14 Iowa 431 | Iowa | 1862
The complainant asks that the judgment may be set aside as against him, and that he be permitted to interpose his plea of usury upon two grounds: First, That the respondent, Lyon, agreed that the cause should be dismissed as to him, and acting upon this agreement, he paid no further attention to the cause; that the judgment was in violation of this agreement and a fraud upon his rights. Second. That he never employed Clark & Henley, or any one else, to appear for him in said cause, and that the judgment, by consent, was without authority, and should, therefore, be set aside.
The finding of the referee is, that “Johnson had employed no attorney in the case brought by Lyon; that he had supposed that he was released from any further liability on said note by a conversation he had had with Lyon in regard thereto; and acting upon such supposed agreement, failed to put in the defense of usury to said claim, upon the supposition that judgment was only to be rendered against the Allens.”
It will be observed that the referee does not find that Lyon ever made the alleged agreement, but that complainant supposed it was made, and upon this supposition he failed, in the proceeding against him, to interpose his defense; and it is upon this supposed understanding that the Court directed the judgment to be set aside. The complainant, by his amended petition, concedes the fact that this judgment was right in part, that he was liable on the note, that Lyon was entitled to recover thereon except so far as the usurious interest was concerned.
The complainant was therefore not entitled to have this judgment set aside, unless he failed to interpose his defense on account of the alleged understanding between him and Lyon. The question then properly arises whether the evidence establishes the fact that complainant had good reason to believe that such an understanding existed.
In Campbell v. Morrison, 7 Paige, 1857, the Court says: “It must be a very special case when Courts of Chancery will relieve a party against whom a judgment is had who had a perfect defense at law.”
Justice Brownson, in Vilas & Bacon v. Jones & Piercy, 1 Com., 281, says: “ When a party goes into a Court of Chancery, after a trial at law, he must be able to impeach the justice and equity of the verdict; and it must-be upon grounds that either could not be made available to him at law, or which he was prevented from setting up by fraud, accident or the wrongful act of the other party, without any negligence or other fault on his part.”
The burden of proof is with the complainant, and, before he can be entitled to relief, he must fully establish what he alleges to be true. Lyon, in his answer, as well as in his deposition, denies that any such agreement was ever made. Judge Miller testifies that he has no recollection of the complainant ever speaking to him on the subject or advising him' of the alleged understanding between him and Lyon. The only evidence introduced tending to establish the alleged agreement is that of the complainant alone. The evidence of Lyman Allen does not tend to prove the fact that Lyon admitted that such was the agreement, as this testimony refers to a conversation before suit was commenced. The complainant refers in his deposition to a conversation before the suit, in which it is claimed that Lyon should have stated that he (Johnson) need have.no further trouble, as the lot mortgaged was sufficient security for the balance of the debt, but the alleged agreement was made after the suit was commenced and in consideration of the promise made by the complainant that he would not plead usury.
The complainant’s evidence alone is all that tends to show that he had reason to suppose the suit would be dismissed. This is met by the testimony of Lyon and his attorney. It is, therefore, not clearly established that the complainant had good reason for believing the suit would be dismissed as to him.
We do not propose to refer in detail to the evidence tending to contradict the record entry that the defendants appeared by their attorneys, and that j udgment was rendered by consent of parties, &c.
The complainant was duly served with notice of the pendency of the suit against him, and without an appearance, Lyon was entitled to his judgment. The action of the attorneys in consenting to a' judgment, with a stay of nine months, could not in anywise prejudice his rights.
Failing, therefore, to establish the fact that there was good cause for the complainant to believe that the suit as to him was to be dismissed, the report of the referee should have been set aside.
Reversed.
