Brown & Sons v. Smith

• Decision Date: 21 December 1888
• Parties: BROWN & SONS v. SMITH et al
• Court: Iowa Supreme Court

41 N.W. 27

76 Iowa 315

BROWN & SONS v. SMITH et al

Supreme Court of Iowa, Des Moines

December 21, 1888

Decided October, 1888.

Appeal from Wright District Court.--HON. D. D. MIRACLE, Judge.

ACTION to foreclose a mortgage. Upon a trial on the merits plaintiffs' petition was dismissed. They appeal to this court.

DISMISSED.

Aaron Yearous, for appellants.

No appearance for appellees.

OPINION

BECK, J.

I.

The debt secured by the mortgage amounts to $ 45.77, with interest at ten per centum per annum from August 3, 1882. The petition prays for judgment for the amount of the debt, and for a proper decree enforcing the mortgage lien. No certificate was given by the judge of the district court sending the case here for the decision of questions certified. The amount in controversy being less than one hundred dollars, we cannot take cognizance of the case, in the absence of such certificate.

II. The plaintiff claims in this action to foreclose the mortgage. The mortgage confers on the mortgagee no such interest in the land as is contemplated by Code, section 3173; which provides that the limitation upon appeals prescribed therein shall not effect a case wherein is involved an interest in real property. A mortgage under our statutes and decisions conveys no interest or title in real property. It simply creates a lien thereon. A case involving the enforcement of a lien for less than the sum limited in section 3173 cannot be brought to this court without the certificate therein required. Andrews v. Burdick, 62 Iowa 714, 16 N.W. 275; Colyar v. Pettit, 63 Iowa 97, 18 N.W. 694; Johns v. Pattee, 61 Iowa 393, 16 N.W. 280. In the absence of the certificate, we have no jurisdiction of the case. It is therefore

DISMISSED.