Halverson v. Hageman, 49547

• Decision Date: 14 October 1958
• Docket Number: No. 49547,49547
• Citation: 92 N.W.2d 569,249 Iowa 1381
• Parties: George HALVERSON, Appellee, v. Richard HAGEMAN, Appellant.
• Court: Iowa Supreme Court

Page 569

92 N.W.2d 569

249 Iowa 1381

George HALVERSON, Appellee, v. Richard HAGEMAN, Appellant.

No. 49547.

Supreme Court of Iowa.

Oct. 14, 1958.

Cutting & Cutting, Decorah, for appellant.

Joseph Neuzil, Calmar, and Miller & Pearson, Decorah, for appellee.

GARFIELD, Chief Justice.

This appeal presents two ultimate questions. Is the judgment entered against defendant-appellant void for alleged failure to comply with the Rules of Civil Procedure, 58 I.C.A., in preparing and serving the original notice and filing the petition? If so, should defendant's petition to vacate the judgment be overruled because of estoppel, laches or other grounds alleged by plaintiff?

The trial court held any failure of plaintiff to follow the Rules of Civil Procedure strictly in procuring the judgment was not fatal to it and in any event defendant was precluded by laches from attacking it. The petition to vacate was submitted to the trial court, without evidence, on the files and record in the case, including the admitted allegations of the petition to vacate the judgment and plaintiff's answer thereto. The appeal must be considered here on the same record.

On September 7, 1956, defendant was served with the following

'Original Notice

'To Richard Hageman, defendant: You are hereby notified that there will be on file on or before September 24, 1956, in the office of the Clerk of the District Court of the above named County and State, a petition of George Halverson claiming of the sum of Eight Hundred Ten and 95/100 Dollars as balance of principal due from you on your promissor note as of December 14, 1955 with interest at the rate of five percent from the 14th day of December, 1955, with a reasonable attorney fee and Court Costs; for further particulars see petition to be filed as aforesaid.

'Now, unless you appear thereto and defend on or before noon of the second day of the next term of said Court to be held at the Court House in Decorah, in said County, commencing on October 1st, 1956, default will be entered against you and judgment rendered thereon in accordance with the prayer of said petition.

's/ J. W. Neuzil, Attorney for Plaintiff'

We assume this notice was captioned in the District Court of Winneshiek County. At least nothing is claimed for any failure in this respect.

Plaintiff's petition was filed September 21, 1956, upon a promissory note in the principal amount of $875, dated September 9, 1952, due in one year, payable to plaintiff, purporting to be signed by defendant. On October 5, 1956, default judgment was entered against defendant for $882.58 with interest from October 2, 1956, costs and attorney fees. On October 8, 1956, the clerk of the district court gave defendant written notice of the judgment as required by rule 233, Rules of Civil Procedure.

December 6, 1956, defendant filed a motion to set aside the default judgment on three grounds: (1) defendant never executed a note to plaintiff and the judgment was obtained through fraudulent means, (2) the record does not show that an affidavit of identity was filed which is necessary to the rendering of any judgment in district court, (3) the record does not show that a military affidavit was filed which is also necessary to the rendering of any judgment in district court. In connection with each ground defendant alleged that an execution was issued on the judgment and certain property was levied upon.

Plaintiff resisted the motion for alleged insufficiency of the grounds thereof and because it was not filed within 60 days after entry of the judgment as provided by rule 236, Rules of Civil Procedure relating to setting aside a default judgment for mistake, inadvertence, surprise, excusable neglect or unavoidable casualty.

December 21, 1956, defendant's motion was overruled because not filed within the 60 days provided by rule 236 and 'therefore it becomes unnecessary to pass upon the questions raised by the motion. No question is raised as to jurisdiction of defendant on date of judgment.' Defendant does not now rely upon any ground asserted in the above motion.

December 21, 1957, defendant by his present counsel filed the petition now before us to vacate the judgment on the ground the judgment is void and the court was without jurisdiction of defendant for various reasons now relied upon and herein considered.

Plaintiff's answer to this petition admits service of the original notice, filing of plaintiff's petition and entry of the default judgment, all as above explained. Plaintiff's answer contains several allegations of new matter to which no reply was filed and therefore they must be deemed admitted. Rules 73, 102, Rules of Civil Procedure; Nall v. Iowa Elecric Co., 246 Iowa 832, 835, 69 N.W.2d 529, 531; Massey v. City Council, 239 Iowa 527, 534, 31 N.W.2d 875, 880; Kriv v. Northwestern Securities Co., 237 Iowa 1189, 1193, 24 N.W.2d 751, 753.

