Scovil v. Fisher

41 N.W. 583, 77 Iowa 97, 1889 Iowa Sup. LEXIS 123

• Court: Supreme Court of Iowa
• Decided: January 31, 1889
• Status: Published

Opinion

Beck, J.

1. jurisdiction: appearanee evidence: I. The judgment which is the foundation of plaintiff’s claim was rendered in an action to íoreclose a mortgage, brought by one Richard against Price and wife, the mortgagors, the plaintiff in this suit, Scovil, who held a note secured by the mortgage, and others, who claimed some interest in the real estate covered by the mortgage. Scovil hied a cross-bill, asking a foreclosure of the mortgage, and a judgment on his note. The notice to the mortgagor Price of the filing of the cross-bill was given by publication. The decree declares that Price appeared neither in person nor by an attorney, but a personal judgment is rendered against him for the amount due on the note. This is the judgment filed as the foundation of plaintiff’s claim.

II. It is not, and cannot be, claimed that the judgment in question is in personam, and bound Price or his property other than as a judgment in rem. But it is insisted that the evidence shows that Price appeared in the action by attorney, and therefore he should be held bound personally by the judgment. We think that the evidence fails to overcome the decree which declares that the court found that defendant Price appeared neither in person nor by attorney, if, indeed, it is not conclusive, and may be contradicted by evidence dehors the record. The record at a prior term recites that attorneys entered their appearance for Price. But it is not shown that the appearance was to the cross-bill. The appearance, doubtless, was to the original action, and not to the cross-bill. This conclusion is supported by the fact that the attorneys entering their appearance for Price were in fact, as is shown by the decree and the papers in the case, the attorneys of Scovil, the plaintiff in this case. It is not to be jjresumed that respectable attorneys would appear both for Scovil and Price, the plaintiff and defendant in the cross-bill, or that the court would permit such a thing.

III. One of the attorneys testifies that his firm did appear in the case for the defendants, — Price among the number. He does not testify that he appeared to the cross-bill for Price. He could have properly appeared in the case for Price in resistance to the original petition, but he could not have appeared lawfully in resistance to the cross-bill. The law will presume he did not appear to the cross-bill for Price. The record will thus be consistent with itself, and all parts of it will stand, and it will appear that the attorneys did not violate their professional duty by appearing both for the plaintiffs and defendant in the cross-bill.

2 claims agahst estates: denial presumed. IY. Counsel for plaintiff insist that, conceding the judgment is in rem, the findings shown therein are prima-facie evidence of the amount due plaintiff, in view of the fact that there is no % . i-»i -r-* denial ox the original debt. But as there . was no written answer to the claim, in accord with, the practice in such cases, wherein no formal pleadings are required, the resistance of the defendant put in issue all matters upon which a defense to the claim could be based, usually set up by a general denial. It is not to be presumed that defendant admitted plaintiff’s right to recover, or the validity of his claim. The claim was based on the judgment, which is invalid, and not binding asa judgment in personam. The judgment, therefore, does not support plaintiff’s right to recover in this action; and even if counsel’s position, that it is prima-facie evidence of the amount of the the claim, be correct, — which we do not hold,m-plaintiff cannot recover, for the reason that the judgment and other evidence does not establish his cause of action. In our opinion the judgment of the district court ought to be Affirmed.