Dullard v. Phelan

Robinson, J. On the ninth day of April, 1889, a statement for a judgment by confession, made by Michael Phelan in favor of John Dullard, for the sum of twenty-three hundred and sixty-five dollars and eighty-seven cents, an attorney’s fee ¡of seventy-seven dollars and thirty cents, and costs, was filed in the office of the clerk of the district court of Polk county, and judgment was entered by the clerk on the confession. On the same day an execution was issued on the judgment directed to the sheriff of Jasper county, who received it, and levied upon notes which belonged to the execution defendant, of the par value of about thirty-one hundred dollars. On the tenth day of April, 1889, and before the judgment was approved by the court, Mary Ann Phelan, the wife of Michael, filed in the case a paper which was entitled a “motion,” although in form and matter it was more in the nature of a petition. It alleged, in substance, that in.the preceding month she had filed in the same court a petition for a divorce from Michael Phelan, and for the allowance of alimony, and that it. was still pending; that her husband was the owner of about eight hundred acres of land in Polk and Jasper counties, upon which there were large incumbrances, and in which she is entitled to dower; that he was desirous of defeating her right of dower, and of placing the land beyond the reach of any decree or process of court, to the end that he might avoid the payment of alimony or other allowance to her, and might defraud her of her rights as his wife; that to accomplish his purposes he had colluded with Dullard for the rendition of the judgment in question, and that it was entered in fraud of 'her — 473 — rights; that before the judgment entry was recorded execution was issued and delivered to the sheriff of Jasper county; that unless it is recalled great and irreparable damage will result to her. The paper further alleges that the statement on which the judgment was entered was insufficient in not showing concisely the facts out of which the alleged indebtedness arose, and in not showing that the amount confessed was justly due. The relief asked is that the confession of judgment be held to be collusive, fraudulent and void, and that the same be set aside; that the said execution be at once recalled, and that no other execution or other process issue upon said judgment confession, “and for all such other further or different relief, as in equity she may be found entitled to.” When the motion came on for hearing Dullard objected to the proceedings on the ground that the questions presented as to the validity of the judgment could not be determined on motion, but only by a bill in equity or by a proceeding before a jury. The objections were overruled, and a hearing was had chiefly on affidavits and the testimony of witnesses examined in open court. After the evidence had been fully submitted, the court adjudged that its approval should be withheld from the judgment; that it be set aside, and declared void and of no effect; that the sheriff of Jasper county refrain from selling property levied upon under the execution issued to him; and that he release the same and return the execution. 1. Practice: confession of judgment attacked for fraud: equitable relief: motion. I. The appellant contends that Mrs. Phelan could not attack the judgment by motion. The statute authorizes the allowance of an attachment at the instance o± the wile, who is . . _. _ , suing lor a divorce and alimony against the property of her husband. Code, sec. .2227. And upon a proper showing she will be entitled to an injunction to restrain the husband from dispos — 474 — ing of Ms property until the final disposition of the action. Wharton v. Wharton, 57 Iowa, 696. Whether the wife can also maintain an action to set aside a judgment rendered collusively and in fraud of her rights,, as the one in controversy is alleged to have been, is a question we cannot determine on this appeal. The statute authorizes a judgment by confession without action. Code, sec. 2894/ When a proper statement in writing, duly signed and verified,’ is filed, it is the duty of the clerk to enter judgment for the amount confessed and to issue execution as in other cases. Code, sec. 2897. Such judgments are to be signed by the judge, and when entered in vacation should be approved and signed at the next term. Code, secs. 176, 177; Kendig v. Marble, 58 Iowa, 531. The statute in regard to signing the record is directory, and a. failure to sign does not vitiate the judgment. Vanfleet v. Phillips, 11 Iowa, 560; Childs v. McChesney, 20 Iowa, 434; Traer v. Whitman, 56 Iowa, 445. It follows that the judgment in question was valid until set aside by the district court. Mrs. Phelan, in attacking it, not only objected to its approval, but asked that it be vacated on the ground that it was fraudulently rendered to her prejudice. To grant the relief she demanded, it was necessary for the court, in effect; to find and adjudge that she had a subsisting interest in the property specified in her motion, or a right to have it, or some portion of it, appropriated for her benefit; that the judgment would or might injuriously affect such interest or right, or some other right; and that it was rendered fraudulently or upon an insufficient showing. Such an adjudication would necessarily be final as to the rights involved, and a “judgment,” within the meaning of the law. Code, sec. 2849; Smith v. Shawhan, 37 Iowa, 534. Had Mrs. Phelan sought to intervene in the case before judgment was rendered, she could have done so,. — 475 — if at all, only by petition. Code, secs. 2683-2685. The relief she demanded was equitable, and, if allowable, could only be granted on petition, after opportunity to the parties adversely interested to file pleadings and make defense, as in an equitable action. “A motion is a written application for an order.” Code,, see. 2911. It does not ordinarily seek a final adjudication of a controverted matter. We have said that the paper filed by Mrs. Pbelan was in form and matter more like a petition than it was like a motion, but that fact cannot aid her on this appeal, for the reason that the paper was treated and heard as a motion against the objections of the appellant, although the relief granted was in the form of a judgment. The appellant was denied the right of trying the case in the manner provided by law, and of that he justly complains. 