Day v. Goodwin

73 N.W. 864, 104 Iowa 374

Opinion

Waterman, J.

2 On October 3,1885, the defendants Ann Goodwin and Richard, her husband, being indebted to one H. M. Stevens, executed to. him their promissory note for the amount, and also a mortgage securing it, on the real estate in controversy, situated in Calhoun county, Iowa. An action was brought in the name of S-tevens, as plaintiff, and against the Goodwins and one Horton and one Dautremont, as defendants, to foreclose this mortgage, a.t the February term of the Calhoun district court. The proceedings thereafter in said foreclosure, in the order in which they occurred, are as follows: Corhplete record entry: “And now, to-wit, on this twentieth day of February, A. D. 1889, the same being the second day of the regular February, 1889, term of said court, Richard Goodwin, defendant, files answer. Default. Personal service, Ann Goodwin, A. A. Horton, L. A. Dautrefnocat. Now, to-wit, on this twenty-first day of February, A. D. 1889, the same being the third day of the regular February, 1889, term of said court, reply to. answer of Richard Goodwin. Defendant Richard Goodwin files motion to i ake evidence in form of depositions. Motion sustained, and the evidence of defendant is ordered to be in the form of depositions', and the plaintiff, a,t his election, may take his either in form of depositions or any way on the time of trial. Judgment for amount of one note and attorney’s fees against Ann Goodwin, defendant. To all defendant excepts, Richard Goodwin.’” This entry seems to be but a copy of the entry in the judge’s docket. On February 20,1889, a decree was signed by the judge, reciting due service of original notice upon Ann Goodwin, Horton and Dautremont, giving judgment against Ann Goodwin for one thousand two hundred and ninety-one dollars and nine cents, with interest at eight per cent, and costs of suit taxed at sixty-nine dollars and twenty-six cents, .and decreeing a foreclosure of the mortgage and sale of the land, and ordering special execution therefor. This decree was filed, with the papers in the cause, February 20, 1889, but was never recorded. On October 10 of the same year, the matter coming on for hearing against Richard Goodwin, a supplemental decree was entered and recorded in which a judgment was rendered against him for one thousand, five hundred and sixty-one dollars and twenty-seven cents, with interest at eight per cent, and costs of suit, including attorney’s fees, taxed a ninety-two dollars and ninty-five cents, and foreclosing the mortgage, and ordering special execution to issue. This cause was known as “Equity No. 579,” and will be so referred to here. Thereafter, on November 16,1889, the land was sold under special execution issued on both said decrees, for the sum of one thousand six hundred and ninety-seven dollars a,nd thirteen cents; and plain.tiff Day, as assignee of the certificate of sale, received on November 19, 1890, a sheriff’s deed. Plaintiff has owned and occupied the premises since that time, and has made valuable improvements thereon. It appears, too, that plaintiff took the assignment of the certificate of sale at the request of Richard Goodwin, and that, upon the latter’s representation that no redemption would be made, plaintiff paid-him the sum of four hundred dollars. These facts are shown by plaintiff in the case of Day against Goodwin, and it is asked that his title be quieted. The defendant appears by Richard Goodwin, as her guardian, and admits the execution of the mortgage and note. But it is alleged that said Ann Goodwin was of unsound mind at the time of the service of the original notice in No-. 579, and has been so judicially declared. This notice, it may be here said, was served by reading and giving a copy thereof to Ann Goodwin, as provided in section 2603 of the Code of 1873. A cross bill is also filed in which is set up the insanity of defendant, the ownership of the land, and a denial of the fact that any judgment was rendered in the foreclosure proceedings. It is also claimed that Day is liable for the rental value of said premises in the amount of one thousand eight hundred dollars; and the prayer is that she have judgment against him, and that her title be quieted. The lower court allowed the plaintiff the amount due on his mortgage, charged him for rents, and gave judgment for the remainder, one thousand, five hundred and forty-two dollars and forty three cents, to plaintiff, and established it as a lien on the land. It set aside the sheriff’s deed to plaintiff, and decreed title to the premises to b'e in defendant, and the real estate was then ordered sold to pay plaintiff’s lien. On motion, it was ordered that all costs, including filing fee and service of original notice, except costs of witnesses who testified to improvements, be taxed to- plaintiff. From this decree and order plaintiff appeals. To avoid confusion, we will consider these issues first, and state the facts in the case of Stevens against Goodwin later on.

4* Plaintiff, claiming title through the proceedings in the Stevens foreclosure,' seeks to quiet the same as against Ann Goodwin, who was a defendant therein. It is claimed in her behalf that the sale and' deed in that case were void, for that no judgment was ever rendered in said cause.- This must be the ground upon which the defendant can succeed, if at all, for the claim that the original notice was not properly served, and which will be spoken of more fully later, cannot be considered except upon application to set aside the judgment if one was rendered; and neither the answer nor cross bill suggests that any such relief is desired. The theory of the defense is that equity cause No. 579 is still open and pending, and that Ann Goodwin has a right to make defense therein. We may ' assume that the entry apparently copied from the judge’s docket is., so far as it pretends to be a judgment, absolutely void, and that the decree signed by Judge Conner, but never recorded, has in such condition no force or effect; but there is still another entry to be disposed of, and this is the -supplemental decree of October 10,1889, which was duly recorded and approved. This language is found in this entry: “And the court finds, after an inspection of the record, that due and legal service of notice of the pendency of this cause has been made upon said defendants, and that said defendants having failed <to- appear, and though solemnly called, came not, but made default, it is therefore ordered by the court that 'said defendants be adjudged in default.” The court further finds that “plaintiff is entitled to a foreclosure- of ©aid mortgage as prayed in the petition.” A judgment i© then given against Richard Goodwin, the land -ordered sold-, and his equity of redemption decreed- to- be barred. This entry i® entitled against Ann Goodwin, Richard Goodwin, Dautremont, and Horton. The parties were all (adjudged to be in court. The plaintiff was' asking as against all defendants a judgment of foreclosure. Reading the decree in the light of the record, -and it in terms appear® that all defendants were held to be in default, and ihe land ordered sold, though personal judgment is given only against Richard Goodwin, and his right of redemption alone is cut off. It is, a® against Ann Goodwin, certainly informal. It might not withstand a -direct attack. It may be that it was not intended to mean all that it says, but we think it must be held good, to some extent at least, as against all defendants in a proceeding that -expressly ignores or denies its existence.

