87 Iowa 8 | Iowa | 1893
It is not disputed that the judgment upon which the action is founded was actually-rendered by a court of record in the state of Tennessee. Indeed, the record shows that the defendant was duly served with process in Tennessee, and that an answer was filed, and judgment was rendered in proper form. It is not necessary to set out the answer by which the validity of the judgment was put in issue. The substance of the defense was that the defendant was a resident of this state, and that the plaintiffs fraudulently induced him to go to the state of Tennessee, so that the service of a summons could be made upon him, and that after he went there, and the action was commenced, the plaintiffs induced him to allow said action to remain pending, with the understanding that no further action should be had therein until a settlement of certain claims growing out of the construction of a railroad should be had, and that, in violation of said understanding, the plaintiffs, without the knowledge of the defendant, took judgment against him. Other facts are averred in the answer, but they are not material and do not constitute a defense. And there was a motion and demurrer attacking the answer; which were overruled. We need not determine the questions raised by counsel for the appellants upon this ruling of the court. The exception to the ruling was waived by filing a reply. There is no real question in the case, except that arising upon the claim of the defendant that the judgment was obtained by fraud. All of the rulings of the court upon the admission and exclusion of evidence, which are complained of by the appellants, may be disposed of by the consideration that the evidence objected to was competent upon the question of
There is no real controversy as to the above facts. We will now proceed to state other facts, which, although not conceded to be true, yet are supported, either by a preponderance of evidence, or are based upon such evidence as would authorize a finding of their truth in an action at law tried by a jury, or by the court where a jury has been waived. J. S. McTighe was an active member of both partnerships, and he made an agreement with the Foleys that they should have supplies from the plaintiffs herein in advance of the estimates, and that payment should be made therefor out of the estimates. When the work was about closed up, the Foleys had drawn supplies to the extent of nearly three thousand dollars, which had not been paid for. A difference arose between the railroad company and McTighe & Co. and the Foleys about the amount due to the Foleys upon the completion of the work. But there was a much larger sum due to the Foleys from McTighe & Co. than would be necessary to pay for the supplies. William Foley and John Foley came to their homes in this state. After the lapse of some time, McTighe wrote a letter to the defendant herein, in which he said that they (McTighe & Co.) were then ready to make settlement,, and requesting the Foleys to go to Memphis “right away.” There is some dispute as to whether this letter was written by McTighe, but the court was fully warranted in finding that it was written by his hand. The defendant went to Memphis, and settled some claims for cotton destroyed in the prosecution of the- work, and then McTighe claimed that there was four thousand, eight hundred dollars for bridging, which should be charged to the Foleys. This was an unwarranted claim, because the Foleys did not contract to do any bridging. There was then actually due to the Foleys over five thou
Taking all this evidence together, the finding that McTighe wrote the letter to induce Foley to go to Memphis as a mere pretense by which he could obtain service upon him is well founded. It is true, it is not absolutely conclusive that such was his purpose, but it is a fair finding from all the evidence in the case. This being true, the case, so far as the facts attending the obtaining jurisdiction of the person of Foley are involved, is fairly within the rule of the ease of Dunlap v. Cody, 31 Iowa, 260, where it was held that if a person residing in one jurisdiction be induced, under-false pretenses or representations, to come into another, for the purpose of there getting service upon him, the jurisdiction thus acquired will be held to have been fraudulently obtained, and the judgment is void.
We do not think that, under the facts in this case, this position of the appellants can be sustained. It is true there are cases which hold that an appearance waives all objections to an original notice. Indeed, our statute so provides. Code, section 2626. But, where it is claimed that a judgment was obtained by fraud, an appearance is not always conclusive upon the defendant. In the case of Rogers v. Gwinn, 21 Iowa, 58, after a full consideration of the question, the following rules were announced, as shown by the headnotes to the opinion: “In an action in this state upon a judgment rendered by a court of a sister state, any state of facts which would be sufficient to avoid the judgment in the state in which it was rendered may be pleaded as a defense to the action in this state. That the judgment was obtained in another state after the plaintiff had agreed with defendant that he had no sufficient cause of action, and that he would dismiss his suit, and when the defendant, relying upon such agreement, believing that the suit had been dismissed, the record failing to
III. It appears from the record that after the testimony was all introduced, and pending the announcement of the decision of the case by the court, the plaintiffs asked permission to withdraw the cause and dismiss their action. An objection was interposed by the defendant, and the right to dismiss the case was denied. There was no error in this ruling. The cause was finally submitted to the court before the motion to dismiss was made, audit was not only finally submitted, but the court was announcing the decision. The application to dismiss came too late. Code, section 2844; Dunn v. Wolf, 81 Iowa, 688. The judgment of the district COUrt ÍS AFFIRMED.