Sloss v. Bailey

104 Iowa 696 | Iowa | 1898

Ladd, J.

This action was brought to recover seventy-six dollars and thirty-four cents- on certain promissory notes, and judgment was rendered in the justice court for fifty-six dollars and fifty-five cents. On appeal, .in the district court, the jury returned a verdict in favor of the- plaintiff for ninety-three cents, for which amount judgment was entered; and after-wards, on motion of the defendants, all costs were taxed against the plaintiff. This ruling was based on an alleged offer to confess judgment for one dollar and costs in the justice court. The motion was resisted by affidavits tending to show that the plaintiff ivas not present when any offer was made, had no notice thereof, and that none was in fact made. It was supported by affidavits to> the contrary.

1 After stating, these facts, we are asked the question, in the certificate of the trial judge: “Where the record of the justice before whom the case avus tried below shows that the defendants in the justice court made an offer in writing to confess judgment in- favor of the plaintiff .for one dollar and costs prior to entering upon the trial of the case below, are affidavits tending to sIioav that no offer to confess judgment Avas in fact made by defendants in the court below, competent; that is, can the record of the justice of the peace as to such offer be contradicted or supported by affidavits?” The statute requires the offer to- confess judgment, after an action is brought, to be made in the presence of the plaintiff, or after notice to him that it will be made. Code, section 3818. It is not a matter of pleading, may be oral, and, Avhere the record is silent, may be shown by parol testimony. City of Davenport v. C., R. I. & P. R. Co., 38 Iowa, 633; Barlow v. Buckingham, 68 Iowa, 169. But the making of the offer is a part of the court proceedings, and it was appropriate for the justice to determine whether made as contemplated by law. Though it might be shown when omitted, this did not relieve the court of the duty of passing upon the question, and entering his conclusion of record. The manner of making it is not raised by the inquiry, though it may fairly be inferred’ therefrom that this was done as required. That such a record is a verity is conceded, and, if so, it may not be varied or contradicted. Farley v. Budd, 14 Iowa, 289; Maynes v. Brockway, 55 Iowa, 457. It is said, however, that the authorities allow parol testimony to prove a fact on which the record is silent, — -to' supply an omission. That point is not raised by the question. The record being a verity, evidence aliu-nde to support or contradict it would be unnecessary, and therefore not admissible. Whether it might be received to supply an omission, no intimation of which is found in the question, we are not called upon to determine.

2 The second inquiry is: “Must the transcript of the justice in such a case expressly show that the plaintiff was present in court when such offer to confess judgment was made?” The statute provides that the offer shall be effectual, if in pursuance of notice to the plaintiff. Undoubtedly, the offer might be made to an attorney or agent acting for the plaintiff in the prosecution of the suit. If it appears from the record that the offer was made as contemplated, or this is the necessary inference from the language employed, then enough is shown. If the record is silent, then parol evidence is admissible to establish the offer.

3 The third question involves an examination of the record and the proceedings of the justice. This cannot be done. Stern v. Sample, 96 Iowa, 341; Buchanan County Bank v. Cedar Rapids, I. F. & N. W. R’y Co., 62 Iowa, 494; Long v. Railway Co., 64 Iowa, 541. The certificate must set out the very point to be determined. McLenon v. Railroad Co., 69 Iowa, 320; Bennett v. Parker, 67 Iowa, 451; Cooker Co. v. Olive, 82 Iowa, 122. The fact that the certificate contains- the transcript and the proceedings on the motion does not obviate the rule. Under 'the law as interpreted by this court, the question itself must raise the desired point, without resort to the record. — Affirmed.