137 Iowa 625 | Iowa | 1908
The judgment which plaintiff seeks to have set aside was in an action in which these defendants, claiming as owners of certificates of purchase at tax sale of three lots for delinquent street improvement assessments, asked to have judgment against the defendant (this plaintiff) as the owner of said lots, and to have such judgment decreed to be a lien thereon. No appearance being made for the defendant in that action, judgment was rendered as prayed. This plaintiff now alleges that she was not the owner of the
The correctness of the legal proposition as to the personal liability of the lot owner to the tax purchaser was also intrinsically involved in the decree. There is no evidence here that the allegations of this plaintiff’s ownership of the lots at the time the assessments became liens thereon would have been false to the knowledge of these defendants, nor that they could not have established that fact by satisfactory and unperjured testimony. True it is that there was testimony in this ease that plaintiff was not in fact the owner of the lots which had constituted a portion of her husband’s estate, before his death, which was prior to the making of the assessments. But we do not think that it necessarily follows that the essential averment in plaintiff’s original action could not have been made out, or at least that a question of fact on that point would not have been presented without the introduction of false testimony. However that may be, there wa3 no fraud on the part of these defendants unless it consisted in taking a judgment which could only properly be rendered on the assumption that a fact existed which did not exist,' and evidence that defendants knew the fact to be otherwise than as necessary to support their claim is entirely wanting unless it is to be inferred from the present proof that plaintiff was not the owner. Certainly such proof does not make out a case of fraud; and, as already indicated, if it did make out a case of fraud, the fraud was intrinsic in the action itself, and not extrinsic in such sense that it can now be relied upon as furnishing ground for equitable relief.
It may be difficult to fully reconcile the various opinions of this court relating to the question whether negligence of an attorney in failing to interpose a defense in an action is on the one hand imputable to the client so as to bar the client from equitable relief from a judgment rendered on failure to make such defense, or, on the other hand, such casualty and misfortune happening without the client’s fault as to furnish ground for such relief. But an examination of the cases will show that we have held it to be necessary, in order to justify relief on account of the failure of the attorney to make defense, that a plain breach of duty or something in the nature of unavoidable calamity must be made to appear. The mere failure of the attorney to do that which he was under no obligation to do, or his lack of good judgment as to the steps which should be taken in his client’s behalf, has never been held sufficient. For illustrations see: McCormick v. McCormick, 109 Iowa, 700; Church v. Lacey, 102 Iowa, 235; Ennis v. Building Association, 102 Iowa, 520; Peterson v. Koch, 110 Iowa, 19; Jackson v. Gould, 96 Iowa, 488; Grove v. Bush, 86 Iowa, 94; Sioux City Vinegar Mfg. Co. v. Boddy, 108 Iowa, 538; Teabout v. Roper, 62 Iowa, 603; Jones v. Leech, 46 Iowa, 186. Even if the attorney referred to was generally employed to look after plaintiff’s business, nevertheless it was plainly her duty
The decree is 'affirmed.