Keeney v. Lyon

Wright, J.

In view of all the facts stated in the affidavits, and disclosed by the record, we cannot resist .the conclusion that the court erred in sustaining this motion.

i. pracSceto par-motion, It will be remembered that Leas was a party to the cross-bill. He was and is directly interested in the claim there made. ' He bought the Lyon notes from Keeney, and the record discloses that he obtained judgment on some of them. I he charge is that Leas and Keeney combin'ed to cheat and defraud Lyon; that the sale of said notes was colorable and pretended, and without consideration; and the prayer is that the judgments recovered be declared of no effect, &c. From *280 this statement it will be seen, at onee, that, Leas had a direct interest in the questions raised by the cross-bill, and that it would be a. violation of a fundamental principle of judicial proceedings .to hear and determine .the motion without notice to him. After the original, case was settled and dismissed, he was out. of . court, and was not bound, after the adjournment of the term, by anything that might be done affecting his interest, until notifled of such contemplated action. , If he had appeared, or if it was shown that -his counsel was present and took part -in the proceedings, it would be different. .

But it was clearly erroneous to entertain the motion, and make an order so vitally affecting his right's in the premises, in his absence, and without notice. Wright v. Leclaire, 3 Iowa, 221. The case of Hurley v. Dubuque Gas Company (8 Id., 211), differs from this from the fact that there due notice was given of the motion to amend the record.

¡i™! )°uafments' But a consideration, equally conclusive, is that the motion was, under the circumstances, made too late. From the record we cannot escape the conclusion that appellee had abandoned his cross-bill.

Its pendency had been.plead in bar of the law action, and it was after this that he asked leave to withdraw the same. His agreement, too, that depositions might, be taken without notice,to him, shows, beyond all fair dispute, that he intended to rely upon his law action; that he did not expect other relief, and was willing to leave the controversy to the parties more immediately interested. Upon any other theory it is inexplicable that he should, .quietly and silently, permit the- controversy to. proceed without, in any way, taking part therein.

Not only so, but it appears by appellee’s own showing, that he knew at .the time that such an order (that for dis *281 missal and settlement) was asked by plaintiff’s attorney, and that he opposed it. True, he says the only entry ordered was a dismissal of plaintiff's cause of action against the appellee, and that beyond this it is erroneous. And yet the .entry was made and it was his duty to take noticie of it. Being present and opposing such an order, it -was his clear duty to except thereto, or to take more immediate steps to correct the mistake. Instead of doing ■so, with his law action pending, with his request on file to dismiss his cross-bill, having waived notice of taking depositions in court at the time the order was asked and made, he waits for more than a year, and then asks, on motion, to have the order vacated and set aside.

The.law contemplates that such orders should be applied for at the term next succceeding the one at which the entry was made. And while under some circumstances it may be made afterward, “the policy of.the law, as well as a due regard to the rights of all the parties interested, would dictate that such applications should be made at an early day.” As time passes, the mistake ought to be made more and. more manifest, and the court should be fully satisfied that no prejudice could result therefrom. Hurley v. Gas Company, supra; Eno v. Hunt, 8 Iowa, 436.

No such showing is made in’this case. Parties would never be estopped by their voluntary action in a pending litigation, orders and judgments would have no sanctity, no conclusiveness, if upon the slight evidence produced in. this case, a controversy is to be re-opéned and again tried and determined.

The suggestion that the settlement and dismissal related alone to plaintiff’s cause of action, we' give no weight; for the language of the order, in view of the pleadings, covers more in its terms.

Then, appellee had asked to dismiss ■ his cross action, and this motion was on file at the time of the order.' He *282 was asking nothing, nor had ho undertaken to establish anything.

We may add that-wo have less hesitation in thus holding, from the fact that plaintiff’s law action seems to be still pending, and he can under that have all the relief which he certainly at une time, seemed to deem necessary. He is therefore not without remedy.

Reversed.

Cole, J., having been of counsel, took no part in-the determination of this case.