Cooper v. Smith

25 Iowa 269

• Court: Supreme Court of Iowa
• Decided: July 3, 1868
• Status: Published

Opinion

Cole, J.

Ordinary action to recover $109 loaned money, as claimed in the petition. The petition is in the usual form in such actions, and also sets forth that the defendant is a non-resident of the State of Iowa and has property within the county liable to execution, and asks an attachment. There is the usual form of an affidavit to the petition, signed by the agent of plaintiff, but there is no signature to the jurat. A writ of attachment was issued, but was never served upon property, nor garnishee charged thereunder. The proper affidavit of non-residence, to authorize service by publication, was filed, and due publication, and proof of service thereby, was also made and filed. At the succeeding term, the plaintiff’s attorney had the defendant called, and, no appearance being made, either in person or by attorney, a default and judgment was entered against the defendant for the amount claimed.

This judgment is void. It is an elementary doctrine, that, where no process is served on the defendant, nor property attached, nor garnishee charged, nor appearance entered, a judgment against the defendant, based on a publication of the pendency of the suit, will be void, and may be impeached collaterally or otherwise, and forms no bar to a recovery sought in opposition to it, nor any foundation for a title claimed under it. Drake on Attachments, § 449; Eaton v. Badger, 33 N. Hamp., 228; see also Hodson v. Tibbetts et al., 16 Iowa, 97; Johnson v. Dodge, 19 id. 106. Besides, the jurat to the affidavit in this case was not signed by any one, and the petition, therefore, not properly shown to have been verified.

Reversed,