Day v. Goodwin
| Decision Date | 20 January 1898 |
| Parties | JOSIAH DAY, Appellant, v. ANN GOODWIN, Appellee, H. M. STEVENS, JOSIAH DAY, Substituted as Plaintiff, v. ANN GOODWIN, RICHARD GOODWIN, et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Calhoun District Court.--HON. Z. A. CHURCH, Judge.
THESE cases were submitted and will be considered together. The matters involved are so intimately related that they, in effect, present but one cause. The facts will be found in the opinion. There was a decree and judgment below for defendants. Plaintiff appeals.
Reversed.
M. W Frick and H. S. Winslow for appellant.
Botsford Healey & Healey for appellees.
On October 3, 1885, the defendants Ann Goodwin and Richard, her husband, being indebted to one H. M. Stevens, executed to him their promissory note for the amount, and also a mortgage securing it, on the real estate in controversy, situated in Calhoun county, Iowa. An action was brought in the name of Stevens, as plaintiff, and against the Goodwins and one Horton and one Dautremont, as defendants, to foreclose this mortgage, at the February term of the Calhoun district court. The proceedings thereafter in said foreclosure, in the order in which they occurred, are as follows: Complete record entry: This entry seems to be but a copy of the entry in the judge's docket. On February 20, 1889, a decree was signed by the judge, reciting due service of original notice upon Ann Goodwin, Horton and Dautremont, giving judgment against Ann Goodwin for one thousand two hundred and ninety-one dollars and nine cents, with interest at eight per cent, and costs of suit taxed at sixty-nine dollars and twenty-six cents, and decreeing a foreclosure of the mortgage and sale of the land, and ordering special execution therefor. This decree was filed, with the papers in the cause, February 20, 1889, but was never recorded. On October 10 of the same year, the matter coming on for hearing against Richard Goodwin, a supplemental decree was entered and recorded in which a judgment was rendered against him for one thousand, five hundred and sixty-one dollars and twenty-seven cents, with interest at eight per cent, and costs of suit, including attorney's fees, taxed a ninety-two dollars and ninety-five cents, and foreclosing the mortgage, and ordering special execution to issue. This cause was known as "Equity No. 579," and will be so referred to here. Thereafter, on November 16, 1889, the land was sold under special execution issued on both said decrees for the sum of one thousand six hundred and ninety-seven dollars and thirteen cents; and plaintiff Day, as assignee of the certificate of sale, received on November 19, 1890, a sheriff's deed. Plaintiff has owned and occupied the premises since that time, and has made valuable improvements thereon. It appears, too, that plaintiff took the assignment of the certificate of sale at the request of Richard Goodwin, and that, upon the latter's representation that no redemption would be made, plaintiff paid him the sum of four hundred dollars. These facts are shown by plaintiff in the case of Day against Goodwin, and it is asked that his title be quieted. The defendant appears by Richard Goodwin, as her guardian, and admits the execution of the mortgage and note. But it is alleged that said Ann Goodwin was of unsound mind at the time of the service of the original notice in No. 579, and has been so judicially declared. This notice, it may be here said, was served by reading and giving a copy thereof to Ann Goodwin, as provided in section 2603 of the Code of 1873. A cross bill is also filed in which is set up the insanity of defendant, the ownership of the land, and a denial of the fact that any judgment was rendered in the foreclosure proceedings. It is also claimed that Day is liable for the rental value of said premises in the amount of one thousand eight hundred dollars; and the prayer is that she have judgment against him, and that her title be quieted. The lower court allowed the plaintiff the amount due on his mortgage, charged him for rents, and gave judgment for the remainder, one thousand, five hundred and forty-two dollars and forty three cents, to plaintiff, and established it as a lien on the land. It set aside the sheriff's deed to plaintiff, and decreed title to the premises to be in defendant, and the real estate was then ordered sold to pay plaintiff's lien. On motion, it was ordered that all costs, including filing fee and service of original notice, except costs of witnesses who testified to improvements, be taxed to plaintiff. From this decree and order plaintiff appeals. To avoid confusion, we will consider these issues first, and state the facts in the case of Stevens against Goodwin later on.
Plaintiff claiming title through the proceedings in the Stevens foreclosure, seeks to quiet the same as against Ann Goodwin, who was a defendant therein. It is claimed in her behalf that the sale and deed in that case were void, for that no judgment was ever rendered in said cause. This must be the ground upon which the defendant can succeed, if at all, for the claim that the original notice was not properly served, and which will be spoken of more fully later, cannot be considered except upon application to set aside the judgment if one was rendered; and neither the answer nor cross bill suggests that any such relief is desired. The theory of the defense is that equity cause No. 579 is still open and pending, and that Ann Goodwin has a right to make defense therein. We may assume that the entry apparently copied from the judge's docket is, so far as it pretends to be a judgment, absolutely void, and that the decree signed by Judge Conner, but never recorded, has in such condition no force or effect; but there is still another entry to be disposed of, and this is the supplemental decree of October 10, 1889, which was duly recorded and approved. This language is found in this entry: "And the court finds, after an inspection of the record, that due and legal service of notice of the pendency of this cause has been made upon said defendants, and that said defendants having failed to appear, and though solemnly called, came not, but made default, it is therefore ordered by the court that said defendants be adjudged in default." The court further finds that "plaintiff is entitled to a foreclosure of said mortgage as prayed in the petition. " A judgment is then given against Richard Goodwin, the land ordered sold, and his equity of...
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