Bowman v. Besley

• Decision Date: 24 October 1903
• Citation: 97 N.W. 60,122 Iowa 42
• Parties: CHARLES BOWMAN, Appellant, v. L. C. BESLEY, Appellee
• Court: Iowa Supreme Court

97 N.W. 60

122 Iowa 42

CHARLES BOWMAN, Appellant, v. L. C. BESLEY, Appellee

Supreme Court of Iowa, Des Moines

October 24, 1903

Appeal from Superior Court of Council Bluffs.--HON. E. E AYLESWORTH, Judge.

ACTION in equity for the foreclosure of a real estate mortgage. The makers of the mortgage, W. M. Owens and wife, were made parties defendant, and a default judgment was rendered against them. Personal judgment is asked against the defendant Besley, a subsequent purchaser of the property from Owens; it being alleged that in the deed to him he assumed and agreed to pay the mortgage debt. Besley answered, denying that in fact he had assumed and agreed to pay the mortgage debt. He also filed a cross-bill in which it is alleged that the provision in the deed to him relating to the assumption of the mortgage debt was inserted by mistake, and that said deed does not express the contract between the parties. Accordingly a reformation of said deed is prayed for. The decree was in favor of Besley, and plaintiff appeals.-- Reversed.

REVERSED.

Flickinger Bros. and John J. Hess for appellant.

George W. Hewitt for appellee.

OPINION

BISHOP, C. J.

Appellee makes the point that the court has no jurisdiction to determine this appeal, for that the record does not show that notice of appeal was served upon the defendants Owens and wife. Said defendants did not appear or plead either to the petition of plaintiff, or to the cross-petition of defendant Besley. The action was tried upon the cross-petition and the answer of plaintiff thereto. The decree entered was in favor of Besley, and the effect thereof was a finding that he was entitled to reformation as against the defendants Owens, and accordingly that plaintiff was not entitled to recover as against him. The appeal was taken by plaintiff, and his complaint has sole reference to that portion of the decree which denies judgment in his favor against Besley. By section 4111 of the Code, it is provided that "a part of several co-parties may appeal; but in such case they must serve notice of the appeal upon those not joining therein," etc. We have held in a number of instances that a failure to serve notice of appeal upon co-parties is not jurisdictional. The court cannot, however, in such case consider any question, the determination of which will work prejudice to the parties upon whom notice is not served. Kellogg v. Colby, 83 Iowa 513, 49 N.W. 1001; Ward v. Walker, 111 Iowa 611, 82 N.W. 1028; Clayton v. Sievertsen, 115 Iowa 687, 87 N.W. 412. In this case a reversal of the decree, as sought by appellant could work no prejudice to the defendants Owens. On the contrary, such a result would be, to all intents and purposes, in their favor. Laprell v. Jarosh, 83 Iowa 753, 49 N.W. 1021, is not in conflict with the view here expressed. In effect, that was an action for partition of real estate, and it was expressly found that the interests of appellant could not be adjudicated without affecting the interests of the defendants upon whom notice of appeal had not been served. The case went off by dismissal on motion, and there was no resistance. We must infere, and especially in view of our other holdings referred to, that a determination of the appeal would have involved matters in some degree or to some extent antagonistic to the interests of the defendants not made parties to the appeal, and respecting which matters they were entitled to be heard. We conclude, therefore, that the point made by appellee in this case is without merit. Appellee also questions the right of appellant to prosecute the appeal upon two other minor grounds. We have examined each thereof, and find nothing of merit, or requiring an extended discussion at our hands.

The sole contention of appellant is that the decree, in so far as it finds that the assumption clause in the deed to Besley was a mistake, is not warranted by the record. In brief, these are the facts: Upon its face the deed recites a consideration of $ 1,100. Besley testifies that he traded some personal property, valued...