Blair v. Wolf

• Decision Date: 28 June 1887
• Citation: 33 N.W. 669,72 Iowa 246
• Parties: BLAIR AND OTHERS v. WOLF AND ANOTHER.
• Court: Iowa Supreme Court

72 Iowa 246

33 N.W. 669

BLAIR AND OTHERS

v.WOLF AND ANOTHER.

Supreme Court of Iowa.

June 28, 1887.

Appeal from circuit court, Wapello county.

Action in equity to subject certain real estate, the legal title to which is in defendant M. L. Wolf, but who holds the same, as is alleged, in trust for her co-defendant, John S. Wolf, to a judgment held by plaintiffs against said John S. Wolf. The circuit court sustained a demurrer to one count of the answer, and defendants appealed.Chambers, McElroy & Carver, for appellants.

H. B. Hendershott, for appellees.

REED, J.

The judgment which plaintiffs seek to enforce was rendered in 1873 against the St. Louis & Cedar Rapids Railroad Company and John S. Wolf jointly. It is a money judgment for $5,836.50, and it established and foreclosed a mechanic's lien against the road-bed of a railway belonging to the railroad company. The person in whose favor it was rendered was a subcontractor under Wolf, and the demand upon which the judgment was rendered was for work done in the construction of the railway. The portion of the answer demurred to alleges that the judgment is null and void, for the reason that the original notice, which was served on Wolf in the action, did not inform him that a personal judgment was demanded against him, but advised him only that a mechanic's lien was sought to be foreclosed against the property of the other defendant in the suit, and that he made no appearance or defense to the demand, being led by the notice to believe that no personal judgment would be claimed against him; also that he was not indebted or liable to the plaintiff in the action in any amount, and that he had no knowledge or information that a money judgment had been rendered against him until this action was commenced, which was in 1886. The petition in the action in which the judgment was rendered is set out in the answer as an exhibit. It was alleged therein that the plaintiff in the action had performed certain work in the construction of said road-bed under a contract with Wolf, who was the principal contractor; and it prayed for judgment against him for the amount alleged to be due therefor, and for the foreclosure of a mechanic's lien on the property.

Two questions arise in the case: (1) Whether the judgment is void for want of jurisdiction in the court rendering it; and (2) whether the action of the plaintiff in taking a money judgment against Wolf upon an original notice,which notified him only that a foreclosure of the mechanic's lien was demanded, was a fraud upon him which will avoid the judgment.

1. The Revision of 1860 was in force when the notice was served, and the judgment rendered. Section 2812 provided that the notice must inform the defendant of the name of the plaintiff, and the...