Myers v. Funk

51 Iowa 92 | Iowa | 1879

Day, J.

i. jmisracmission of agreement. — The only question which the record presents pertains to the jurisdiction of the court to determine the cause-during the vacation following the April Term, 1876. As appears from the record, the testimony in the cause was all documentary and depositions, and the evidence was ready for submission at the March Term, 1875. At that term a part of the testimony on the part of the plaintiff was introduced, when the court expressed a preference for taking the papers with him,, and examining and determining the cause in vacation. Neither party objected to this suggestion of the court. Neither party insisted upon submitting further evidence to the court. By stopping further proceedings in the case, and submitting. without any objection to have the trial arrested, they impliedly agreed that the cause might be taken by the court and determined in vacation. In fact the conduct of the parties amounted to a submission of the cause to be determined in vacation. Section 183 of the Code provides: “With consent of parties, actions, special proceedings and other matters pending in the courts named in this chapter, may be taken under advisement by the judges, decided and entered of record in vacation or at the next term; if so entered in vacation, they shall have the same,force and effect from the time of'such entry as if done in term time. ”

Appellant insists, however, that the agreement does not confer upon the court jurisdiction to determine the cause in vacation, because it was not in writing nor entered of record. The Code, § 213, provides: “An attorney and counselor has power * * * * to bind his client to any agreement in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court.”

The affidavit of the attorney of plaintiff was submitted in support of the motion to set aside the entry and redocket the cause. This affidavit shows an existence of all the facts which we hold establish an implied agreement to submit the cause to be determined in vacation. The agreement is established by the statement of the attorney himself, which is competent evidence under section 213, above quoted.

It is further claimed that no authority was conferred upon tbe court to determine tbe cause during any vacation except tbe one following the March Term, 1875.

It may be that the parties would have been entitled to a hearing in open court at the term following the March Term, 1875, if they had moved therefor, but they took no action in the premises at that or the following term. By their conduct they permitted the cause to remain submitted to be determined in vacation. Under the circumstances the judge had .jurisdiction to determine the cause at the time he filed his order for judgment with the clerk. ’

There was no error in striking from the files the motion to set aside the journal entry and redocket the cause for trial.

Affirmed.