Carr v. Bosworth

• Decision Date: 11 October 1887
• Parties: CARR v. BOSWORTH AND OTHERS.
• Court: Iowa Supreme Court

72 Iowa 530

34 N.W. 317

CARR

v.BOSWORTH AND OTHERS.

Supreme Court of Iowa.

October 11, 1887.

Appeal from district court, Palo Alto county; LOT THOMAS, Judge.

Action in chancery to quiet the title of certain lands in plaintiff. The defendant Weil answered, denying the allegations of the petition, and filed a cross-petition setting up title in himself, which was dismissed, and he appeals.Harrison & Jenswold, for appellant.

Soper, Crawford & Allen, for appellee.

BECK, J.

1. The facts upon which the decision turns are undisputed, as shown by the record before us. Plaintiff claims title to the land under a sheriff's sale made upon a decree of foreclosure. The defendant Weil's title is based upon a sheriff's sale made upon a judgment junior to the mortgage under which plaintiff claims. Defendant insists that the foreclosure sale upon which the deed to plaintiff was executed is void, and asks permission to redeem from the mortgage, and, upon redemption being ordered, that plaintiff, who is and has been in possession of the land, be required to account for the rents and profits thereof.

2. The ground upon which defendant maintains that the foreclosure decree is void is this: The decree was entered by the clerk of the district court wherein it was rendered, in a record book designated as “Decrees of the Foreclosure of Mortgages,” in which such decrees, and nothing else, were kept of record. Other proceedings of the court were entered in a general record book, except defaults, which were entered in a separate book, which was called the “Default Docket.” These books and the general record book were all indexed together in a common index book. The decrees in the decree book referred to were also entered in the judgment docket. The position of defendant's counsel is that the book, in which the decree of foreclosure under which plaintiff claims was entered, is unauthorized by law, and the decree is therefore void. They insist that the statute (Code, § 197) authorizes and permits the clerk to keep but one book in which all proceedings, judgments, and decrees are required to be entered. The part of the section relied upon by counsel is in this language: “The clerk is required to keep the following books,” in which shall be entered the business of the district and circuit courts severally: “(1) A book containing the entries of the proceedings of the court, which may be known as the ‘Record Book’ and which is to have an index referring to each proceeding in each cause under the name of the parties, both plaintiffs and defendants, and under the name of each person named in either party.” The section further...