 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
COSTELLO v. MCFADDEN9/18/1996
ter v. Rountree, 109 N.C. 29, 32, 13 S.E. 716, 717 (1891) (citation omitted).
From the foregoing authorities, we are able to distill some general principles concerning what constitutes an irregular judgment for purposes of rule 252(b). First, we think the rule covers the cases where a party suffers an adverse ruling because of some action or inaction on the part of the court or some court personnel. See Anchor Sav. & Loan Ass'n v. Dysart, 189 Kan. 147, 150, 368 P.2d 293, 295 (1962) (" he test to be applied in all cases [in which a party is claiming irregularity in obtaining a judgment] is the want of adherence to some prescribed rule or mode of procedure on the part of the trial court in rendering the judgment in question.") (emphasis added).
Second, the action or inaction must be contrary to some prescribed rule, mode of procedure, or court practice involving the conduct of a lawsuit. And the party complaining must not have caused, been a party to, or had prior knowledge of the breach of the rule, the mode of procedure, or the practice of the court.
Rule 252(b) mentions fraud as another ground for vacating a final judgment. In contrast to irregularity, fraud was meant to cover the conduct of a party who obtains the judgment. The fraud referred to must be extrinsic, that is, some act or conduct of the prevailing party that has prevented a fair submission of the controversy. In re Marriage of Short, 263 N.W.2d 720, 723 (Iowa 1978). Extrinsic fraud includes lulling a party into a false sense of security or preventing the party from making a defense. Id.
We have recognized the underlying purpose for vacating judgments resulting from extrinsic fraud is to promote the policy of law that every cause of action should be tried on its merits. Id. We think the same purpose underlies the irregularity ground in rule 252(b). As we alluded to in Forsmark, we think an additional purpose underlying the irregularity ground in rule 252(b) is to ensure that litigation is fair and orderly. See Forsmark, 349 N.W.2d at 767.
B. Do the alleged ethical violations constitute an irregularity for purposes of rule 252(b)? We conclude the alleged ethical violations do not constitute an irregularity for purposes of rule 252(b), even if eventually proven in another forum. (Like the district court, we make no determination whether Brown committed any ethical violations, leaving that question for another forum.) There is no evidence that either the court rendering the judgment or court personnel was a party to or had knowledge of the alleged ethical violations. None of the alleged ethical violations relate to the breach of any rule, mode of procedure, or court practice pertaining to the conduct of the litigation. In short, the allegations of attorney misconduct relate solely to the relationship between McFadden and his attorney, Brown. The allegations have nothing to do with the court, court personnel, or the conduct of the litigation.
C. Did Brown consent to the motion for summary judgment? If he did, did the consent amount to an irregularity for purposes of rule 252(b)? We move to McFadden's fall back position: Brown's failure to resist the [553 NW2d Page 613]
summary judgment motion was tantamount to an unauthorized consent to a judgment, and such consent was an irregularity under rule 252(b).
"Consent" is "a voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another." Black's Law Dictionary 305 (5th ed. 1990). See also In re R. Eric Peterson Constr. Co., 951 F.2d 1175, 1180 (10th Cir. 1991) (statute provided that debtor may not obtain damag
Page 1 2 3 4 5 6 7 Iowa Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|