2. Confession of judgment: sufficiently of statement. II. The appellee insists that the statement on which the judgment by confession was founded was not sufficiently specific to authorize the entry of judgment. If that be true, the «t i n i • -i i i • "i*jt judgment irom winch this appeal is taken should be affirmed, for it was within the power of the court to disapprove the judgment on its own motion, and the fact that it did so at the request of a stranger to the record would not vitiate its action. But we think the claim of' the appellee is not well founded, except as to the attorney’s fee. The statement for judgment recites that Michael Phelan is justly indebted to Dullard in the sum of twenty-three hundred and sixty-five dollars and eighty-seven cents, and that the indebtedness arose as follows: “The plaintiff having signed as security for the defendant for more than two thousand dollars, and the defendant after-wards becoming unable to pay, the said Dullard, plaintiff, assumed and agreed to pay, for and in behalf of defendant, the sum of twenty-three hundred and sixty-five dollars and eighty-seven cents; whereupon the — 476 — defendant executed Ms certain promissory note in favor of plaintiff, and delivered the same to him, in the sum of twenty-three hundred and sixty-five dollars and eighty-seven cents. * * * Affiant says the sum of twenty-three hundred and sixty-five dollars and! eighty-seven cents, including interest, is now justly due on said note.” The note is dated March 23, 1889, is attached to the statement, and is properly identified. We think this states concisely the facts out of which the indebtedness arose, within the meaning of section 2896 of the Code. Kendig v. Marble, 58 Iowa, 530; Miller v. Clarke, 37 Iowa, 328; Daniels v. Claflin, 15 Iowa, 153; Plummer v. Douglas, 14 Iowa, 70; Vanfleet v. Phillips, 11 Iowa, 559. The agreement of Dullard to assume and pay the indebtedness for which he had been surety was on its face a sufficient consideration for the note upon which the confession was founded. It is true the creditors might elect to proceed against Phelan, and collect their claims of him; but that fact would not release Dullard from his obligation. If he failed to perform it, Phelan would have a claim against him for his failure. 3_; attorney’sfee. But we think the allowance of an attorney’s fee was unauthorized. The note provides for the payment of a “reasonable attorney’s fee if sued.” Tbe statement confessed that the amount of the note was due “together with attorney’s fees as provided in said note.” The words '“suit” and “action,” as applied to legal proceedings, are synonymous terms. 2 Bouvier’s Law Dictionary, tit. “Suit;” Webster’s Dictionary. The filing of a statement for and the entering of judgment is not an action or suit, within the meaning of the law. A judgment by confession is one entered without action. Code, sec. 2894. Therefore, by the terms of the note, no attorney’s fee was due. No doubt the clerk, in entering judgment for such a fee, supposed he was authorized to do so by — 477 — chapter 185, Acts of the Eighteenth Q-eneral Assembly. The title of the act shows that it relates to the taxation of attorney’s fees in suits on written contracts in certain cases. Section 1 limits the amount of attorney’s fees “in any action upon a written contract for the payment of money,” made after the taking effect of the act. Section 2 provides that no fee shall be allowed, “if suit has not been commenced or expense incurred.” The act does not authorize the taxation of an. attorney’s fee when a judgment is rendered by confession, and when, as in this case, there is no showing that expense has been incurred. The clause in the statement in relation to an attorney’s fee did not vitiate the confession, for the reason that it referred to the provision in the note in regard to an attorney’s fee, and according to that none was due. The. clerk should have treated that part of the statement as surplusage, and entered judgment for the amount of the note and costs. If no question had been raised as to the validity of the judgment, the court should have amended it by striking therefrom the allowance of an attorney’s fee, and it should then have been approved and signed. Code, secs. 177, 178. But the court evidently acted upon the claims made by theappellee, and set the entire judgment aside. "What we have said is without prejudice to any right Mrs. Phelan may have to attack the judgment against her husband in a proper manner. Whether she may do so by petition is a question not presented to us', and is not determined. The appellant insists that she cannot obtain the relief she demands by motion. The appellee has not in any manner discussed the question as to her right to attack the judgment by motion or otherwise. For the reasons indicated the judgment, of the district court is reversed.