Wickersham v. Phillips

Dean, J.' Plaintiffs sued in Thurston county on judgments obtained November 8, 1906, against defendants in the district court for Monona county, Iowa. The suits were consolidated in the district court and will be treated as one case here. Plaintiffs prevailed, and defendants appealed. . On June 3, 1904, the parties hereto entered into a written stipulation which provided that the case then pending in Monona county, Iowa, should “stand continued from term to term to await a decision of the circuit court of the United States,” then pending at Omaha, wherein the United States was complainant. The parties defendant in that case were the same as in the Iowa case. Defendants argue in their brief that, on the same date and within a few hours after the written stipulation was [297] signed, the attorneys for the respective parties in the Monona county case there entered into a verbal stipulation to the effect that, as the Iowa case and the federal case at Omaha “were identically the same, the verdict in the Omaha case was to settle all questions” in dispute between the parties, and the Iowa case- should therefore be dismissed as soon as a judgment was rendered in the federal case. Plaintiffs admit the validity of the written stipulation, but deny that the verbal stipulation was ever made. The evidence does not seem to support defendants’ argument, and we think that, owing to the lapse of time that has intervened and the infirmity of memory for details, they must be mistaken about the terms for which they now contend. The verbal stipulation seems to us to be inconsistent with the terms of the written stipulation. It appears, too, that the parties plaintiff, in the ease wherein the judgments sued on were obtained, were not the same as the parties plaintiff in the federal court at Omaha, nor was the relief granted in the respective courts the same. The judgment in the federal court was rendered November 17, 1904. It is now argued by defendants that the Iowa judgments were obtained by fraud in that, the pleadings having been settled and the issues joined, the judgments were obtained about two years after the date of the written stipulation, and in the absence of defendants. They now argue that the judgments, having been so obtained, are open tó attack on the ground of fraud. We deem it sufficient to say that, a jury being waived, the questions at issue were all fairly presented to the court, and, while the evidence conflicts, it seems fairly to support the findings and judgment. The court found specifically ‘ ‘ that there was no fraud in the obtaining of the judgments of the district court of Iowa, for Monona county, sued on herein, and that the same are valid as against the defendants.” Whén a jury is waived, a contested finding of fact will be sustained if there is- suf [298] ficient competent evidence to support it. Dravo-Doyle Co. v. Metropolitan Water District, 102 Neb. 184. The judgment is Affirmed. Letton and Day, JJ., not sitting.