107 Iowa 34 | Iowa | 1898
I. Tbis action was to recover of defendant tbe amount of two promissory notes, and of an account alleged to be due and owing the plaintiff. The action was aided by attachment. Defendant admitted the execution of the notes, pleaded payment, and also asked judgment on a counter-claim based upon an open account. On the issues thus joined the cause was sent to a referee, who heard part of the evidence. During the trial before the referee the parties entered into an agreement of settlement, by the terms of which it was determined that there was due plaintiff the sum of four hundred and eighty dollars. It was also agreed that the sheriff should turn over to plaintiff, out of the cash and notes in his hands, the sum of four hundred and
Appellant contends, however, that neither he nor his counsel had any notice that the matter would be presented to the court. The record recites, however, that there was an appearance by counsel and the evidence adduced upon the hearing of the motion to vacate is in conflict. As the case is not triable de novo, we must assume that the trial court held there was an appearance for the plaintiff to the motion of defendant to tax costs. If there was an appearance, then it is clear that plaintiff’s remedy was by appeal from the judgment taxing the costs to him. But, if it should be found that plaintiff did not appear, he is in no better position. The case was pending in court, and it was the duty of counsel to attend to it. No notice was required, unless it be the trial notice referred to in rule 2 of the rules of practice adopted by the district judges of the state, found in McClain’s Annotated Code, p. vii. of the preface. We are of the opinion, however, that this rule does not apply to motions, and that plaintiff