Beck & Son v. Juckett , 111 Iowa 339 ( 1900 )

Ladd, J.

1 The defendant’s attorney had assured Beck & Son before the action was begun that they could not be held on the Juckett claim. When M. Beck appeared in court on the second day of the term, he was lulled into security by the declaration from the same source that: “We are not after you. We are after the Commercial Club,”- — and was advised that “he need not .come up or appear,” and that the suit would not be called .till two days later. The next day the plaintiffs were telephoned that the cause would not be taken up the day following. No further attention was. given the matter by the plaintiffs, and the attorney procured judgment about a month afterwards. The testimony of Beck is somewhat corroborated by other evidence, and, as the witnesses were before the trial court, we are not inclined to interfere with the finding that it should be accepted, rather than the statement of the attorney. Fraud is predicated, not on the fixing of the day for the hearing, as seems to be thought by appellant, but on the deception practiced, by which plaintiffs were misled into the belief that a remedy was being sought solely against the Commercial Club, and that there was no occasion for further attention in order to protect themselves. No judgment so procured should stand. Having the assurance that it would be unnecessary to appear again, and that the purpose was to enforce the claim against another, plaintiffs had no reason to suspect' a judgment would be rendered against them, and were not put on inquiry until its payment was demanded, for the first time, nearly two years afterwards. Under these circumstances, equity should grant relief, though more than a year has elapsed since judgment was entered. A good defense is pleaded, and there is reasonable ground to think a different result will-be reached on trial.

2 II. The decree “set aside, canceled, and held for naught the judgment.” It should have directed a new trial. In Lumpkin v. Snook, 63 Iowa, 515, and McConkey v. Lamb, 71 Iowa 638, this court declared the remedy in such cases to be statutory. The aggrieved party having been deprived of an opportunity to defend, the remedy, available is its restoration, under the provisions of the Code'. Seé titlel 20, chapter 1. To< this extent the decree will be modified, with costs taxed to appellant.— Modified and affirmed.