Byington v. Crosthwait

1 Iowa 148

• Court: Supreme Court of Iowa
• Decided: June 15, 1855
• Status: Published

Opinion

Weight, C. J.

This judgment must be reversed. These proceedings were commenced against the owners of the land. By the law, the notice in such cases has to be the same as in cases to foreclose a mortgage, and where the owner is not known, the action may be brought against the land itself; and in such case, the service must be as in the case of a non-resident. Sections 506 and 507. By section 2083, the holder of a mortgage may proceed by civil action in the District Court, to foreclose the same. Section 1826, regulating defaults in civil actions, provides “ that when service has been made by publication only, and there is no appearance, default shall not be entered, until proof has been made that a copy of the petition and notice was directed to the defendant, through the post-office, at his usual place of residence, &c., or that such residence was unknown,” &o. In this-case, no such affidavit was filed or proof made, nor any attempt to do so. In the absence of such proof, it was clearly irregular and illegal to render judgment against the defendants by default. This is clear from the- Code, and has been so decided by this court. See Pinkney v. Pinkney, June term, 1854.

Judgment reversed, and cause remanded.