Des Moines Coal & Coke Co. v. Marks Inv. Co., 35470.
| Decision Date | 13 November 1923 |
| Docket Number | No. 35470.,35470. |
| Citation | 195 N.W. 597,197 Iowa 589 |
| Parties | DES MOINES COAL & COKE CO. ET AL. v. MARKS INV. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Jas. C. Hume, Judge.
Suit in equity to set aside a purported judgment at law, entered against the plaintiffs herein at the suit of the defendant herein. The ground of relief alleged is that no notice of suit was served on either of the plaintiffs herein (being the defendants therein) and that the court was therefore without jurisdiction to enter such judgment. Decree was entered, setting aside the judgment and awarding to the defendant a recovery against the plaintiffs of $109.67 as for money due at the time the judgment at law was entered. The defendant has appealed. Reversed.Dunshee & Brody, of Des Moines, for appellant.
Clinton L. Nourse, of Des Moines, for appellees.
The action at law, in which the judgment complained of was entered, purported to have been begun on February 17, 1920. The return of the sheriff upon the original notice purported to show due service of the same on the same date upon A. L. Clinite as president of the Des Moines Coal & Coke Company, and upon Samuel Blount as vice president of the Blount-Evans Coal Mining Company. It is the contention of thè plaintiffs that this was a false return, and that no notice was in fact ever served upon either of said persons. On April 5, 1920, the defendants in said law action were adjudged in default, and judgment was entered against them for $783.22. No apparent attempt was made to collect said judgment until after the expiration of one year, after which time proceedings auxiliary to execution were begun. Thereupon this suit was instituted.
The controlling issue in the case is one of fact: Was the return of service upon the original notice a false return? Clinite and Blount as witnesses each denied that any notice had ever been served upon them, or that they had ever heard of the purported suit or of the judgment rendered thereon until the auxiliary proceedings were begun. On the other hand, the deputy sheriff who purported to have served the original notice testified as a witness in support of the judgment, to the effect that he had a personal recollection of the fact of service. He also testified to the place, time, and circumstances attending the service upon each officer. Circumstances are made to appear in the record which lends some degree of corroboration respectively to each side. As corroborating the plaintiffs herein, is the fact of the default itself, whereas, the claim sued on was resisted by the respective companies prior to suit. It is further contended by the plaintiff that the amount claimed in the petition at law and the amount of the judgment entered was so exorbitant as to invite contest on their part, and that this is a corroborating circumstance. On the other hand, the defendant claims that on February 19, 1920, one Duro, who was the managing officer of both plaintiff corporations, called at the office of this defendant and expressed his resentment at the suit. Duro concedes that he called at the office on that date and expressed resentment, not at the suit, but at the fact that the defendant had sent him a bill claiming from him substantially the amount for which judgment was later entered. He testified that he did not at that time know that a suit had been instituted. On February 24, 1920, he wrote a letter to this defendant advising that he had tendered the amount due to the Consumers' Ice Company as the proper persons to receive the same. The amount thus tendered was $70.
[1] 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. Ketchum v. White, 72 Iowa, 193, 33 N. W. 627;Wyland v. Frost, 75 Iowa, 209, 39 N. W. 241;McWilliams v. Robertson, 180 Iowa, 281, 163 N. W. 198;Pyle v. Stone, 185 Iowa, 785, 171 N. W. 156;Mosher v. McDonald & Co., 128 Iowa, 68, 102 N. W. 837;Farnsley v. Stillwell, 107 Iowa, 631, 78 N. W. 678.
The question here is whether the plaintiffs herein have produced that quantum of proof necessary to annul the return of the officer and to contradict his testimony as a witness. The more important details of fact may be stated briefly. The Des Moines Coal & Coke Company, Blount-Evans Coal Mining Company, and the Des Moines Ice & Fuel Company were three kindred corporations, each and all of which were largely owned and managed by the same persons in interest. The first to be organized was the first here named. In 1919, it turned over its business to the Blount-Evans Coal Mining Company but continued its corporate existence. In 1919, the Blount-Evans Coal Mining Company turned over its business to the Des Moines Ice & Fuel Company but continued also its own corporate existence. The first-named company had rented office space in 1916 by becoming a subtenant of the Consumers' Ice Company. By its terms, the lease was to expire March 1, 1920. In the lease held by the Consumers' Ice Company it was provided that, in the event of sale of the premises, the lease might be terminated upon 30 days' notice. In September, 1919, the premises were sold to the defendant herein. The lease of the Consumers' Ice Company was properly terminated on October 25, 1919. The plaintiff herein and the Des Moines Ice & Fuel Company continued in nominal possession at least of their office space until some date in December, 1919. This defendant claims the rental value of the office space during the time that it was occupied by these plaintiffs after October 25, 1919. Duro had been the general manager of the sales department of all three corporations and was the general manager of the business done in the city office. All the negotiations prior to suit had by this defendant was with Duro. Clinite had only recently bought into the company, and had no active connection with it prior to January 1, 1920. He had never had anything to do with any of the business at the office in question; this having been vacated before his active connection with the corporation. Blount's activities were with the production end of the business and he had nothing to do with the city offices or with the renting of the same. It is the theory of fact, advanced by the defendant, that, when Clinite and Blount were served with notice, they would naturally advise Duro of the claim made, and, in view of their ignorance of the whole matter, would expect Duro to look after it, and that this was what they probably did do, and that this was the prod that stirred the resentment of Duro and brought him to the office of the defendant on February 19th and stimulated his letter of February 24th.
The evidence relied upon by these plaintiffs to impeach the return of the sheriff upon the original notice was as follows:
Clinite testified:
...
To continue reading
Request your trial