Brooks v. Owen
| Decision Date | 10 March 1925 |
| Docket Number | 35759 |
| Parties | J. L. BROOKS, Executor, Appellee, v. W. H. OWEN et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 15, 1925.
Appeal from Wayne District Court.--HOMER A. FULLER, Judge.
PROCEEDINGS in garnishment upon execution. The opinion states the facts. From judgments against the garnishees, the latter and certain interveners appeal.
Affirmed.
H. B Bracewell and C. H. Elgin, for appellants.
Poston & Murrow and C. W. Steele, for appellee.
This controversy arises out of the effort to collect a judgment purporting to be against certain lodges of the Masonic Order at Seymour, known as Myrtle Lodge No. 355 and Cryptic Chapter No. 34, by the garnishment of supposed debtors to the judgment defendants. The trustees of the lodges intervened, and they and the garnishees appealed from the judgments against the latter for the various amounts shown by the answers of the garnishees to be owed by them, or in their hands belonging to the judgment defendants.
The principal question raised by the garnishees and interveners relates to the validity of the original judgment, and the capacity of the judgment defendants to be sued. The answer of plaintiff to the petitions of intervention alleged that the judgment defendants were de-facto corporations, and that they had held themselves out to be legal entities, capable of being sued, and had suffered the judgment to be obtained against them, and that they had appeared in court and carried on litigation as legal entities, and that the interveners were estopped to deny their capacity to be sued, or the validity of plaintiff's judgment.
It appears to have been discovered on the trial that, in the entry of the original judgment upon the court records, the amount of the judgment was not stated, and that a blank in the record for the amount was not filled. Thereupon the plaintiff moved for an order for the clerk to enter nunc pro tunc the amount of the judgment in the judgment entry. This was granted. The amount of the judgment was shown on the appearance or judgment docket, and this was introduced in evidence, over appellants' objection; and the ruling is assigned as error. We think the entry in the appearance docket was admissible, if for no other purpose, to establish, upon the motion for the nunc pro tunc order, the amount for which the judgment was originally intended by the court to be rendered. Fowler v. Doyle, 16 Iowa 534; Giddings v. Giddings, 70 Iowa 486, 30 N.W. 869; Redhead, Norton, Lathrop & Co. v. Baker, 86 Iowa 251, 53 N.W. 114; Risser & Reitz v. Martin & Phillips, 86 Iowa 392, 53 N.W. 270. Moreover, with the judgment entry so corrected in evidence, no possible prejudice resulted from the admission of the entry in the appearance or judgment docket.
Error is assigned on the admission in evidence of the execution for the reason that there was no legal entry of judgment until the entry of the nunc pro tunc order. Upon the entry of that order, the judgment was the same between the parties as if originally so entered; and the order operated to validate the execution that had theretofore been issued. Doughty v. Meek, 105 Iowa 16, 74 N.W. 744; Mahaska County v. Bennett, 150 Iowa 216, 129 N.W. 838.
It is contended that there was error in admitting in evidence the pleadings and judgments in certain other actions against the judgment defendants. These proceedings were all prior to the date of the plaintiff's judgment. We think they were admissible upon the plaintiff's plea that the judgment defendants held themselves out as having the capacity to be sued. They had not only permitted judgment by default to be taken against them, but in one case had appeared and answered, proceeded to trial, and prosecuted an appeal, without raising any question of their capacity to be sued. But, in any event, the admission of this evidence was without prejudice, in the view we take of the case.
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