#### Otis C. Dimick, Appellee, v. Joseph M. Munsinger et al., Appellants.

JUDGMENT: Vacation — Misunderstanding as to Decree. A pardonable misunderstanding between parties and their attorneys which results in a consenting by one of the parties to an unintended decree affords ample grounds for vacating the decree during the term at which it is entered.

Headnote 1: 34 O. J. pp. 207, 296, 310.

*Appeal from Mills District Court.*— W. C. Ratcliff, Judge.

December 14, 1926.

The defendants appeal from an order setting aside and canceling a final *decree.-*

Affirmed.

*C. E. Dean,*for appellants.

*William E. Shuman, Tinley, Mitchell, Boss & Mitchell,*and *Cook, Cook & Cook,*for appellee.

MorliNG, J.

The decree was vacated at the same term at which it was rendered, because of mistake or misunderstanding. The suit was brought in Mills County, to set aside a conveyance as a fraud upon creditors. Plaintiff and his counsel, Mr. Shuman, were nonresidents of the state. They were represented locally by Mr. Cook. Mr. Cook depended upon Mr. Shuman to attend to the getting of evidence and preparing the case for. trial. Communications between plaintiff’s counsel were by letter. Shortly before the May term, 1925, plaintiff, without the knowledge of Mr. Cook, had consulted Mr. Tinley, of Pottawattamie County, who had not previously been employed in the case, and was advised by Mr. Tinley to dismiss, if no cross-petition had been filed, and to begin a new action in the Federal court. In the correspondence between Mr. Shuman and Mr. Cook, Mr. Cook got the mistaken impression that plaintiff intended to finally dismiss and drop the ease. Mr. Cook had been notified by defendant’s counsel of intention to ask for affirmative relief, but, *785for the reason stated, gave it no attention, and did not discover that an amendment- asking that title be quieted in defendant liad been filed. When the ease was reached for trial, defendant’s counsel asked Mr. Cook if he should offer evidence, was told that he need not go to that trouble, handed Mr. Cook decree, asking if he cared to read it, was told that he did not. The decree was then signed, in the presence of Mr. Cook and with his consent, on May 15, 1925. On June 5, 1925, Mr. Cook wrote Mr. Shuman that the case was dismissed and the costs taxed to plaintiff. Meantime, Mr. Tinley was preparing a bill in the Federal court, and in the course of his investigation discovered the entry of the decree of which neither plaintiff, Mr. Shuman, nor Mr. Tinley previously knew, and which he immediately moved to vacate. The motion was sustained at the same term at which the decree was entered. Plaintiff’s counsel did not know of the filing of a cross-petition previously to this discovery of the decree.

By Section 10801, Code of 1924, it is provided that the record of the proceedings of the court is under the control of the court, and may be amended or .any entry therein expunged at any time during the term. The courts favor the disposition of eases on their merits, and are ever ready to relieve.for mistake and misunderstanding when they can do so without violating settled and necessary rules and substantial lights of adversaries. It is very clear that the dismissal was authorized by plaintiff on the assumption that no cross relief was demanded and that the dismissal would be without prejudice to the bringing of a new action. We are of the opinion that, under the circumstances, plaintiff was not at fault in not notifying Mr. Cook of his intention to bring a new action, and that Mr. Cook acted innocently, under misapprehension of his authority and of plaintiff’s intention. The court very properly exercised its discretion in vacating the decree. *Streeter v. Gleason,*120 Iowa 703.

The order *is*— Affirmed.

De Graff, C. J., and Evans and Albert, JJ., concur.