30 Iowa 191 | Iowa | 1870
This cause and four others, involving the same or similar questions, were pending at the same time in the district court of Lee county. On the 4th day of December, 1868, an agreement, duly signed, was filed, in this ease, in said court, as follows: “This cause stands upon demurrer to plaintiff’s petition. It is agreed between the plaintiff and defendant Sample and their counsel that the
Pursuant to said agreement, and on the same day, the court, “being advised in the premises, overruled the demurrer, to which overruling of said demurrer and ruling of the court, the defendant, by his attorney, excepts at the time.” No other order or judgment was made or rendered in any of the causes at that term. The cause was appealed to the December term, 1868, of the supreme court, and was submitted, at that term, upon printed arguments. The opinion, affirming the judgment of the district court in overruling the demurrer, was filed at the Davenp'ort term, in April, 1869, and may be found in 26th Iowa, 562.
At the February term, 1869, of the lee district court, the following entry was made, to wit: “ On motion, it is ordered that a judgment be entered at this term, as of last, Kankin & McCrary appearing as attorneys for plaintiff, and K. P. lowe for defendant, and the court, being fully advised in the premises, sustains the motion: It is, therefore, ordered and adjudged that plaintiff have and recover of defendants the sum of $1,500, with interest, from this date, at the rate of six per cent, and costs. The judgment against Sample is against him as receiver.” At the September term of the lee district court the defendants filed an application, verified by affidavit of their attorney, to redocket the cause, to substitute O. C. Hale, receiver, as defendant, in place of H. W. Sample, deceased, to set aside the mmopro i/unc order made at the February term, and for leave to answer, etc. This application set forth the death of Sample, the appointment of Hale, the agreement, the' affirmance of the judgment, the entry of the mmo pro twio order, that the same was entered without any notice
Reversed.