Bryant v. Williams

Cole, J.

*331

i. judgaphorized anee.

*330 There is no controversy as to the fact that the plaintiff in this action, A. S. Bryant, who was named *331 as defendant in the suit on the note, was not served with notice of the pendency of that suit, and had n0 notice in fact of it; and that the attorney who filed the answer had no authority to appear or answer for Bryant. Under such facts, the rule is now well settled in this State that a defendant who has been represented by an unauthorized attorney has the right to be relieved against the judgment by a direct action in equity to set it aside. Harshey v. Blackmarr, 20 Iowa, 161 . See also, article on Attorney and Client, Am. Law Reg., N. S., vol. 5, p. 385, and authorities there cited. But the action to set aside the judgment must be brought promptly after a knowledge of its rendition has come home to the defendant. If there should be an unreasonable delay in bringing the action, and third persons should, in the meantime, acquire interest in the judgment, the delay might operate as an estoppel in favor of such third persons.

2_lien retamea. It would also be the better practice, in cases where the party against whom a judgment has been thus rendered concedes a just indebtedness to any amount, Upon -fog cause of action, to tender such amount before bringing his suit to set aside the judgment. But we are not prepared to hold that such tender is necessary in all cases to enable a party to maintain his action to set aside- such unjust and unauthorized judgment. But whenever it appears that some amount is due on the cause of action upon which the unauthorized judgment was rendered, and, as in this case, there has been some delay in bringing the suit to set it aside, the court will retain and continue the lien of the original judgment for the payment of such judgment as may ultimately be rendered in the case. And when the pleadings are properly framed, and the nature of the cause of action will justify it, the court of equity, setting aside the unauthor *332 ized judgment, will render such new judgment as shall be just and proper under the proofs in the case.

The judgment of the District Court is reversed, and the judgment -rendered in the case of Louden Mullen against C. M. Steinberger, C. E. Stone and A. S. Bryant, so far as the said Bryant is concerned, will be set aside, but the lien thereof will be retained, so that the judgment ultimately rendered in said cause will become a lien from the date of the original judgment, and bind the property of the defendant Bryant accordingly.

Reversed.