Warthen v. Himstreet

Waterman, J.

Defendant Himstreet and plaintiff were sureties on tire note of A. L. Warthen. Himstreet paid the note, and thereafter brought suit against plaintiff and A. L. Warthen for the amount due on the note and attorney’s fees. He obtained judgmentfor the sum claimed. After a time, some land of M. A. Warthen being sold, an amount sufficient to pay said judgment was reserved out of the purchase price by defendants Carruthers & Son, who paid therefrom to Him-street one-ha-lf the amount of his judgment, and still retain the remainder, awaiting the result of this action. It is claimed the judgment obtained by Himstreet is invalid, on grounds which will be later set out. It is prayed that the money held by Carruthers & Son be ordered paid into court, and plaintiff be decreed the owner thereof, and that she have judgment for the amount of the attorney’s fee paid to Himstreet, which was one-half •the amount of the fee included in his judgment.

1 II. The first claim made by appellant is that no legal judgment could be rendered on the pleadings in the action by Himstreet. The petition in that action alleged that Him-street and plaintiff were sureties on the note of A. L. War-then; that plaintiff paid to the holder the amount due, and said note was assigned to him. The original notice in that case recited that plaintiff, as surety, had paid the note, and would ask judgment for the amount due thereon, with attorney’s fees. The defendants made default, and judgment was rendered for the sum prayed, with attorney’s fees. The claim now made is that a surety who pays a note has no right of action thereon against his co-surety; that, at most, Himstreet could only recover of the plaintiff one-half the amount which he paid. Both of these contentions may be admitted, but we think they are presented too late to avail plaintiff. Himstreet was clearly entitled *607 to maintain an action for contribution against plaintiff. By tbe original notice, plaintiff was warned of tbe amount fon which judgment would be asked. We have held that a defendant may be concluded by a default when the facts stated in the petition do not constitute a good cause of action at law, or when the petition is so defective as to be vulnerable to a demurrer. Fred Miller Brewing Co. v. Capital Ins. Co., 111 Iowa, 82 , and eases cited. Doubtless, if no cause of action is stated, a default has no such effect. Bosch v. Massing, 64 Iowa, 312 . But Himstreet did state a cause of action. The defect in his petition was in matter of form only,, and this the defendants could waive, and by their non-appeai - anee did waive. The fact that the judgment was excessive as-against plaintiff will not avail her in this action. She knew what was claimed, and permitted the action to go to judgment, giving the matter no attention. It is too late now to-complain on this score. Shricker v. Field, 9 Iowa, 366 -371; Railroad Co. v. Hall, 37 Iowa, 621 ; Doyle v. Reilly, 18 Iowa, 108 ; Code, section 3440.

2 III. Plaintiff, however, claims that the judgment in Himstreet’s favor was procured by fraud, and we turn now to the testimony on this issue. Plaintiff is the mother of A. L. Warthen the principal on the note. A. L. Warthen testifies that it was agreed between him and Himstreet and the latter’s attorneys, Powell' and Boss, that judgment should be taken against his mother for only one-half of the amount paid on the note. This is denied by Himstreet, Powell, and Boss, who assert that A. L. Warthen, claiming to-represent his mother, agreed that judgment might -be taken, for the full amount due on the note, with attorney’s fee,, against both him and his mother, if Hintstreet would stay-execution, and would agree to bring no action to set aside-certain conveyances of real estate previously made by his: mother. We are satisfied the agreement was as last stated, *608 .and that there was no fraud in obtaining the judgment. It is, perhaps, true that A. L. Warthen had no authority from his mother to make any such agreement, and doubtless he told her that judgment would be taken against her for only her share of the liability on the note; but, if so, Himstreet :is not responsible. A. L. Warthen was not his agent or representative. If plaintiff was misled by her son’s statement, ¡she, and not Himstreet, must suffer. Our conclusion is that •the judgment of the district court must be aeeirmed.