Kellogg v. Window

69 N.W. 875, 100 Iowa 552

• Court: Supreme Court of Iowa
• Decided: January 20, 1897
• Status: Published

Opinion

Granger, J.

It will be seen that the only question we have to consider is, was there a valid judgment in the other suit against E. F. Kellogg? E. E. Kellogg is the wife of her co-plaintiff, and it will be remembered that she appeared in the other suit, filed an answer, and then withdrew it, and permitted judgment to be entered against her. For the purpose of the case, the judgment as to her husband will be treated as void. It is urged as an outrage on justice, thatE. F. Kellogg should be required to pay a judgment, when her co-defendant, who has a complete defense, was not served with notice. The claim might be true, if she herself were not in fault for the position she is in. She was a joint maker of the notes on which judgment was entered. She was in court, with the privilege of making the defense that her co-defendant could have made. By her action in withdrawing her answer, she confessed her liability on the notes. It is her fault, rather than that of the law, that she is now a judgment debtor. In a sense, she is a judgment debtor on her own confession. Appellant cites a common law rule that actions must be brought against all joint obligors on a contract, or note. It is admitted that Code section 2550, so changes the common law rule as to permit an action against any one of joint obligor; but it is said that it does not permit a judgment to be entered against a joint obligers who has not been served, and as to whom the court has not jurisdiction. That is true, but it has no other effect than that the judgment is void as to such party. The entry of a void judgment as to 0. M. Kellogg did not change the situation as to E. F. Kellogg. No objection is made as to tbe manner of presenting tbe question, and the judgment must stand affirmed.