First National Bank of Peterson v. Bourdelais, 109 Iowa 497

First National Bank of Peterson v. Bourdelais

109 Iowa 497 | Iowa | 1899

QiveN, J-.

I. There being no> appearance for appellee,, the case is submitted upon appellants’ abstract and argument alone. . A certificate by the trial judge was not necessary to entitle interveners to appeal. The controversy is between the plaintiff and each intervener, and involves only the property 1 claimed, the value of which is not shown in the pleadings. Section 4100 of the Code confers upon this court “appellate jurisdiction over the judgments and decisions of all courts of record, except as otherwise provided by law.” Section 4110 provides, as an exception t'o this general rule, that no appeal shall be taken in any cause in which the amount in controversy, as shown by the pleadings, does not exceed one hundred dollars, unless the judge shall certify that the cause is one in which the appeal should be allowed. To defeat the jurisdiction, it must appear front the pleading that the case falls within the exception, and where no amount is shown, it does not so appear. Babcock v. Board, 65 Iowa, 110; Henkle v. Town of Keola, 68 Iowa, *500335; Eden Tp. Dist. v. Templeton Independent Dist., 72 Iowa, 687; G-eyer v. Douglass, 85 Iowa, 93; Publishing Co. v. Lewis, 90 Iowa, 305.

II. Appellants, in support of their motion to correct the record of the justice, cite section 4557 of the Code, which provides as follows: “Where an omission or mistake has been made by the justice in his docket entries and that fact is made unquestionable, the court to1 which the appeal is • taken may correct the mistake or supply the omission, or direct the justice to do so.” The testimony upon which the correction is sought relates to what transpired before the justice after he overruled 'appellants’ motion to strike • plaintiffs amendment to answer. The contention is whether appellants’ counsel confessed to judgment of dismissal of the petitions of intervention, and that an order for the sale of the property in dispute should .be made, or whether he simply elected to stand on his motion, and to proceed no 'further in that court. The testimony is in sharp, conflict, and it cannot be said to show that an omission or mistake, as claimed, was- unquestionably made by the justice. The other ground of the motion to correct the record is that appellants’ attorney was employed and authorized to appear for them in prosecuting their claims to the property, and that he had no authority to dismiss the petitions, nor to confess or consent to any kind of judgment against the appellants. .The uncomtradieted evidence is that the attorney for the appellants was employed to appear and prosecute their claims to the property, and that he had no other authority. In Ohlquest v. Farwell, 71 Iowa, at page 233, it is said: “It is undoubtedly true that an attorney cannot consent to a judgment against his client, or waive any cause of action or defense in the case. Neither can he settle or compromise 2 it without special authority. But he is, by his general employment, authorized to do all acts necessary or incidental to the prosecution or defense which -pertain to the remedy pursued.1” In Rhutasel v. Rule, 97 *501Iowa, 24, it is said: “His employment is to prosecute, and in an important sense it is inconsistent with a power to dismiss tbe suit.” While, under the evidence, we think it doubtful if appellants’ counsel should have been understood as consenting to the judgment as rendered, we are in no doubt but that he did not intend to be so understood, and that he had no authority to consent to such a judgment. There is no claim that the appellants in person consented to it, and, the attorney having no authority to do so, it was unquestionably a mistake on the part of the justice to enter the judgment as he did. This being so, the motion to correct the record should have been sustained, and the record corrected according to the facts, namely, that interveners elected to stand upon their motion to strike plaintiff’s amendment to' his answer, and to prosecute no further in that court; also' that they then gave oral notice of their intention to appeal, and that thereupon judgment dismissing their petitions and for costs was entered. Upon the record, thus corrected, there can be no question of interveners’ right to appeal to the district court, and to be heard upon the merits of their case. It follows from these conclusions that the court erred in overruling appellants’ motion to correct the record and in sustaining plaintiff’s motion to dismiss the appeal.— REVERSED.