Federal Land Bank of Omaha v. Jefferson

• Decision Date: 21 January 1941
• Docket Number: 45170.
• Citation: 295 N.W. 855,229 Iowa 1054
• Parties: FEDERAL LAND BANK OF OMAHA v. JEFFERSON et al.
• Court: Iowa Supreme Court

295 N.W. 855

229 Iowa 1054

FEDERAL LAND BANK OF OMAHA v. JEFFERSON et al.

No. 45170.

Supreme Court of Iowa.

January 21, 1941

Appeal from District Court, Pottawattamie County; John A. Murray Judge.

A motion to dismiss, ordered submitted with the case on the original submission herein and overlooked, has been resubmitted with the petition for rehearing. The rehearing is granted and the motion to dismiss is sustained.

Appeal dismissed.

Superseding opinion in, 229 Iowa 122, 294 N.W. 293.

J. C Pryor, of Burlington, Franklin L. Pierce, of Omaha, Neb Ernest E. Stowe, of Council Bluffs, and Otto A. Gruhn and F. R. Boyles, both of Omaha, Neb., for appellant.

John J. Hess, of Council Bluffs, and G. C. Wyland, of Avoca, for appellees.

MILLER, Justice.

The opinion upon the original submission of this cause was filed October 15, 1940, and has been published in the advance sheets, 229 Iowa 122, 294 N.W. 293. Upon that submission, a motion to dismiss was submitted with the case but was overlooked and not ruled upon. Appellees served and filed a petition for rehearing and also served and filed a renewal of the motion to dismiss the appeal. The renewal of the motion to dismiss the appeal was ordered submitted with the petition for rehearing. On consideration thereof, the court is of the opinion that the motion to dismiss is well grounded. Accordingly, the opinion heretofore filed herein on October 15, 1940, is withdrawn, the rehearing is granted and the motion to dismiss is sustained.

The Federal Land Bank of Omaha commenced this action in the district court of Pottawattamie County to recover on a deficiency judgment after foreclosure on a real estate mortgage in the Circuit Court of Beadle County, South Dakota, which it had secured against two of defendants, the action brought in Iowa being in rem, aided by an attachment and levy upon certain lands in Pottawattamie County. The defendants appeared and demurred to the plaintiff's petition. The demurrer was sustained and, the plaintiff electing to stand on the ruling, judgment was entered dismissing the petition and for costs, from which judgment the Federal Land Bank has appealed.

The judgment from which appeal was taken herein was entered May 1, 1939. The notice of appeal was served and filed August 18, 1939. Appellees' motion to dismiss asserts that the lien of the attachment was lost because appellant failed to perfect its appeal within two days after the entry of judgment, relying upon the express provision of Sections 12141 and 12142 of the Code, 1939. See, also, Sioux Falls B. Ass'n v. Henry Field Co., 224 Iowa 655, 277 N.W. 284. Appellant concedes that, by virtue of such statute, the lien of the attachment was lost, but contends that the loss of such lien does not deprive appellant of its right of appeal. Appellees contend that the loss of the lien caused this court to lose jurisdiction of the subject matter of the action and, therefore, there is no cause of action to be determined by this court. We are disposed to the view and hold that appellees' contention is well grounded, that the preservation of the lien was necessary to preserve jurisdiction of the subject matter of the litigation, the extinguishment of the lien ended the jurisdiction of the court over the subject matter of this litigation and, accordingly, there is nothing before us to be determined.

Jurisdiction was originally secured through the levy of a writ of attachment against certain real estate in Pottawattamie County. Following such levy, however, the defendants entered general appearances. The court thereby secured jurisdiction of the person of each defendant herein. Appellant contends that, since the court has jurisdiction of the defendants, the loss of the attachment lien does not deprive the court of jurisdiction herein. However, it is necessary not only for the court to have jurisdiction of the parties, but also jurisdiction of the subject matter, and even though the court has jurisdiction of the parties, if it has no jurisdiction of the subject matter, it has nothing before it to determine. Schulte v. Great Lakes Forwarding Corp., 228 Iowa __, 291 N.W. 158.

In determining what constitutes the subject matter of the litigation, it is necessary to examine the prayer of the plaintiff's petition. This court has repeatedly recognized that the relief to be afforded is limited by the prayer of a petition. In re Estate of Collicott, 226 Iowa 106, 111, 283 N.W. 869; Wiechers v. Pool, 172 Iowa 422, 153 N.W. 65.

In the prayer of the petition herein, plaintiff states: " Wherefore, plaintiff herein demands judgment against the defendants, Lenna M. Jefferson and Charles C. Jefferson, for the sum of Twenty-seven Hundred Seventy-five Dollars ($2,775.00) with interest thereon at 6% per annum from and after December 15, 1936, together with the costs of this action, said judgment to be in rem only and against all share, title, right, and interest of said defendants in and to said certain real estate in Pottawattamie County, Iowa, as hereinbefore described." (Italics supplied.)

In its brief and argument appellant states: " It is an action in rem aided by attachment and levy upon certain land in Pottawattamie County, Iowa." In the report of the Civil Code Commission, which preceded the adoption of the Revision of 1860, the Commission states at page 329 as follows: " The judgment in rem is measured by the property in court." This statement is referred to by this court in Raher v. Raher, 150 Iowa 511, 518, 129 N.W. 494, 35 L.R.A., N.S., 292, Ann.Cas.1912D, 680, wherein this court recognizes that the preliminary seizure of property is often necessary to give the court jurisdiction in rem.

In the case of Wilson v. Smart, 324 Ill. 276, 155 N.E. 288, 291, the court states: " In the strict sense of the term, a proceeding in rem is one which is taken directly against property, or one which is brought to enforce a right in the thing itself. The distinguishing characteristic of judgments in rem is that they operate directly upon the property, and are binding upon all persons, in so far as their interests in the property are concerned. Austin v. Royal League, 316 Ill. 188, 147 N.E. 106."

In the case of Hughes v. Hughes, 211 Ky. 799, 278 S.W. 121 123, the court states: " We think it necessary to observe in passing some of the important distinctions between proceedings in personam and in rem. The purpose of...