Plaintiff's answer alleges the filing of the motion to set aside judgment in December, 1956, and the overruling thereof; issuance of execution on the judgment on October 13, 1956, and its return unsatisfied; issuance of a second execution on March 28, 1957, levy on an automobile thereunder, its sale after proper notice to defendant and others and payment of $200 on the judgment from the sale proceeds; issuance of a third execution on November 19, 1957, and its levy on a truck owned by defendant; an affidavit by the sheriff charging defendant with contempt of court; a court order requiring defendant to show cause why he should not be punished for contempt.

Plaintiff further alleges defendant is barred from making another attack upon the judgment subsequent to the overruling of his motion in December, 1956; he was obliged to raise therein all the grounds claimed by him for setting aside the judgment and grounds not so raised were waived; defendant is guilty of laches in failing to take the action now taken and upon the grounds now raised promptly after notice upon him of the default judgment and the delay has operated to plaintiff's prejudice and damage; plaintiff relied upon the overruling of defendant's motion in December, 1956, and in reliance thereon took the further action above referred to.

Plaintiff also alleges defendant's petition to vacate judgment is not timely under rules 252, 253 in that it was not filed with one year after rendition of the judgment.

I. We may as well first dispose of the point last suggested. If, as defendant contends, the default judgment was void he was not required to attack it upon such ground within one year after its rendition as provided in rules 252, 253--compliance with these rules was not essential. Swift v. Swift, 239 Iowa 62, 67, 29 N.W.2d 535, 538, and citations; Korsrud v. Korsrud, 242 Iowa 178, 183, 45 N.W.2d 848, 850; Jacobson v. Leap, Iowa, 88 N.W.2d 919, 921, and citations. See also Annotation 154 A.L.R. 818, 819; 30A Am.Jur., Judgments, section 693, page 659; 49 C.J.S. Judgments § 288 a, page 523. Defendant concedes he is entitled to no relief unless the judgment was void, not merely voidable.

II. Was the judgment void? If the original notice was so defective as to amount to no notice the judgment must be deemed void. But it is merely voidable if the defects in the notice are mere irregularities which do not prevent its constituting legal notice to defendant. Krueger v. Lynch, 242 Iowa 772, 773, 48 N.W.2d 266, 267; Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919; 49 C.J.S. Judgments § 24 g, page 61.

Restatement, Judgments, section 6, says: 'A judgment is void if there is a failure to comply with such requirements as are necessary for the exercise of power by the court.' Comment b under this section states the test of whether failure to comply with procedural requirements as to service of process renders the judgment void is whether the requirement is a condition precedent to the exercise of jurisdiction by the court. Section 8 and comments are to like effect. This is substantially the view we have taken in prior decisions.

Rule 50, R.C.P., provides in part that the original notice 'shall state either that the petition is on file * * * or that it will be so filed by a stated date, which must not be more than ten days after service. It shall notify defendant to appear * * * within the specified number of days after service required by rule 53 * * * and that unless he so appears, his default will be entered and judgment * * * rendered against him * * *.' (Emphasis added.)

Rule 53 provides that a defendant, like this appellant, served with original notice, not by publication, where copy of the petition is not attached to the notice and the petition is not on file when the notice is served 'shall appear within thirty days after the day such notice is served.'

As previously explained, the notice here states the petition will be filed by a stated date which was 17 days after the day of service. The petition was actually filed 14 days after service. Although the notice does not specify the number of days after service that defendant must appear, it does require appearance on or before noon of the second day of the next term. This was only 25 days after service. If the second day of the term were in fact at least 30 days after service we think failure to specify, in terms, the number of days after service in which appearance was required would not be a serious defect. The appearance date as stated in the notice was less than the 20 days contemplated by rules 50, 53, after the specified date of filing the petition and less than 20 days after its actual filing. Judgment was taken less than 30 days after service, less than 20 days after the specified date or filing the petition and less than 20 days after its actual filing There is at least one other defect, of a less serious character, in the notice. It does not contain the address of plaintiff's attorney who signed it as required by the part of rule 50 not quoted above.

We are aware of the present tendency...