Owen v. Smith

Deemer, J.

These two cases are submitted together upon a single brief for the plaintiffs; the defendants making no appearance here. The proceedings are by certiorari to review the action of the defendant judge, while sitting as judge of -the district court of Linn county, in setting ¡aside and vacating judgments of dismissal in two separate actions brought by one J ohn McAllister against Carl Gwen ‘atnld/ Emma Kendall and E. N. Beach, respectively, to enjoin them from further conducting 'alleged liquor nuisances. These actions were commenced for the January, 1911, term of the Linn county district court; and in each the defendants appeared and filed motions for more specific statement. These motions were submitted and sustained, and, as the plaintiff therein refused 'to comply with the orders, judgments of dismissal were entered in each case on March 23, 1911. No exception appears to have been taken, and. certainly no notice of appeal was given, in either case. At the next term of said court, .commencing on April 10th of the same year, arid on the 21^t of 'that month, the trial court made the following order in each case: “Now, to wit, this 21st day of April, 1911 it still being of the regular April, 1911, *465 term of this court, Hon. Milo P. Smith, presiding judge, the judgment of dismissal made in 'this cause at the January, 1911, term of this court, to wit, on March 23, 1911, is hereby set aside on the verbal request of plaintiff's attorney, M. S. Odie, and the cause reinstated as to pars. Nos. 1, 3, 4, and 5 of the petition. The attorneys for defendants, Voris & Haas, being present in courtroom, are called, .and object that no legal cause is shown for setting ■aside said judgment, and that the court has no jurisdiction. Said objections are overruled, and defendants except”

client: appearance: when not bmding. This was without notice to the defendants in the action; and no appearance was made for them, unless the recitation in the order should be taken as constituting either an appearance by attorneys, or as sufficient notice to bind their clients. Mani- • fe&tly there was no such notice to the defen d ants or 'their .attorneys as the law requires; and there was no such appearance as would bind their clients. True they objected to the order of vacation, and said to the court 'that it had no jurisdiction. There is no presumption that they had any authority to appear for their clients at that stage of the proceedings. The case had been ended at a prior term; and they had no implied authority to appear at a subsequent one. Indeed, formal notice to them of the 'application to vacate would not have been binding on their clients. Perry v. Kasper, 113 Iowa, 268 ; Kwentsky v. Sirovy, 142 Iowa, 385 ; Bardes v. Hutchinson, 113 Iowa, 610 ; Iowa Saving Ass’n v. Chase, 118 Iowa, 51 .

2. Judgments; vacation: notice: jurisdiction: certiorari. The judgment of dismissal might, perhaps, have been vacated under section 4093 et seq. of the Code ait a subsequent term. But this could not be done without notice to the other parity. Hawkeye Ins. Co. v. Duffie, 67 Iowa, 175 .

'Without this notice, the trial court had no jurisdiction, *466 and its orders vacating the judgments were null and void. Wetmore v. Harper, 70 Iowa, 346; Browne v. Kiel, 117 Iowa, 316 ; McConkie v. Landt, 126 Iowa, 317 . That certiorari is the proper remedy in such cases, see Bardes v. Hutchinson, supra.

The order vacating the judgments of dismissal must each be, and it is, annulled, and the cases remanded for judgments in harmony with this opinion. — Annulled and remanded.