Davis v. Keith

23 Iowa 419

• Court: Supreme Court of Iowa
• Decided: December 16, 1867
• Status: Published

Opinion

Wright, J.

judgment: diction.'*urls The order dissolving the injunction was clearly right. The notice in the foreclosure proceedings did not notify Davis (the present plaintiff) that no personal claim was made against him. Being duly served he had no right to presume that the plaintiff therein would not demand such relief and such redress as.he was entitled to under the case made by his petition. ' He was bound to take notice of all the matters alleged in the petition. The court thus had jurisdiction, and, beyond all dispute, power to award against him the costs of said proceedings.

Whether the court held correctly, in so ordering, is not now the question, but did it have the power? For if it did, then in the absence of fraud, of which there is no pretense, plaintiff could not, in this method, inquire into the correctness of said judgment.

. The case differs very widely from Standish v. Dow et al. (21 Iowa, 363), as the briefest examination of the facts and the points there ruled will readily show, and the same is true of Frink & Co. v. Whicher (4 G. Greene, 382), and Harkins v. Edwards & Turner (1 Iowa, 300), relied upon by appellant’s counsel.

The cáse is affirmed upon the ground that plaintiff was duly served in the foreclosure proceedings. He was thus affected with notice of all the petition in that case claimed; there was no fraud; the court had the power to thus award the costs, and, if erroneous, injunction is not the proper method of correcting the same. His remedy was by motion or appeal, or both.

Affirmed.