| Iowa | Mar 10, 1916
I. The judgment which is sought to be set aside was rendered upon a promissory note for the sum of $1,000, signed by plaintiff herein, and made payable "to F. O. Peterson, now deceased. It was executed May 22, 1903, and, as we understand it, was secured by second mortgage' upon some real estate. Subsequently, the note was endorsed by Peterson to the Callender Savings Bank for some shares of stock in an insurance company. The bank brought suit on this note in the district court of Polk County against Loos, and Peterson, the endorser of the note. Loos pleaded fraud and duress in obtaining the note, and Peterson interposed a general denial. Upon a hearing before a jury, the trial court directed a verdict against Loos, which, upon appeal to this court, was reversed. See Callender Savings Bank v. Loos, 142 Iowa 1" court="Iowa" date_filed="1909-03-18" href="https://app.midpage.ai/document/callendar-savings-bank-v-loos-7113383?utm_source=webapp" opinion_id="7113383">142 Iowa 1. Procedendo was filed in the district court, May 3, 1911, and on August 20, 1912, plaintiff in the action filed a trial notice. The cause was on the calendar for the September and November terms of that year, and it was marked “for trial”. On September 12, 1912, the judge presiding called the calendar and, reaching the case of Callender Bank v. Loos, dismissed the same on his own motion, for want of attention. On October 4th of the same year and during the same term, the court, on plaintiff’s motion, reinstated the cause upon the docket and assigned it for trial on October 7, 1912. All these orders were made without any notice’s being served upon Loos. The Callender Bank assigned the note back to Peterson, and he was substituted as plaintiff. When the case was reached for trial on the day assigned, Loos did not appear, and Peterson took judgment against him upon the note for the amount thereof, with interest. Thereafter, on February 19, 1915, plaintiff commenced this action to set aside the judgment so obtained, as being without jurisdiction, in that he had no notice of the reinstatement of the case after its dismissal “for want of attention”. He pleaded that he was in no manner indebted to Peterson upon the note and that the judgment was obtained through fraud. He averred also that he had no
The original case of Callender Savings Bank v. Loos was reversed by this court for errors committed on the trial, and it was remanded for a new trial, no judgment being ordered by this court, and, as already pointed out, procedendo was returned and the case was again placed upon the docket for trial. A trial notice was filed for the September, 1912, term of court; but the presiding judge evidently overlooked this, and in calling the docket, ordered a dismissal of the case at plaintiff’s costs, for want of attention. Within a short time thereafter, and during the same term, the judge’s attention was called to the matter, and he set aside the order and judgment, ordered a reinstatement of the case, and assigned it for trial on October 7, 1912. When reached on this assignment, plaintiff herein (defendant in that action) made no'appearance, and judgment was rendered against him on the notes. Nothing was done by him with reference to this judgment until he commenced this suit, and he testified that he knew nothing of the judgment until a few days before, when the sheriff appeared to levy upon some property of his, and that he then commenced this independent action in equity to set aside the ■ judgment because of want of jurisdiction in the court over his person. Whether or not he knew of the judg
Upon the first question, we have recently held that an order of dismissal, such as was here entered, could not be expunged and the cause reinstated at a subsequent term of court without notice to the party in whose favor the original dismissal was entered. See Des Moines Union Railway Co. v. District Court of Polk County, 170 Iowa 568" court="Iowa" date_filed="1915-06-21" href="https://app.midpage.ai/document/des-moines-union-railway-co-v-district-court-7116351?utm_source=webapp" opinion_id="7116351">170 Iowa 568. The question as to how far a court might go in this respect at the same term without notice was expressly left open for future consideration. Section 243 of the Code of 1897 provides that the record made by the district court is under the control of the court, and may be amended or any entry therein expunged at any time during the term at which it is made or before it is signed by the judge. It does not appear that the record of dismissal was signed by the judge, and it is expressly shown that it was expunged at the same term, upon suggestion of counsel for Peterson, but without notice to plaintiff herein.
“ ‘Entries authorized to be made in vacation shall be read, approved and signed at the next term of court, and may be amended, or any entry therein expunged, at any time during the term at which it is made, or before it is signed by the judge. ’ These provisions clearly confer upon the court jurisdiction over its records, and the authority to refuse to approve, and to expunge, improper records. The court did not act without jurisdiction over the subject-matter. It is claimed, however, that no notice was served upon the plaintiff of the filing of the motion to set aside the vacation entry, and that the judge acted without jurisdiction over the person of the plaintiff. The plaintiff was advised by the law that the vacation entry which he had obtained was subject to the action of the court at the next term. He could not place such an entry upon the records and then withdraw from the court, so as to deprive the court of jurisdiction to pass upon the correctness of the entry. For all purposes connected with the approval*582 of the entry, he must be regarded as in court and subject to its jurisdiction, until final action is taken.”
In the Willson case, supra, the court used this language:
“It follows, we think, that if the court may set aside a decre.e or order on the motion of one of the parties, without notice to the opposite party, the court may set aside, on its own motion, without such notice. In Carpenter v. Zuver, 56 Iowa 390" court="Iowa" date_filed="1881-06-16" href="https://app.midpage.ai/document/carpenter-v-zuver-7099545?utm_source=webapp" opinion_id="7099545">56 Iowa 390, it was held that the court may, at the next term after a vacation order is made, proceed to correct or expunge it, without notice to the party at whose instance it was made, and that the case is pending until a final determination. ’ ’
The rule is based upon the thought that, until there be a final judgment binding upon the parties as an adjudication, the court, during the term at which it is rendered, having full power over its own records, may expunge, change or modify the same without notice; since, until final judgment of the court, it has full and complete jurisdiction of the case and control of its records, and everyone is presumed to be in court until the final judgment is pronounced and the term is at an end. This is peculiarly so as to all interlocutory orders, which the court may change at any time on its own motion. It has frequently been held that a judge during term time may change his ruling on a demurrer or upon any other interlocutory matters during the term, or may change a record to make it speak the truth. Plere -the order of dismissal was improvidently made; for the plaintiff in that case was giving it attention, and had filed a trial notice in the case for that very term, and, upon having his attention called to the matter, the judge set aside the order of dismissal and assigned the case for trial, because of the trial notice filed for plaintiff.