Bros v. Waitman

• Decision Date: 18 June 1881
• Citation: 9 N.W. 339,56 Iowa 443
• Parties: TRAER BROTHERS v. WAITMAN AND OTHERS.
• Court: Iowa Supreme Court

56 Iowa 443

9 N.W. 339

TRAER BROTHERS

v.WAITMAN AND OTHERS.

Supreme Court of Iowa.

Filed June 18, 1881.

Appeal from Benton circuit court.

Action in chancery to restrain defendants from taking and removing a a portion of a crop of corn raised upon lands, the title of which plaintiffs allege they acquired by sale upon execution. The cause was submitted to the circuit court upon an agreed statement of facts, and plaintiffs' petition was dismissed. They appeal to this court. The facts of the case appear in the opinion.J. C. Traer and W. C. Cornell, for appellants.

J. D. Nichols, for appellee.

BECK, J.

1. The plaintiffs allege in the petition that they purchased certain lands upon an execution issued upon a decree in their favor against defendants, which directed the property to be sold without the right of redemption. The decree was entered in an action in chancery, brought by plaintiffs, wherein it was charged in the petitions that plaintiffs and others had recovered certain judgments against one of the defendants who had fraudulently conveyed the property to the other defendant to defeat the collection of these judgments. The defendants in that action are defendants in this. It is shown in the petition that plaintiffs have received a sheriff's deed, the sale having been made without redemption, in pursuance of the decree; that the land is cultivated by a tenant, and a part of the crop of corn is due from him as rent, and is now ready to be gathered, and that defendants are endeavoring to take and remove the rent corn, which plaintiffs claim belong to them. It is shown that defendants are insolvent. An injunction restraining defendants from taking the corn is prayed for in this petition, and general relief is asked.

The answer, among other matters, alleges that the action in which the decree was rendered, under which plaintiffs claim to have acquired title to the land, was tried April 5, 1879, when the judge of the court made in his calendar an entry as follows: “Judgment and decree is prayed for in petition, and petition of intervention, at defendants' costs. Defendants except;” that after the adjournment of court plaintiffs prepared the decree, inserting therein that the land should be sold without redemption, and presented it to the judge in vacation, who signed it seven days after the adjournment of the court, and that the decree has not been approved by the court. The agreed statement of facts shows that the decree was, in due time after it was signed by the judge, entered of record. These facts, with others alleged in the answer above set out, which are established by the agreed statement of facts, present the objection raised by defendants to the validity of the decree, the controlling point in the case.

2. Counsel for defendants insist that the entry made by the judge in his calendar is to be regarded as the judgment in the case, and the decree signed by the judge and enrolled by the clerk is void, at least as to the provision authorizing sale without redemption. In the first place, the calendar of the judge is not a record of the court. See Code, §§ 2747, 196, 197. It is simply for the use of the judge in entering memoranda intended for the guidance of the clerk...