Chader v. Wilkins

• Decision Date: 15 February 1939
• Docket Number: 44643.
• Citation: 284 N.W. 183,226 Iowa 417
• Parties: CHADER v. WILKINS, Sheriff, et al.
• Court: Iowa Supreme Court

284 N.W. 183

226 Iowa 417

CHADER v. WILKINS, Sheriff, et al.

No. 44643.

Supreme Court of Iowa.

February 15, 1939

Appeal from District Court, Boone County; H. E. Fry, Judge.

Suit to enjoin sheriff's sale of real estate on execution. The defendant, Dahlberg, cross petitioned for the establishment of his judgment lien, and to bar all rights of plaintiff in the land sold. Decree, as prayed, for defendants.

Affirmed.

S Trevarthen, of Perry, for appellant.

J. W Jordan and T. J. Mahoney, both of Boone, for appellee.

BLISS Justice.

On February 1, 1912, defendant, Dahlberg, obtained a personal judgment against Bradford M. Brooks, otherwise known as B. M Brooks, in the Boone District Court. The judgment not having been paid, Dahlberg brought suit thereon, in the same court, and obtained judgment against Brooks, on September 22, 1931. This judgment was not paid. On May 23, 1936, the father of Brooks died testate, devising a quarter section of land, in Boone County, to the wife of the judgment debtor. She died intestate, on December 4, 1936, seized of the land, leaving her husband surviving, and her daughter, Helen Chader, the appellant, as her only heir at law. On December 15, 1936, the judgment debtor quit-claimed his statutory one third interest in the land to the appellant. In March, 1938, the appellee, Dahlberg, caused execution to issue on the judgment of September 22, 1931, and the appellee, Wilkins, Sheriff of Boone County, levied upon the interest, of the judgment debtor, Bradford M. Brooks, in said land. On April 13, 1938, the appellant filed her petition, in equity, alleging the matters stated above, and further alleging that the judgment of Dahlberg was barred by the statute of limitations, and prayed for a temporary injunction to avoid the sale. The temporary writ was issued. On May 27, 1938, the appellant amended her petition by striking out the paragraph alleging the procurement of the judgment, and averred instead that Dahlberg had attempted to obtain such judgment, but had failed because no original notice of the action had ever been served on Bradford M. Brooks. Dahlberg filed answer admitting that the appellant had derived and held title to the land as she alleged, but averred that she held title subject to the lien of his judgment upon an undivided one third interest therein, and denied all other allegations of the appellant. Dahlberg also filed cross petition, asking that the lien of his judgment be established against said one third interest, and that upon the execution sale thereof, all title and interest of the appellant therein be barred. From a decree for the appellees, this appeal was taken.

But two issues were presented in the trial below, and they alone are submitted for the determination of this court.

I.

The first issue is purely one of fact and involves the question of whether service of an original notice was had upon Bradford M. Brooks, in the action upon the original judgment of February 1, 1912, in which the judgment of September 22, 1931, was obtained. This judgment entry recites that the court found that a good and sufficient original notice had been duly and timely served upon the defendant therein. On the original notice which was filed, July 24, 1931, in the office of the Clerk of the District Court, was this return of service:

" State of Iowa, Boone County, ss:

Received the within notice this 16th day of July, A. D. 1931, and on the 23d day of July, A. D. 1931, I personally served the same on the within named B. M. Brooks by reading the original to him and delivered to him a true copy thereof. All done in Boone County, Iowa.

Pardie L. Moore, Sheriff of Boone County, Iowa."

Sheriff Moore identified his signature on the return and testified positively that he served the notice as stated therein, and identified Brooks, in the Court Room, as the person upon whom he made the service. Brooks testified that he was in northern Minnesota from July 2, 1931 to the very last of that month, and that the notice was not served. A fishing friend, who was not with him in Minnesota during that month, testified that Brooks was in Minnesota at the time stated. Because of conflict in the testimony of this witness and that of Brooks, the trial court found that each might well have been mistaken as to the year. Because of the failure of the appellant to introduce the testimony of two witnesses whom Brooks claimed were with him in Minnesota in July, 1931, and because of her failure to introduce a register kept at the fishing lodge showing the identical periods that Brooks was there each year, the trial court held that the appellant had failed to establish the non service of the notice with that character of proof requisite to overthrow the testimony of the sheriff and his return of service. This testimony and evidence, according to the appellant, was all available to her. In speaking of a similar situation, Justice Evans, in Nehring v. Hamilton, 210 Iowa 1292, 232 N.W. 655, 656, said: " In weighing this evidence the judicial mind naturally seeks for just such corroboration. The failure to produce the same, or to explain such failure, tends to impeach the evidence of the uncontradicted witness * * *." As stated in Des Moines Coal & Coke Co. v. Marks Inv. Co., 197 Iowa 589, 195 N.W. 597, 598, 197 N.W. 628:" It is well settled in this state, and doubtless in all other jurisdictions, that a very strong presumption obtains in favor of the return of an officer, and that it cannot be impeached except by very clear and satisfactory proof." Heater v. Bagan, 206 Iowa 1301, 221 N.W. 932; McWilliams v. Robertson, 180 Iowa 281, 163 N.W. 198; Thompson Bros. v. Phillips, 198 Iowa 1064, 200 N.W. 727; Stier v. Iowa State Trav. Men's Ass'n, 199 Iowa 118, 127, 201 N.W. 328, 59 A.L.R. 1384; Wyland v. Frost, 75 Iowa 209, 39 N.W. 241; Hoitt v. Skinner, 99 Iowa 360, 68 N.W. 788; Pyle v. Stone, 185 Iowa 785, 171 N.W. 156.We are not disposed to, in any wise, relax the force of this presumption. During the terms of their office, sheriffs and other process serving officers serve many notices. In many cases the service is upon persons little known to them. Memory is at best frail, and the official return of service is by far the most trustworthy evidence. In fact there is much authority that as between the...