bind him in the case. This affidavit was objected to because it was ex parte, and the plaintiff had no opportunity to cross-examine. The court [607] •excluded the affidavit. 'This ruling was clearly correct. The only evidence respecting the employment of Whittam is the ■following in 'the cross-examination of Epley: “I don’t think I told him (Green) I had made arrangements to have suit defended. I didn’t understand what the nature of the case was at that time. I had made no arrangements in regard to the suit, and knew nothing of it. I may have said that Whit-tam had been attending to my business and might look after it for me. I knew Whittam, an attorney at Cedai Rapids. I have no recollection of either my wife or myself corresponding with him during that summer.” If Epley had no arrangement whatever with Whittam which would authorize his appearance in the case, it seems incredible that he should not •distinctly and unequivocally so state. Defendant’s attorney ■excuses the indirectness of the testimony upon the ground that when the deposition was taken there waá an admission in plaintiff’s answer that the defendant did not appear by attorney, and there was, therefore, no necessity of proof upon the .subject. But the amended answer, alleging that defendant did appear by attorney, was filed on the 4th day of May. The cause did not come on for hearing until the 14th day of August. The defendant might, in the meantime, have retaken the testimony of Epley, or, if the time was not sufficient for that purpose, he might have moved for a continuance upon that ground. We discover no sufficient reason for disturbing the judgment of the court below. Affirmed.