Squires v. Jeffrey

70 N.W. 730, 101 Iowa 676

• Court: Supreme Court of Iowa
• Decided: April 10, 1897
• Status: Published

Opinion

Ladd, J.

Two days After the decree was entered, the plaintiff filed an amendment to his petition. This was by leave of court, as the amendment so recites, and the court afterwards refused to strike it from the files. There is no showing to the contrary. The appellant asks that it be stricken from the abstract, because not a part of the record. An amendment maybe allowed after judgment is rendered. O'Connell v. Cotter, 44 Iowa, 48. Whether the court should permit an amendment at such a time is largely within its discretion; and, if it'does so, such amendment becomes a part of the record. As this motion only questions that fact, it must be overruled.

II. The plaintiff and Cole testify they had no notice of the beginning of the action wherein judgment was rendered, and knew nothing of it until 1895. No effort was made to collect the judgment for more than twenty-one years, although during much of that time plaintiff had property subject to execution and levy in the county where judgment rendered. This is, in part, explained by the removal and subsequent death of the attorney who is believed to- have procured it. Madden in his deposition, says he knew he had judgments in Carroll county, but was not aware of this one until about two years before the trial. The justice had no recollection of the return of the service, but knew, of course, that he only rendered valid judgments. The original notice is supposed to have been burned. On the showing made, we think the conclusion that no-notice was served is amply supported by the evidence.

III. The plaintiff and Cole also state they were never indebted to Madden. If they were so indebted, Madden has forgotten it. In any event, the statute of limitations has run against the claim, if any he had. Jamison v. Weaver, 84 Iowa, 611 (51 N. W. Rep. 65). The decree was right, and must be affirmed.