Webster v. Page

54 Iowa 461 | Iowa | 1880

Beck, J.

l. new trial: alan.1' guar I. The plaintiff seeks to vacate the judgment rendered against him, and to obtain a new trial, under paragraphs 5 and 8 of Code, § 3154, which authorize a judgment to be vacated on the ground that the proceedings were erroneous, and the errors and his minority do not appear in the proceedings, and for errors generally, in a judgment against a minor, if shown within twelve months after he arrives at full age.

II. The plaintiff insists that the court below erroneously sustained the motion for reason that plaintiff did not appear in the original action by guardian. This position is not sustained by tbe record. A guardian ad litem, was appointed and did appear for plaintiff. It is true that the appointment was made during the trial, and after answer by attorney. The attorney was appointed guardian ad litem, and continued to act for plaintiff thereafter. In the absence of prejudice resulting to plaintiff, and none is shown, this was sufficient, and plaintiff cannot object on that ground to the judgment. Wickersham v. Timmons, 49 Iowa, 267.

III. The petition alleges that plaintiff’s guardian at law_ was, during the trial, sick and unable to make defense for him. But it does not appear that this matter was brought to the attention of the court. There was, and could have been, no error committed in reference thereto. The court in this proceeding is not authorized to grant a new trial on the ground of misfortune or casualty.

3. —:-. IY. It is insisted that there was error in that the evidence, upon several questions of fact, does not sufficiently support the judgment. The errors which may be considered in this proceeding, and which will authorize the court to vacate the judgment, are such as would be a ground of reversal upon appeal. Bickel v. Erskine, 43 Iowa, 213.

The issues in the case upon which plaintiff insists there was not sufficient testimony to support the verdict were the subjects of conflict in the evidence. The testimony will not be weighed upon appeal in an action at law, and the judgment reversed upon a mere preponderance of evidence. There must be such* an absence of proof to support the judgment as to authorize the conclusion that it was the result of prejudice or passion. Nothing of the kind appears in this case.

No other questions demand consideration.

Affirmed.