5

6 There are two methods, 'either of which defendant could have adopted to secure relief ais against this judgment if it is voidable for any of the reasons she sets up. She could have instituted proceedings at law under sections 3154, 3157, and 3158, Code 1873, by asking to have the judgment vacated, or she- might have proceeded in equity. See Jackson v. Gould, 98 Iowa, 488; Larson v. Williams, 100 Iowa, 114, and cases cited. But in either such event the parities to the judgment should be made parties to the proceeding to annul it. In the case at bar the proper parties were not in court to authorize relief against the judgment, even if such relief was asked. But it is claimed by defendant, in effect, that there was no notice of the pendency of the foreclosure proceedings served upon her, and that, because of this fact, the judgment therein is absolutely void as to her, and may be ignored. The notice was in fact served by reading and giving to her a true copy, as provided by section 2603 of the Code of 1873, as already said; and, although Mrs. Goodwin had been previously adjudged insane, •she was not, when the foreclosure suit was begun, confined in an asylum, but was living with her husband; nor had she a guardian at this time. The notice was served both-upon Ann and Bichard Goodwin, who were parties defendant. The statute (section 2615, Code 1873) requires that in such cases the service on the insane person am.a.y be made upon him and upon his guardian, and if he have no guardian then upon his ’wife or the person having the care of him or with whom he lives,” etc. A strict compliance with this provision would have required the notice to Ann Goodwin to be served, not only on her, but also on her husband, although, as a matter of fact, he was present at the time, and was served with a similar notice as a joint defendant. Though the notice be irregular and insufficient, yet, if the court takes jurisdiction, the judgment is not void. De Tar v. Boone County, 34 Iowa, 488; Woodbury v. Maguire, 42 Iowa, 339; Moomey v. Mass, 22 Iowa, 380. There .are many other eases to like effect, but we need not cite them. The service 'appeal's upon the face of the record to be good. The defendant relies upon extrinsic facts to defeat it. We think it manifest on principle that in such case the showing can be made only in a direct attack on the judgment. It may be said in defendant’s behalf that the action on her part below, in the case of Stevens v. Goodwin, being “Equity No. 579,” was in the nature of a direct attack. This naturally leads to a consideration of what was done in that case.

8 After the action of Day v. Goodwin was brought, and after the discovery that the entry signed by Judge Conner bad not been recorded, defendant, on October 7, 1895, filed an answer of general denial in “No. 579.” Day moved to strike this answer from the files. There w-ais no ruling on this motion. Ou October 8, 1895, Day made a motion to be substituted as plaintiff in No. 579, and for an order nunc pro tunc requiring the clerk to1 record the Conner decree. October 12, 1895, Defendant Ann Goodwin, through her guardian, filed' a, motion for leave to answer in said cause, and attached to the motion an answer containing substantially the same facts we have been considering in Day v. Goodwin. No ruling was made on this motion. Thereafter, on October 13, 1896, the triad court entered an order fallowing Day to be substituted as plaintiff, 'but holding that “he had no right to have a nunc pro tunc order made directing the clerk to record in the records of the court the certain alleged judgment and decree as of the twentieth of February, 1889.” From this order the appeal we are considering was taken by Day. No complaint of the lower court’s action or non-action is made by Goodwin. Conceding that Ann Goodwin’s proceedings in this matter were in the nature of a direct attack, yet her right has not been passed upon by the lower court. Not having appealed, she can claim, no affirmative relief here at this time. Her motion for leave to answer still stands undisposed of in the lower court. We have, then, to consider only whether plaintiff was entitled to the nunc pro tunc order asked.

9 It is not claimed that any rights of third parties have intervened or will be affected by such order. The action of the lower court in substituting Day as plaintiff in that cause is not questioned'. The right claimed to a nunc pro tunc order is only a right to have the records show what the court in fact did in the case. The decree was prepared and -signed, by the judge-, and given to the clerk, who- filed, but failed to record it. In passing upon the right to this order, it is immaterial whether the proceedings in the ease were regular or irregular, valid or invalid. The sole ' matter to consider is, shall the failure of a mere ministerial officer to perform his duty have the clerk to falsify the .action of the court? We think the authorities sustain the right of Day to have the- -order prayed for. Fuller v. Stebbins, 49 Iowa, 376; Tracy v. Beeson, 47 Iowa, 155; Buckwalter v. Craig, 24 Iowa, 215; Shelley v. Smith, 50 Iowa, 543. It is true that the order made by the court in Equity No-. 579 was not -entered until after the decree was .rendered in-Day against Hood win, but this should not prejudice plaintiff, for his application for the relief was on file long before- the disposition of -the case last mentioned.

What we have -said makes -our conclusions- apparent. Plaintiff should have had a decree on his bill to quiet-title, the costs should) have been taxed to defendant, and plaintiff was -entitled to the order prayed for in No. 579. The action -of the lower court, in both cases- will be BEVEESED.