Givens v. Campbell

20 Iowa 79

• Court: Supreme Court of Iowa
• Decided: January 30, 1865
• Status: Published

Opinion

Dillon, J.

i. equity; againstjuagexecution. I. Upon the averments in the petition, it is to be taken as true, that the petitioner had no notice of the action before the justice. If so, the judg-' ment of the justice was void, not simply voidable, ]sf0t only does the plaintiff allege t&is, but he shows that Gardner & Son have no equity, as he is not legally liable to them upon his indorsement of the note. He has, therefore, upon well established principles of equity, a right to prevent his property from being seized and sold to pay an unfounded demand and a void judgment. Piggot v. Addicks, 3 G. Greene, 427; Kriechbaum v. Bridges, 1 Iowa, 4; Story’s Eq., §§ 895, 887, et seq.; Ballinger v. Tarbell, 16 Iowa, 491, 493 (case of defective service).

2. eckoujudginent: staltrued.on' II. Upon another ground, the plaintiff was entitled to enjoin the execution. It was issued by tbe justice more than five years after the judgment. This the justice could not do, provided section 8911 of the Revision is unrepealed.

Upon a consideration of all tbe sections cited by tbe appellant, viz.: §§ 8911, 8246, 3859, 3909, 3910, and §§ 1886 and 1887 of the Code of 1851, we are of the opinion, and so hold, that an execution from a justice’s judgment (not docketed in the clerk’s office), cannot be issued by tbe justice after tbe lapse of five years from tbe entry of the judgment. In other words, no part of § 3911 of the Revision is repealed by § 3246, or the other sections above referred to.

' It is not necessary to notice tbe question relating to tbe alleged excessive levy.

Affirmed.