George v. Chicago, Fort Madison & Des Moines Railway Co.

Given, J.

The appellant contends that Mr. George had full authority to make the settlement, and that the agreement of settlement set out ‘ ‘showed a complete settlement, and took away the remedy in the claim set out in th'e petitions in the two cases;” that, being prevented from paying as agreed by the notice of the attorney’s lien, the only remedy was to apply to the court for an order directing to whom the defendant should make payment, and that the proper way of presenting the matter was by motion and affidavit. The appellees’ contention is that the agreement set out in the defendant’s motion was a new contract, and as such was a mere matter of defense, and should have been set up by answer. If the fact of settlement was not in dispute, and the only question was to whom the appellant should make payment, we are inclined to think that matter could be presented by motion; but the alleged settlement was denied, and the relief asked by the motion was to find that a settlement had been made, and to order to whom the money should be paid, and to dismiss the cases. The appellant cites Hall v. Smith, 15 Iowa, 584; Merry v. Allen, 39 Iowa, 235,— and other cases, holding that a complete accord and satisfaction takes away the remedy in the claim in suit; but in all of these cases the settlement or accord and satisfaction was pleaded as a defense, and not presented by motion. It is said in argument that the district court held that this matter should be set up by way of answer, and proven on the trial. We think this is a correct view of the law, and the judgment of the district court overruling the defendant’s motion to dismiss the case is afeibmed.