Throckmorton v. Stout

Supreme Court of Iowa

Throckmorton v. Stout

3 Iowa 580

DecidedDecember 15, 1856

StatusPublished

This text of 3 Iowa 580 (Throckmorton v. Stout) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Throckmorton v. Stout, 3 Iowa 580 (iowa 1856).

Pincite

Opinion

Stockton, J.

[1] —

It appears from the record, that two [581]*581terms of the District Court of Marion county, had intervened between the time of rendering the decree, and the time of setting it aside. The order of the court, setting aside the decree, does not state for what reason it was set aside, and it is only from the motion of defendants, that we gather that the defendant’s attorney failed to attend to the suit, but whether such failure was occasioned by absence, sickness, or other inability, is not stated, and is in no wise made to appear. The motion was unsupported by testimony, and was not even verified by the oath of the party in whose favor it was granted, as to the truth of the facts stated.

The decree itself was regular on its face, and was made with due notice to the defendants, and they both appeared to the suit by their attorney. It would undoubtedly introduce great confusion and uncertainty into the administration of justice, if this court should sanction the proceedings of the District Court in this case. Parties would never know when there was to be an end of litigation — they would never know when their rights were secure — if, at a year’s interval — after two terms of court have intervened — the defendants can be permitted to come into court, and without any cause shown, upon a mere motion, and without notice to the other party, have a decree entered against them set aside, and the cause re-opened for new testimony and a new trial. There is no precedent for any such proceeding. When the plaintiff had obtained his decree, he had a right to suppose the proceedings ended, and he was no longer in court, unless regularly notified that an application Avas made to set aside the decree and grant a rehearing, on petition and notice, according to the regular course of chancery proceeding. Radley v. Shaver, 1 Johns. Ch. 200 ; Bennett v. Winter, 2 Ib. 205.

The order of the District Court setting aside the decree, and opening the cause for rehearing, is annulled, and the decree originally entered, ordered to stand in full force.

Weight, 0. J., having been of counsel, took no part in the determination of this cause.

Free access — add to your briefcase to read the full text and ask questions with AI

Stockton, J.

[1] —

It appears from the record, that two [581]*581terms of the District Court of Marion county, had intervened between the time of rendering the decree, and the time of setting it aside. The order of the court, setting aside the decree, does not state for what reason it was set aside, and it is only from the motion of defendants, that we gather that the defendant’s attorney failed to attend to the suit, but whether such failure was occasioned by absence, sickness, or other inability, is not stated, and is in no wise made to appear. The motion was unsupported by testimony, and was not even verified by the oath of the party in whose favor it was granted, as to the truth of the facts stated.

The decree itself was regular on its face, and was made with due notice to the defendants, and they both appeared to the suit by their attorney. It would undoubtedly introduce great confusion and uncertainty into the administration of justice, if this court should sanction the proceedings of the District Court in this case. Parties would never know when there was to be an end of litigation — they would never know when their rights were secure — if, at a year’s interval — after two terms of court have intervened — the defendants can be permitted to come into court, and without any cause shown, upon a mere motion, and without notice to the other party, have a decree entered against them set aside, and the cause re-opened for new testimony and a new trial. There is no precedent for any such proceeding. When the plaintiff had obtained his decree, he had a right to suppose the proceedings ended, and he was no longer in court, unless regularly notified that an application Avas made to set aside the decree and grant a rehearing, on petition and notice, according to the regular course of chancery proceeding. Radley v. Shaver, 1 Johns. Ch. 200 ; Bennett v. Winter, 2 Ib. 205.

The order of the District Court setting aside the decree, and opening the cause for rehearing, is annulled, and the decree originally entered, ordered to stand in full force.

Weight, 0. J., having been of counsel, took no part in the determination of this cause.

Cite This Page — Counsel Stack

Bluebook (online)

3 Iowa 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/throckmorton-v-stout-iowa-1856.

Opinion

Related

Cite This Page — Counsel Stack