Wood v. Porter

9 N.W. 113, 56 Iowa 161

Opinion

Beck, J.

The petition alleges that plaintiff’s wife employed defendant, who is an attorney at law, to prosecute against her husband an action for a divorce and alimony; that in pursuance of his employment defendant did commence such an action and that plaintiff and his wife, soon after the commencement of the suit, settled all differences be tween them and became reconciled to each other and. were de- . sirous to have the action for divorce dismissed. Thereupon plaintiff called upon defendant, who had been counsel for both plaintiff and his wife, after the commencement of the divorce suit, for the purpose of having the suit dismissed and paying the costs therein, when defendant informed plaintiff that the court had ordered him to pay into court the sum of $208,-50 as costs and alimony and the cause could not be dismissed until that amount had been paid. It is alleged tiiat these representations were false and made for the purpose of defrauding plaintiff, who, relying thereon, did pay defendant the sum of $65 in cash and executed to him a promissory note for the further sum of $93.50,. which defendant transferred before maturity to a bank, having no notice of the fraud •of defendant in obtaining the paper. The defendant in his answer denies all the allegations of the petition.

i evidence ■ fraudédegree of proof, II. The court instructed the jury that, to authorize them to find for plaintiff, they must be satisfied beyond a reasonable doubt thsit the representations alleged were made ^7 defendant; .that they were false and that dependan knew them to be false; applying to the case the rule of Barton v. Thompson, 46 Iowa, 30. This case we have overruled in Welch v. Jugenheimer, p. 11, ante, and the rule therein announced is no longer recognized by this court. The instruction, thex*efore, must be now regarded as erroneous.

. „ Smpttan : of facts. III. The court instructed the jury that defendant was not the attorney of plaintiff in the divorce suit, but was the attorneyofthe plaintiff’s wife. This instruction is gTOi:md of an objection urged by plaintiff, While it is not competent for the court to instruct the jury upon the facts of the case, yet if .a material fact is admitted or proved without conflict in the evidence, no prejudice can result from the court stating the fact as established, or that it should be regarded as established by the jury. ' We have not the evidence before us, and therefore cannot cpues tion tbe fact stated in tbe instruction, complained of, but, on tbe contrary, we must presume that the statement was made upon tbe admission of tbe parties or upon uncontradicted evidence. For tbe error in tbe first instruction, tbe judgment of tbe Circuit Court is

Beveksed.