Bank of Horton v. Knox

• Decision Date: 17 October 1906
• Citation: 109 N.W. 201,133 Iowa 443
• Parties: BANK OF HORTON, Appellant, v. J. M. KNOX, Appellee
• Court: Iowa Supreme Court

109 N.W. 201

133 Iowa 443

BANK OF HORTON, Appellant, v. J. M. KNOX, Appellee

Supreme Court of Iowa, Des Moines

October 17, 1906

REHEARING DENIED, FRIDAY, FEBRUARY 15, 1907.

Appeal from Polk District Court.-- HON. JAMES A. HOWE, Judge.

ACTION upon a foreign judgment. The trial court dismissed the petition, with costs, and plaintiff appeals.-- Affirmed.

Affirmed.

Parrish & Dowell, for appellant.

Sullivan & Sullivan, for appellee.

OPINION

BISHOP, J.

Plaintiff is a banking corporation of the State of Kansas and the defendant is a resident of the city of Des Moines, in this State. In October, 1898, plaintiff brought an action in equity in the district court of Gage county, Neb., to foreclose a mortgage on real estate in that county given by defendant to secure a note evidencing a debt owing by him. Service of notice of such action was had by publication, and in due time a decree was entered providing for foreclosure and an order of sale. After entry of the decree, the defendant filed with the clerk of said court a request for stay of the order of sale for nine months, as authorized by the law of that State. On the expiration of the nine months an order of sale issued, and the mortgaged property was sold by the sheriff of the country for a sum less than the amount due on the indebtedness secured, with interest and costs; the amount of the deficiency being $ 506.66. The sale so made was subsequently confirmed by the court. Thereafter the plaintiff bank procured to be served personally upon the defendant in Polk county, this State, a notice that on a day fixed it would apply to said district court of Gage county for a deficiency judgment in the sum above mentioned. The defendant did not appear in response to such notice, and on April 13, 1900, proceedings were had in the Nebraska court resulting in the entry of a personal judgment against the defendant for the sum claimed. It is this judgment that is sought to be recovered upon in the instant action.

Among other matters of defense, the defendant challenged the validity of the judgment sued upon, for that the court assuming to enter the same had no jurisdiction to enter a judgment in personam. The trial court held that this defense should be sustained, and, we think, rightfully so. As this conclusion must lead to an affirmance of the judgment appealed from, we shall have no occasion to consider any of the questions arising out of the other matters of defense pleaded. That the jurisdiction of a court to enter judgment may always be inquired into is doctrine too well established to admit of question. Cuykendall v. Doe, 129 Iowa 453, 105 N.W. 698; Thompson v. Whitman, 85 U.S. 457, 18 Wall. (U.S.) 457 (21 L.Ed. 897); Knowles v. Logansport Co., 86 U.S. 58, 19 Wall. 58 (22 L.Ed. 70). Now, to authorize a judgment in personam the court must not only have jurisdiction of the subject-matter of the action, but of the person of the defendant; and this is the rule in Nebraska, as it is in this State and elsewhere. Wescott v. Archer, 12 Neb. 345 (11 N.W. 491, 11 N.W. 577); Cobbey v. Wright, 23 Neb. 250 (36 N.W. 505).

As well understood, jurisdiction of the person can only be obtained by service of notice within the State, or by a voluntary appearance. Judged by this rule, it is clear that we have no case of a judgment upon personal service, and if the judgment as entered by the Nebraska court can be sustained on any theory it must be because the filing of the request for stay or order for execution amounted to a personal appearance in the action sufficient to authorize the subsequent entry of such judgment. And this, therefore, presents the only question with which we have to deal. From the Nebraska statutes, in force at the time and introduced here in evidence, it appears that in cases of mortgage foreclosure a personal judgment is not contemplated in the first instance. If the mortgaged property does not sell for sufficient to extinguish the debt, and the debtor is properly before the court, the entry as against him of a deficiency judgment is authorized. Now, unlike the course of proceeding prevailing in this State, it is the rule of the Nebraska statute that, upon the decree for the sale of mortgaged premises being entered, the order of sale "shall be stayed for the period of nine months from and after the rendition of such decree, whenever the defendant shall within twenty days after the rendition of such decree file with the clerk a written request for the same," etc. Code Civil Procedure Neb., section 477 (b).

This is what was done in the instant case, and the precise question is: Did the filing of such request with the clerk confer jurisdiction on the court to render a deficiency judgment as upon a personal appearance to the action? Under our statute -- and we must presume that the Nebraska statute is the same -- an appearance in an action is accomplished by delivering to the plaintiff or the clerk a memorandum to that effect, or by entering an appearance on the court records, or by announcing the same in open court; and an appearance for any purpose connected with the cause will be taken to be a general appearance, and will authorize the court to proceed as though personal service of the notice of the action had been regularly and duly served. Code, section 3541. The expression "for any purpose connected with the cause," however, is not to be taken as wholly unrestricted in meaning. The appearance must have some relation to the merits of the controversy, and the purpose must be to invoke some action on the part of the court having direct bearing in some way upon the question of the judgment or decree proper to be entered. Osborn v Cloud, 21 Iowa 238. In that case, the action was at law aided by an attachment, and the service was by publication only. By the judgment the amount due plaintiff was determined, and there was...