Carr v. King & Tomlinson

• Decision Date: 25 October 1918
• Docket Number: 32248
• Citation: 169 N.W. 133,184 Iowa 734
• Parties: OLLIE CARR, Appellee, v. KING & TOMLINSON et al., Appellants
• Court: Iowa Supreme Court

169 N.W. 133

184 Iowa 734

OLLIE CARR, Appellee, v. KING & TOMLINSON et al., Appellants

No. 32248

Supreme Court of Iowa, Des Moines

October 25, 1918

Appeal from Perry Superior Court.--W. W. CARDELL, Judge.

ACTION in replevin resulted in judgment for the possession of the property in controversy, or, in lieu thereof, its value. Defendant appeals.--Reversed.

Judgment against Brown be Affirmed, and against King & Tomlinson and the members of that firm, Reversed.

Nesbitt & Johnston, for appellant.

Dugan & Dugan, for appellee.

LADD J. PRESTON, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

The plaintiff claims to be the absolute owner of three pool tables and accompanying balls, cues, racks, a card table, gas tank, ice box, and billiard pocket blocks, and sued out a writ of replevin for the possession thereof. The cause of detention was alleged to have been the sale of the property upon execution, issued on judgment entered in the justice court of Esquire Smith, without jurisdiction, as is alleged. The answer was a general denial.

I. It appears from the record that execution did issue, and that the property was sold thereunder to Brown, one of the defendants in this action. The main controversy concerns the validity of the judgment upon which the execution issued. It seems that King & Tomlinson were the owners of a hall, which they leased to the Scandia Supply Company; that it leased the billiard room to Carr; and that Zagnalia was in charge thereof. King & Tomlinson filed in the justice court their claim for $ 20, due for rent from Carr and Zagnalia, February 15, 1916. The judgment entry of the justice recited that thereupon, he issued an original notice to defendants returnable July 5, 1916, and what may be construed as saying that the original notice was served April 27th of that year and that, on the day fixed, judgment was entered for the amount claimed, and for the sale of the property. The evidence, however, of the justice tended to show that original notice was issued returnable April 27th, but that it was not served on Carr; and that, upon the return day, it was orally remarked that service by posting the notices for 60 days would be necessary; and that he then fixed July 5th as the day for the return of service. Even if this be conceded, the docket entry, together with the evidence, fails to show that the court acquired jurisdiction over Carr. The recitals of the judgment record indicate that the time fixed in the notice was more than 15 days subsequent to the date thereof. Section 4489 of the Code requires that the notice "state the amount for which the plaintiff will take judgment if the defendant fails to appear and answer at the time and place therein fixed;" and the following section, that "the time fixed in the notice must be not less than five nor more than fifteen days from the date." The judgment, then, on its face appears to have been invalid.

Section 4582 of the Code provides that, "in actions in which an attachment is sought, if it is made to appear by affidavit that personal service cannot be had on the defendant within the state, the justice, upon the return day, unless the defendant appear, shall make an order fixing the day for the trial, not less than sixty days thereafter, and requiring notice to be given by any constable as provided in the next section." The next section reads:

"Upon such order being made, at least sixty days' notice of the pendency of such action shall be given by posting up written or printed notices in three public places in the township where the action was commenced, which shall have the effect of a service by publication in the district court, and the justice shall proceed to hear the cause upon the day specified for that purpose."

There was no showing that any affidavit, such as contemplated in above section, was ever filed, nor that an order for publication based thereon was ever made. No reference is made to either in the justice's entry. Contrary to the contention of appellant, such an order should be in writing, and the filing of the necessary affidavit referred to therein. See Bristol Savings Bank v. Judd, 116 Iowa 26, 89 N.W. 93.

Whether on proper procedure, a justice's entry may be corrected by inserting such an order, need not be considered. If the attached property is disposed of by this procedure without personal notice, it is important that the record shall contain enough to indicate that the statutory requirements have been pursued in sequestering the defendant's property to the payment of his debts. It is too well settled to require...