77 Iowa 97 | Iowa | 1889
II. It is not, and cannot be, claimed that the judgment in question is in personam, and bound Price or his property other than as a judgment in rem. But it is insisted that the evidence shows that Price appeared in the action by attorney, and therefore he should be held bound personally by the judgment. We think that the evidence fails to overcome the decree which declares that the court found that defendant Price appeared neither in person nor by attorney, if, indeed, it is not conclusive, and may be contradicted by evidence dehors the record. The record at a prior term recites that attorneys entered their appearance for Price. But it is not shown that the appearance was to the cross-bill. The appearance, doubtless, was to the original action, and not to the cross-bill. This conclusion is supported by the fact that the attorneys entering their appearance for Price were in fact, as is shown by the decree and the papers in the case, the attorneys of Scovil, the plaintiff in this case. It is not to be jjresumed
III. One of the attorneys testifies that his firm did appear in the case for the defendants, — Price among the number. He does not testify that he appeared to the cross-bill for Price. He could have properly appeared in the case for Price in resistance to the original petition, but he could not have appeared lawfully in resistance to the cross-bill. The law will presume he did not appear to the cross-bill for Price. The record will thus be consistent with itself, and all parts of it will stand, and it will appear that the attorneys did not violate their professional duty by appearing both for the plaintiffs and defendant in the cross-bill.