Mayfield v. Bennett

48 Iowa 194

• Court: Supreme Court of Iowa
• Decided: April 17, 1878
• Status: Published

Opinion

Rothrock, Ch. J.

I. We have not set out the affidavits in support of, and against the motion to correct the judgment and quasli the execution, because we think the question pre-' sented must be determined upon the record of the ¡judg-' ment, and upon that alone.

1judgement must be record That part of the motion which asked a correction of the judgment by an alteration of the record entry was properly overruled, but, in our opinion, that part which prayed for an order recalling the execution and releasing the levy, because of what was apparent of record in the action, should have been sustained.

The judgment in controversy is not a personal judgment when examined in connection with the whole record in the action.

The court adjudged “that service of notice had been made upon said defendant. ” This adjudication is certainly conclusive.

It is conclusive that service, -was had in some manner provided by law. The usual method is by personal service, and in the absence of any record showing service by publication, no doubt such a presumption would obtain, but the papers in this case show that the service' was by publication, and the adjudication must be understood to be in harmony with the whole record in the case. It would be a most violent and unwarrantable presumption to hold that the court found the defendant was personally served in face of the fact that the affidavit that the defendant’s residence was unknown, and could not with reasonable diligence be ascertained, and the proof of publication with the original notice attached, were made and filed on the very day the judgment was entered. The judgment entry must be construed in the light of the entire record. Fowler v. Doyle, 16 Iowa, 534. “No presumptions in support of the judgment are to be allowed in opposition to any statement contained in the record. If an act be stated in the roll as having been done in a specified manner, no presumption arises that at some future time the act was' done in a better or more efficient manner. If it appear that, the process was served in a particular mode, no other on different service can be presumed.” Freeman on Judgments, § 125, and authorities there cited.

II. The judgment being in rein it had no binding force only as against the attached property. Upon such judgment, the property of the defendant, other than that which was attached, cannot be sold, nor does it operate as a lien thereon. Banta v. Wood, 32 Iowa, 469.

2áppéaramsCe 0l" ment.juds" III. It is urged by counsel for appellee that by filing the petition to have the judgment set aside, and afterward filing a motion to change the venue, the defendant appeared to the merits, conferred jurisdiction, and cured defects, if any, in the judgment.

There were no defects in the judgment to be cured. It was a judgment in rein, and had no other force or effect. The appearance of the defendant, by filing a petition to vacate it, does not, in the absence of any action upon his petition, give the judgment more force, or make it different from what it was before. If it was in rein only, it so remained after the petition to set it aside was dismissed. We have found nothing in the authorities cited by counsel for appellee inconsistent with these views.

We conclude that the court below should have ordered the property levied upon to be released, and the general execution returned.

Reversed.