Fanning v. Krapfl

Decision Date21 December 1885
PartiesFANNING v. KRAPFL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Dubuque district court.

This is an action in equity to set aside a sheriff's deed to certain real estate, and quiet the title thereto in plaintiff. The district court entered judgment for plaintiff, granting the relief demanded in the petition. Defendant appeals. For former opinion see 14 N. W. Rep. 727, and 16 N. W. Rep. 293.Utt Bros. and M. H. Beach, for appellant, Andrew Krapfl.

McCeney & O'Donnell, for appellee, John Fanning.

REED, J.

It is alleged in the petition that the real estate in controversy was conveyed to W. R. I. Hopkins in trust for T. Phelia Boyd Hopkins and her children, and that plaintiff acquired title thereto by a conveyance from said trustee. It is also alleged that while the title was in said trustee the defendant procured the premises to be sold on a special execution issued on a judgment rendered in the circuit court of Dubuque county in favor of defendant and against John C. Hopkins and T. P. B. Hopkins for $393.98, and for the foreclosure of a mechanic's lien, and that he became the purchaser thereof, and that a deed was executed to him by the sheriff under said sale. But it is alleged that said judgment was void for the reason that the court did not have jurisdiction of said T. Phelia Boyd Hopkins. It is shown that said judgment was rendered on a service of the original notice by publication. A copy of said notice is set out in the petition, and it appears therefrom that the notice was directed to John C. Hopkins, P. T. B. Hopkins, his wife, and W. R. I. Hopkins, trustee. It is also shown that the parties were described in the same manner in the petition. The cause has once before been in this court. See 61 Iowa, 417;S. C. 14 N. W. Rep. 727, and 16 N. W. Rep. 293. That appeal was from an order of the district court sustaining a demurrer to the petition, and this court held that the service by publication of an original notice directed to P. T. B. Hopkins, wife of John C. Hopkins, did not give the court jurisdiction of T. Phelia Boyd Hopkins or T. P. B. Hopkins. It was also held that, as there was no express averment in the petition that T. P. B. Hopkins was in fact the wife of John C. Hopkins when the judgment was rendered, the case was not aided by the recital in the notice describing P. T. B. Hopkins as the wife of John C. Hopkins. When the cause was remanded to the district court the defendant filed an answer in which it was alleged that T. P. B. Hopkins was in fact the wife of John C. Hopkins when said notice was published, and when the judgment was rendered, and that she was better known in Dubuque county as the wife of John C. Hopkins than by her Christian name, or by the initial letters of that name. But the district court struck this averment out of the answer on motion, thus holding, in effect, that the publication of the notice to P. T. B. Hopkins, wife of John C. Hopkins, did not, conceding the truth of these allegations, give the court jurisdiction of T. P. B. Hopkins.

It is said in the former opinion “that a published notice is not necessarily sufficient if it is such that the defendant, upon actually seeing it, would probably conclude that it was intended for him. The office of the notice is in part to give the pendency of the action notoriety. It should be such that others than the defendant seeing it, and knowing defendant, or knowing of him, would not probably be misled by it as to the person for whom it was intended.” This, it seems to us, lays down the correct rule on the subject. The notice should describe the party to whom it is directed with such certainty as that neither he, nor other persons acquainted with or knowing him, could reasonably be misled by it as to the person for whom it was intended; and it seems to us that, conceding the truth of the allegations stricken from the answer, the notice in question was sufficient to give the court jurisdiction of T. P. B. Hopkins. If the notice had come to her attention, she would have learned from it that it was intended for the wife of John C. Hopkins, which was the name of her...

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5 cases
  • Harpold v. Doyle
    • United States
    • Idaho Supreme Court
    • December 16, 1908
    ... ... St. 249, 52 P. 161.) And subsequent service on ... defendant of a copy made by plaintiff from the files of the ... court is a nullity. (Fanning v. Foley, 99 Cal. 336, 33 P ... The ... affidavit must show whether the residence of the person upon ... whom service is sought by ... its other orders and judgments." (1 Freeman on ... Judgments, sec. 127; Fanning v. Krapfl, 68 Ia. 244, ... 26 N.W. 133; Dowell v. Lahr, 97 Ind. 146; Quarl ... v. Abbett, 102 Ind. 233, 52 Am. Rep. 662, 1 N.E. 476; ... Harvey v ... ...
  • Noonan v. Montgomery
    • United States
    • Arizona Supreme Court
    • September 27, 1922
    ... ... Chapin, 37 Cal.App. 573, 174 P. 334; ... Morrissey v. Gray, 160 Cal. 390, 117 P ... 438; Bunce v. Bunce, 59 Iowa 533, 13 N.W ... 705; Fanning v. Krapfl, 68 Iowa 244, 26 ... N.W. 133; Harrison v. Beard, 30 Kan. 532, 2 ... P. 632; Kelly v. Harrison, 69 Miss. 856, 12 ... So. 261; Paulin v ... ...
  • Mosely v. Reily
    • United States
    • Missouri Supreme Court
    • December 22, 1894
    ... ... also, the following cases as showing that recitals in the ... notice may be used as aids in the identification of the party ... notified. Fanning v. Krapfl, 68 Iowa 244, 26 N.W ... 133; Waltz v. Borroway, 25 Ind. 380; Porter v ... Stout, 73 Ind. 3 ...           Tax ... suits ... ...
  • Mosely v. Reily
    • United States
    • Missouri Supreme Court
    • December 22, 1894
    ...following cases as showing that recitals in the notice may be used as aids in the identification of the party notified. Fanning v. Krapfl, 68 Iowa, 244, 26 N. W. 133; Waltz v. Barroway, 25 Ind. 380; Porter v. Stout, 73 Ind. 3. Tax suits under the statutes of this state are peculiar in this,......
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