Wright v. Parks

10 Iowa 342

• Court: Supreme Court of Iowa
• Decided: April 7, 1860
• Status: Published

Opinion

BaldwiN, J.

This is a proceeding by scire facias to revive a judgment for the possession of certain land. The original judgment was rendered in favor of J. L. Estes. Plaintiff in his petition claims to have purchased the land of Estes, and by such purchase became the legal owner, and entitled to the possession thereof.

The defendant demurred to the petition, and assigned as cause of demurrer, that the petition did not allege that the judgment had been assigned by Estes to plaintiff, and also that the petition had not been properly verified. The appellant in his argument, also urges before this court that this petition is defective, for the reason that no copy of the judgment sought to be revived is annexed thereto. This point is not stated as a cause of demurrer, and is not properly before this court.

We do not consider that it was necessary for the plaintiff to have become the assignee of the judgment upon the record, to entitle him to bring this proceeding. He became the owner of the land and had the right to the possession of the same by virtue of Ms purchase from Estes; he had purchased all of Estes’ rights therein ; and Estes by-such sale ceased to be the real party in interest in this judgment. Plaintiff had by purchase the legal title and the equitable right to use .the judgment to recover this land, and we conclude is a proper party to this suit. 6 Iowa 187.

It is objected that the petition is not sworn to by plaintiff, or some one who shows himself authorized to state on oath that the judgment was not satisfied. The judgment is for the possession of the land. It is averred in the petition that the defendant was in possession of the same, and this is not denied but is admitted by the demurrer. The party making the affidavit could have had ample means of knowing the judgment was not satisfied. But it is admitted that the party making the affidavit was an attorney for plaintiff. Section 2177 of the Code also provides that this affidavit may be' made by an agent or an attorney as well as by the plaintiff.

Judgment affirmed.