Arnold v. Hawley

• Decision Date: 22 October 1885
• Citation: 67 Iowa 313,25 N.W. 259
• Parties: ARNOLD v. HAWLEY.
• Court: Iowa Supreme Court

67 Iowa 313

25 N.W. 259

ARNOLD

v.HAWLEY.

Supreme Court of Iowa.

Filed October 22, 1885.

Appeal from Webster district court.

One Schofield obtained a judgment, in a law action against the plaintiff, which is the property of the defendant. This is an action in equity to set aside and cancel such judgment. A demurrer to the petition was overruled, and the defendant appeals.Theo. Hawley, pro se.

J. F. Duncombe, for appellee, C. Arnold.

SEEVERS, J.

1. It is alleged in the petition that no notice of the pendency of the action in which the judgment was rendered was ever served on the plaintiff, and that the court had no jurisdiction or power to render it, but that the same constitutes an apparent lien on the plaintiff's property, and therefore he asked to have it set aside.

There was a demurrer to the petition on two grounds; the first being that the court had no jurisdiction or power to grant the relief asked. This is based on the thought that as the judgment was rendered in the circuit court, the plaintiff's remedy is confined to that court. Both the district and circuit courts are courts of general jurisdiction, and if the judgment in question was voidable only we may concede that the plaintiff, in order to have it set aside, should have proceeded in the court in which it was rendered. But the demurrer admits the allegations of the petition which are well pleaded to be true. This being so, the judgment in question is absolutely void, and yet is an apparent lien on the plaintiff's property. The plaintiff, therefore, we think, may proceed in any court having equitable jurisdiction, and have such judgment set aside.

The judgment was rendered in June, 1881, and the plaintiff obtained knowledge thereof in December, 1883. The time within which the plaintiff might proceed under chapter 1 of title 19 of the Code in the circuit court, in the manner therein provided, had expired when the plaintiff first obtained knowledge of such judgment. Code, §§ 3156, 3157. It is said that an action is regarded as still pending, although judgment has been recovered therein, as long as such judgment remains unsatisfied, therefore the relief asked should have been applied for in the court in which the judgment was rendered. Wegman v. Childs, 41 N. Y. 159;Mann v. Blount, 65 N. C. 99. This rule, which for the purposes of this case may be conceded, applies where there is a valid judgment, and an order is asked in aid of the enforcement of the judgment or for the purpose of granting relief against it to which the defendant may be entitled. But it has no application, we think, to a case where the judgment is in fact void but yet it is an apparent lien. Gilman v. Donovan, 59 Iowa, 76, S. C. 12 N. W. Rep. 779, has no application to the case at bar. A new trial was sought in that case by petition in the court where the judgment was obtained, and it was held that a change of the place of trial in such case could not be had. This proceeding cannot be classed as a bill of review, as counsel claim, but it is an original action to set aside or cancel a judgment at law. A bill of review under the old practice could only be filed to correct errors in a decree in equity, and, of course, it should be brought in the court in which the decree was entered. The first ground of demurrer was...