Jewett & Lovejoy v. Miller & Fuller

12 Iowa 85

• Court: Supreme Court of Iowa
• Decided: June 13, 1861
• Status: Published

Opinion

Baldwin, J.

Tbis was a proceeding to foreclose a mortgage. After the defendants had answered, there was an agreement filed, signed by the parties, stipulating that the cause should stand continued one year. Nearly twenty months after this agreement was filed, a decree was entered as prayed for in the petition of plaintiffs. At a subsequent term, one of the defendants moved the court to set aside the decree, for several causes, the most important of which were, that the decree was entered without the defendant’s knowledge, and by a judge who had been an attorney of record in the ease; that the deeree was entered without proof; that the cause was not regularly reached for trial, &c. This motion was overruled, and from this ruling the defendants appeal.

The decree recites, that the said “complainants and respondents, by their counsel, appeared and submitted this cause to the court, upon the pleadings, admissions and written agreement of parties, for final decree, and it is thereupon ordered.” &c.

This decree, by the motion of defendant, is attacked upon the affidavit of one of the defendants alone, without denying the right of his counsel to appear for him, and make any such admissions as the record states were made, and asks the court to set the same aside without showing in what manner he was prejudiced by this action of the court. The record shows that the cause was submitted by the consent of the parties, hence the objection that the judge had been of counsel in the cause is without foundation. Code of 1851, § 1592.

As to the objection of defendants that the decree was rendered without proof, &c. It has been held by this court that when a decree recites that certain matters essential to its rendition were made to appear, the appellate court will presume that they were made to appear in a proper manner, and that the court rendering such decree performed its duty. Harrison v. Kramer et al., 3 Iowa, 544. The Supreme Court will presume tbe judgments and decrees of tbe District Court to be correct, unless tbe record shows tbe error clearly. Campbell v. Ayres, 6 Iowa, 339; Shields v. Guffey, 9 Ib. 322; Hendrie v. Rippey, Ib. 351. There is no showing that tbe defendants were in any manner prejudiced by this decree of the court. A wide latitude is given to the discretion of tbe District Court in granting and refusing new trials, and this discretion will not be interfered with, except when palpable injustice has resulted to tbe party making tbe application. Hendricks & Cooper v. Wallis, 7 Iowa, 225. Tbe agreement to continue only suspended tbe power of tbe court to determine tbe cause during tbe time specified in such agreement. When such time expired tbe parties stood in tbe same position as though no continuance bad taken place. Tbe cause was liable to be called and tried without further notice.

Judgment affirmed.