55 Iowa 49 | Iowa | 1880
A demurrer to the petition was overruled, and thereupon, defendant refusing to further plead, judgment was entered that “ the record entry in the cause be and the same is hereby corrected to show and read that the petition of intervention in the cause * * * * * * js dismissed by order of the court without prejudice, for failure of inter? enor to appear and prosecute the same.”
Defendant insists that the demurrer was erroneously overruled, and that the court was not authorized upon plaintiff’s petition to grant the relief provided for in the judgment.The consideration of these objections demands our attention.
II. Code, ,§ 3154, provides that the court in which a judgment has been rendered shall have power after the term to vacate or modify it for fraud practiced by the successful party in obtaining it. Section 3155 provides that the application for relief under the preceding section shall be by petition, and prescribes the time within which it shall be filed. This provision was complied with in this case.
III. The defendant urges that the petition does not allege the attorney’s act was fraudulent and charge fraud in these words. But the fraud is sufficiently charged by alleging the facts constituting it without alleging that such acts are fraudulent, or designating them as a fraud. ¥e conclude that, as the petition alleges facts which the law regards as a fraud upon the rights of plaintiff, the demurrer was correctly overruled.
Beversed.