Fred Miller Brewing Co. v. Capital Ins. Co.
| Decision Date | 23 May 1900 |
| Parties | FRED MILLER BREWING COMPANY v. CAPITAL INSURANCE COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. T. F. STEVENSON, Judge.
ACTION on a judgment rendered in the circuit court of Milwaukee county, Wis. From judgment as prayed the defendant appeals.
Affirmed.
Cummins Hewitt & Wright and C. E. Campbell for appellant.
Dudley & Coffin for appellee.
The facts out of which this action grew are detailed in Fred Miller Brewing Co. v. Council Bluffs Ins. Co., 95 Iowa 31, 63 N.W 565, which was followed in reversing judgment for the defendant on the former hearing. Fred Miller Brewing Co. v. Capital Insurance Co., (Iowa), 63 N.W. 568. Service of the summons on Winchester was there held to have conferred jurisdiction on the circuit court of Milwaukee county to enter judgment against the defendant. It will be remembered, however, that such service was had in Clark county, of that state, November 2, 1888, and that the summons, with the return of service, was filed with the clerk in Milwaukee county on the tenth of that month. On the thirty-first day of December, 1889, the complaint, duly verified, with the affidavit of plaintiff's attorney, that no answer or demurrer had been received, was presented to the clerk, and judgment thereupon entered. This was in pursuance of section 2891 of the statutes of that state: Under the practice statute of Wisconsin the court acquired jurisdiction from the time of service of the summons (section 2626), which, among other things, necessarily designated the postoffice address of plaintiff or its attorney, at which place papers in the case might be served. Section 2630. The statute did not require service of the complaint, but, if this were omitted, the defendant might, within twenty days from the service of the summons, demand a copy thereof, which must be served on him within twenty days thereafter. Section 2633. "The summons must be filed with the clerk, and a state tax on the action of $ 1 paid, within ten days after the service of an answer or demurrer, or, if no answer or demurrer be served, at the time of applying for judgment." Section 2642. So that the summons, in the absence of an answer or demurrer, was not necessarily filed with the clerk until the time judgment was entered. Nor do these statutes seem to contemplate the filing of a complaint until that time. Provision for copies by the adverse party, rather than information from the court records, as in this state, is made; and it plainly appears from section 2898 requiring that, "the clerk, immediately after entering the judgment, shall attach together and file [*] the summons, pleadings, or copies thereof, proof of service, and that no answer or demurrer has been received," that it is not until then these papers are necessarily filed with him. As the affidavit must show no answer or demurrer to have been received, the inference is clear that the time within which the copy of the complaint may be demanded and an answer or demurrer served must elapse after service of the summons before judgment may be demanded by the complainant, and this, at the most might not exceed forty days. So there is nothing in the contention that relief could be had at any time subsequent to the service of summons. Nor is there any analogy between these statutes and the section of our Code requiring the petition to be on file ten days before term time. For this reason the presumption cannot be indulged that, in the absence of a statute in Wisconsin fixing the period during which the complaint shall be on file with the clerk, the law is like that of this state. The differences are manifest. Here judgment may not be entered in vacation except by agreement, nor by the clerk unless on the order of the court. There the practice favors the formation of issues in vacation, and also the disposition of all causes in which a money judgment is the only relief sought, without the interposition of the judge whenever it is legally apparent there will be no contest.
II. But it is urged that the action was begun in the wrong county. True, the summons was served in a county other than where the judgment was entered. Even though it should have been commenced in Clark county, under the laws of Wisconsin, as in Iowa, in the absence of a request by the defendant for a change of venue it might be prosecuted to judgment where brought. Section 2621 of the statute of Wisconsin, in part, reads: It is evident that no consent was given or motion filed, else the judgment would not have been rendered in Milwaukee county. A situation will not be assumed, in the absence of proof, to defeat the acts of an officer apparently clothed with authority, and discharging duties imposed upon him by statute. The service of the complaint could not have been more than forty days after that of the summons, and twenty days yet remained during which a motion might have been addressed to the court. But no such motion was included in the judgment roll. We are satisfied that no objection to the venue was interposed.
III. The appellant also contends that in no event might the plaintiff maintain the action. One Maier owned the property insured, and the loss, if any, was made payable to Fred Miller, mortgagee, as his interest might appear. The mortgage had been assigned to the plaintiff before the fire. The complaint alleged these facts, compliance with all the conditions of the policy on the part of the insured, and that the amount due on the mortgage exceeded the face of the policy. In Hammel v. Insurance Co., 50 Wis. 240 (6 N.W. 805), decided in 1880, the supreme court of Wisconsin held that the mortgagee to whom the loss under an insurance policy was payable as his interest might appear might maintain an action thereon without joining the assured as a party plaintiff. This decision stood unchallenged, save by the dissent therein filed, until 1893, when it was overruled the court holding that the mortgagee, under such circumstances had not sufficient interest to entitle him to recover. Williamson v. Insurance Co., 86 Wis. 393 (57 N.W. 46); Carberry v. Insurance Co., 86 Wis. 323 (56 N.W. 920); Chandos v. Insurance Co., 84 Wis. 184 (54 N.W. 390). We need not inquire what might have been the outcome had this case been appealed in 1888, on the theory suggested that the personnel of that court had not so changed until 1891 as to remove the majority concurring in Hammell v. Insurance Co. in 1880. It is enough to say that until that decision was overruled it was at least a mooted question in that state whether the mortgagee could maintain an action without joining the assured as party plaintiff, and necessarily to be determined by the trial court. The circuit court of Milwaukee county had acquired jurisdiction of the parties and of the subject-matter, and was, therefore, clothed with the power to determine whether all the parties necessary for the adjudication were before it. If it should be admitted that its conclusion was erroneous, this may not be taken advantage of in a collateral attack. Correction must necessarily have been sought through appeal or other appropriate procedure according to the laws of Wisconsin. The mortgagee was certainly a proper party plaintiff; and, even had the insured been joined, under the allegations of the petition, confessed by default to be true, the judgment must necessarily have been awarded to this plaintiff. Why? Because both had stipulated the loss should be so applied. See Mershon v. Insurance Co., 34 Iowa 87; Bartlett v. Insurance Co., 77 Iowa 86, 41 N.W. 579; authorities collected in 11 Enc. Pl. & Prac. 395. The judgment was strictly within the facts of the complaint, and the defect of parties, if such there was, patent on its face, and waived by making no objection. Melick v. Bank, 52 Iowa 94, 2 N.W. 1021; Hefner v. Insurance Co., 123 U.S. 747 (8 S.Ct. 337, 31 L.Ed. 309). To uphold a judgment by default it is not essential that the petition be free from defect. In Bosch v. Kassing, 64 Iowa 312, 20 N.W. 454, this court declared...
To continue reading
Request your trial