(dissenting).
In In re Marriage of McGonigle, 533 N.W.2d 524 (Iowa 1995), we started down the slippery slope toward emasculating Iowa Rule of Civil Procedure 13 and our interpretation of it in Garcia v. Wibholm, 461 N.W.2d 166, 170 (Iowa 1990). I say we should draw the line in this case, and I think there is good reason to do so.
The waiver the majority relies on is this paragraph in the stipulation:
Respondent has been advised of his right to seek counsel of his choosing. He has chosen not to proceed with counsel and affirmatively states Petitioner’s counsel has not given him legal advice and does not represent him.
Significantly, this language neglects to mention that petitioner’s counsel told Smith of Smith’s rights under rule 13. To the contrary, the language affirmatively says counsel has not given Smith legal advice.
Waiver is the “intentional or voluntary relinquishment of a known right.” Black’s Law Dictionary 1580 (6th ed. 1990). The record is silent on whether Smith knew of his rights under rule 13 but was nevertheless waiving those rights. Without such evidence, we can hardly say that Smith intentionally or voluntarily waived his rights under rule 13.
The majority’s heavy reliance on McGoni-gle is misplaced. As the majority points out, in McGonigle we explained that rule 13 “is intended to bring before the court, through one acting as an officer of the court, the vicarious presence of one who for some reason is unable to attend a civil trial or present a defense.” McGonigle, 533 N.W.2d at 525. Here Smith was not before the court either in person or vicariously through an officer of the court.
I would hold that the judgment in this ease is void, and I would reverse and remand for a trial on the issues Smith raises.