Cole v. Conner

10 Iowa 299

• Court: Supreme Court of Iowa
• Decided: January 20, 1860
• Status: Published

Opinion

Lows, C. J.

The foreclosure of' a mortgage under the Code of this State, is a proceeding in personam as well as in rem; and the service of notice upon the person of defendant in the county where he resides, confers upon the court equal jurisdiction with that of the mortgage premises. In this case the object of the suit was not simply to foreclose the equity of redemption by a sale of the premises, but to obtain judgment against the defendant for the whole demand, to be satisfied by general execution against his property, in the event the land mortgaged should fail to pay the same under sale by a special execution. It follows that the jurisdiction of the court did attach, and it was error to abate the suit, because it had not been brought in the county where the land is situated. It is believed, however, that the jurisdiction is local, and can obtain only in the county where the land lies, where the object of the proceeding is only to sell and foreclose the equity of redemption. Still in such an event the suit should not be dismissed, but should be sent to the proper county, under section 1702 of the Code.

Judgment reversed and cause remanded.

1 . Hon. L. D. Stockton was a Justice of the Supreme Court until the flato of his death, June 9th, 1860. He was prevented, however, by illness from being in attendance when any of the causes hereafter reported wore determined. Hon. Geo. G. Weight was appointed by the Governor to fill the vacancy occasioned by the death of Judge Stockton, and appeared and took the oath of office on Wednesday, the 27th day of June, 1860.