King v. Nelson

94 N.W. 1095, 120 Iowa 606

• Court: Supreme Court of Iowa
• Decided: May 23, 1903
• Status: Published

Opinion

SheRwin, J.

It is contended that the bank or its assignee had no right, under the mortgage or under the •decree in the foreclosure case, to sell any part of the property in Louisa county. The mortgage may fairly and naturally be construed to provide for the sale of the property in Polk county only in the event of its foreclosure by the mortgagee by notice and sale, without the intervention •of the courts. But, however this may be, the jurisdiction of the district court in the foreclosure proceedings is unquestioned, and its decree therein, though unauthorized a. foreclosure ■ lateral at-1" tack' ^y the terms of the contract. between the parties, must stand as an adjudication bind-ing upon all parties until set aside or modified by direct proceedings. It cannot be collaterally assailed. Finch v. Hollinger, 47 Iowa, 173; Moore v. Jeffers, 53 Iowa, 202.

The argument that the decree authorizing an execution to issue to Louisa county was of no force, because of section 3955 of the Code, is not sound. That section reiateg-2. spf.ciat, exeance°of.ISSU only to general executions. In the foreclos-úre case against the plaintiff, it was decreed' that the mortgaged property be first exhausted for the' satisfaction of his debt; and this was in strict accord with, the terms of section 3772 of the Code, which provides that, “where any other than a general execution of the common form is required, the party must state in his pleading the facts entitling him thereto, and the judgment may be entered in accordance with the finding of the court or jury thereon.” Surely the pleading in the .foreclosure of a mortgage covering specific personal property would state the facts entitling the plaintiff to a special execution under this statute, and, if it did, the plaintiff therein had the right to ask, and it was the duty of .the court to decree, that a special execution issue for any part of the property, no matter where it was located within the state. This is clearly not a case founded upon a malicious prosecution, and the authorities cited by the appellant dealing with such cases are not in point.

The averments of the petition relative to the statements of counsel in the foreclosure case, by which the plaintiff herein claims to have been misled, were properly ¿leadings: allegation of fraud. stricken; They could have no bearing upon ‘ , . . , . the case, except to show fraud m procuring that judgment, and that question could not be investigated in this case. The motion for a more specific statement was, in our judgment, sufficiently specific. It seems to meet the exact requirements of the statute.

The demurrer and the motions were rightly sustained, and the judgment is apeiiimed.

Bishop, O. J., taking no park