Eastman v. Moore

14 Iowa 586

• Court: Supreme Court of Iowa
• Decided: April 16, 1863
• Status: Published

Opinion

Lowe, J.

At the April Term, 1856, of the District Court of Hardin County, Esther Ellsworth recovered a judgment of one thousand dollars against one Richard Moore, for seduction. She had commenced her suit in October before, at which time the said defendant was residing on the lands that are now the subject of this controversy. Soon afterward he left the state and became a non-resident, whereupon, in January, 1856, the said Esther, to secure the judgment she might obtain, attached said lands. This attachment, by order of the court, upon motion, was quashed, at the same Term the judgment aforesaid was rendered; but said order was afterwards reversed by the judgment of the Supreme Court, upon appeal. In March, 1856, "W. E. Moore filed for record in Hardin county, a deed of said land, purporting to have been executed by Richard Moore, to him, in Ohio, on the 19th of November, 1855.

Under the judgment aforesaid, the land.was sold in March, 1858, at sheriff’s sale, and purchased by the plaintiff in this suit, to whom a-sheriff’s deed was- made in one year thereafter, the property not being redeemed. Soon thereafter the plaintiff, Eastman, filed his petition in chancery to quiet his title, and to have the deed of conveyance aforesaid set aside as a cloud upon his title, alleging that the same was fraudulent and without consideration. The defendants not appearing, were defaulted and the prayer of petition granted. More than three years thereafter, to wit: in September, 1862, the defendants filed a petition to -have the decree last aforesaid opened, and for permission to defend, claiming to have a meritorious defense, and that they had never been legally notified of the pendency of said suit, and that the same had only come to their knowledge within the last year. The prayer of this petition was granted at the succeeding Term, the plaintiff, Eastman, not appearing or resisting, but he appeals from the order of tbe court, insisting, first, that it was made without any proper jurisdiction of tbe court, as no legal or sufficient notice of tbe application bad been served upon bim; and tbis is tbe first, and indeed tbe important question, for us to decide, as tbe record now stands before us.

“To the above named plaintiff, E. W. Eastman: You will please take notice that tbis notice is founded on tbe petition of tbe said defendants, now on file in said cause, a ■copy of wbicb you are herewith served, and also on the papers and proceedings in said cause as appears of record, and that tbis motion will be brought Qn for argument at tbe next Term of the District Court, to be holden at the court bouse in Eldora, Hardin county, on the sixth day of October, at 10 o’clock in the forenoon of said day, being the first day of said October Term, or as soon thereafter as causes set can be beard. Yours, &c.,

L. Chapman,

Sept. 18th, 1862. Attorney for defendants.”

Upon wbicb was a return as follows:

“ Rec’d tbis 22d day of Sept., 1862, and return the same served on E. W. Eastman, att’y, by reading tbe said notice to said Eastman, in Eldora, Hardin county, Iowa, on tbe 22d day of Sept., 1862: also delivered a copy of notice and copy of petition to said Eastman at tbe same time and place. Fees, 60. J. Gr. Yerick,

Sheriff, Hardin C.o., Iowa.”

It will be observed that the foregoing notice states no case, mentions the names of no parties in any case, and standing by itself, is wholly insufficient from pure vagueness ; but it is claimed that its defect in this respect is adequately remedied, perhaps by a delivery of a copy of a petition at the time the notice was served. The officer, in his return, does state that be delivered to Eastman a copy of notice and copy of petition. Now, if a defective notice can be patched up in this way, it should at least appear affirmatively in the return of tbe officer, that the petition delivered was really a copy of the one filed in this case. Such, however, does not appear in the return, and the same is only a matter of conjecture, which would be an unsafe rule to adopt in determining questions of jurisdiction.

With regard to the other questions raised and discussed by counsel, it does not seem proper that we should pass upon them until the parties are properly before the court, and the order of the court below must be reversed and remanded for revision.

Reversed.