Mosher v. McDonald & Co.

102 N.W. 837, 128 Iowa 68

• Court: Supreme Court of Iowa
• Decided: March 15, 1905
• Status: Published

Opinion

McClain, J.

-In 1875 a judgment was rendered by-default, in tbe district court of Polk county, in favor of McDonald & Co. against Lemuel Mosber (or L. L. Mosber, as be is named in these proceedings), on a promissory note for $300, with interest and costs. In 1892 . defendant France made some effort to induce Mosher to pay this judgment, but, failing, he caused execution to issue, claiming to be the owner under assignment from the trustees of McDonald & Co., who had become insolvent. In 1893 L. L. Mosher brought action against McDonald & Co., by publication, to restrain the enforcement of the judgment, on the ground that no service was had on him of the original notice in the action in which the judgment was rendered. The subsequent history of this proceeding by L. L. Mosher against McDonald & Co. is complicated, and there were collateral proceedings instituted in connection with the continuing attempts of France to enforce payment of the judgment, which need not be explained in detail. But in 1901 Maud Mosher, wife of L. L. Mosher, joined him with her in an action against McDonald & Co. and many other defendants, among them C. F. France, to restrain a sheriffs sale, under the original judgment, of certain real estate as that of her husband, which in fact belonged to her. With this action a continuation in some form of the proceedings in the prior injunction suit of L. L. Mosher against McDonald & Co. was consolidated, and by the decree appealed from, which was rendered in this consolidated action, the original judgment was canceled, set aside, and adjudged void, and further proceedings therein perpetually enjoined. Several questions of fact were involved in the issues tried, but, in the view we take of the case, only two of these need be considered.

1. Jurisdiction presumption as to service I. Plaintiff sought to overcome the presumption in favor of the.jurisdiction of the court rendering the original judgment against Lemuel Mosher by evidence which tended to show that he was never served with notice of the action, but as against the recital of • personal notice in the judgment itself and the sheriff’s return, which was introduced in evidence, showing, such service, we think the evidence introduced was not sufficient to make out a case1 for plaintiffs. Tbe return purported to be made for the sheriff by one John Burkett, deputy, and the sheriff testified that Burkett was his deputy at that time, that the return was filled out in his (the sheriff’s) own handwriting, and that the signature was in the handwriting of Burkett. The presumption in favor of the recital, of the judgment record, and regularity of official action are not overcome, in our judgment, by the parol evidence of Mosher and others that he was absent from the State at the time the return shows service to have been made. Ketchum v. White, 72 Iowa, 193; Wyland v. Frost, 75 Iowa, 209; Squires v. Jeffrey, 101 Iowa, 676; Farnsley v. Stillwell, 107 Iowa, 631; Shehan v. Stuart, 117 Iowa, 207.

The fact that no official record was introduced showing Bfurkett’s appointment is not controlling. He was, at least, a de facto officer, an'd, that being shown, the presumption of regularity attaches with reference to his acts.

2.Judgments: assignment-evidence. II. Evidence was introduced for plaintiffs tending to show that, when France first sought to induce Mosher to pay this judgment, an arrangement Was made by which the judgment was by written assignment transferred to Mrs. Mosher for a consideration paid by her. It would not be profitable to go into the details of this evidence. It is sufficient to say that the testimony of Mosher and his wife that such an assignment was made is' corroborated with more or less definiteness by the testimony of other witnesses who were present, and by circumstances which are established. The denial by France that there was any such transfer is supported by his testimony alone. It must be conceded that the transaction, as testified to by the Moshers, was peculiar, and that it is a subject of unfavorable comment that the assignment was never set up or relied upon, as against the repeated efforts by France to enforce the judgment, until the evidence of such assignment was introduced on the trial of the present case. But Mosher wás at all times protesting that the judgment was void from the beginning, and Mrs. Mosher was not a party to any of the proceedings until she joined her husband with her in the last suit, in which it was sufficiently alleged, not only that the judgment was void, but also, as an independent fact, that France had no interest in it. We conclude, on the whole, that an assignment of the judgment to Mrs. Mosher was substantiated by a decided preponderance of the evidence.

3. Judgments: action to restrains enforcement proof. ’ III. Counsel for appellant raise the point for the first time in oral argument in this court that the pleadings for the plaintiffs do not show a cause of action, in that it is nowhere alleged that plaintiffs have any valid defense to the judgment; but it will hardly be claimed that if the judgment was rendered without service of notice, and was therefore absolutely void, it is incumbent upon the plaintiffs, seeking to restrain its enforcement, to allege and prove a valid defense to the cause of action on.which he predicates his right to proceed; and having found that, as a-matter of fact, the plaintiff Maud Mosher is the owner of such judgment by assignment, this objection need not be further considered.

IV. A motion of appellees has been submitted with the case, asking affirmance on the ground that the record was not properly preserved in the lower court, and we think the motion well taken, but have preferred to base affirmance on the merits. Appellees also, ask by motion an affirmance on the ground that the judgment has become barred by the statute of limitations, but it appears that, within the period during which action might be brought on the judgment, defendant France in a cross-petition asked that the judgment be revived, and thus avoided the completion of the statutory bar.

We find that the decree of - the lower court is right, and it is affirmed.