Hawkeye Ins. Co. v. Huston

• Decision Date: 08 February 1902
• Citation: 115 Iowa 621,89 N.W. 29
• Parties: HAWKEYE INS. CO. v. HUSTON ET AL.
• Court: Iowa Supreme Court

115 Iowa 621

89 N.W. 29

HAWKEYE INS. CO.

v.HUSTON ET AL.

Supreme Court of Iowa.

Feb. 8, 1902.

Appeal from district court, Polk county; Chas. A. Bishop, Judge.

Action in equity asking the cancellation of an alleged void judgment rendered in the district court of Jones county, Iowa, and to enjoin execution thereon. Reversed.Milton Remley and I. M. Earle, for appellants.

Read & Read and J. B. Johnson, for appellee.

WEAVER, J.

On February 22, 1894, the defendant D. P. Huston, being the holder of a policy of insurance in the defendant company, filed his petition in the district court of Jones county, alleging a loss under said policy, and asking a recovery thereon. The policy had been issued through the agency of one W. H. Gordon, at Olin, in Jones county; but, Gordon having died before the alleged loss, service of the original notice upon the insurance company was had or attempted by serving the same upon one Rhodes, who was its agent at Anamosa, in the same county. The company and its officers undoubtedly had actual knowledge of the pendency of the action and of the proceedings therein, but, believing the service ineffectual, did not appear thereto, and in September, 1894, default and judgment were entered for the amount of Huston's claim. In July, 1896, Huston assigned the judgment to the defendants Johnson, who caused execution to be issued thereon and placed in the hands of the sheriff of Polk county for collection. Soon thereafter the company instituted this action to enjoin the execution and cancel the judgment as having been rendered without jurisdiction. Before notice of such action was served, the assignees of the judgment filed a motion or application in the original proceeding in Jones county to confirm said judgment and declare the same valid, and notice thereof was duly served upon the company, which again refused to appear, or in any manner recognize the jurisdiction of the court of that county. On December 8, 1896, the district court of Jones county, acting upon the motion or application above mentioned, entered an order or judgment reciting the entry of the judgment theretofore rendered against the company, and declaring the same “approved, affirmed, and a valid subsisting judgment against said defendant.” These facts are conceded, or, if not conceded, are clearly established by the evidence. From this basis therefore, we proceed to consider the questions discussed by counsel so far as necessary to a determination of the appeal.

1. We first notice the contention of the appellee that there is no showing of any judgment in the court below from which an appeal can be taken. An examination of the abstracts filed discloses the findings of the trial court in full, and it is further stated, in substance, that judgment was duly entered in accordance therewith. This statement being undenied, it was unnecessary to set out the record entry in hæc verba. We think the abstract sufficient.

2. The appellants challenge the jurisdiction of the district court of Polk county to entertain an action to enjoin and cancel a judgment rendered in the district court of Jones county. As this objection, if well founded, renders the discussion of other propositions entirely futile, it demands our careful consideration. By the Revision of 1860, it was provided: “Sec. 3778. When proceedings in a civil action are sought to be enjoined, the suit must be brought in the county where such proceedings are pending.” When carried into the Code of 1873, this section was amended to read as follows: “Sec. 3396. When proceedings in a civil action, or on a judgment or final order, are sought to be enjoined, the suit must be brought in the same county and court in which such action is pending or the judgment or order was obtained.” (The italics indicate the words added to the original section.) In the Code of 1897 this provision was readopted without change of language. See section 4364. The meaning of this statute does not seem to be obscure, but the adjudicated cases more or less directly involving its interpretation and application are by no means harmonious. It will be observed that prior to the Code of 1873 the law required one who sought to enjoin proceedings in a civil action to seek his remedy in the county where such action was “pending.” This left it in doubt whether, after judgment or final order had been entered, the action was still to be considered as “pending,” within the meaning of the statute. That doubt was removed by the Code of 1873, as we have above noted, and thereafter an injunction to restrain proceedings upon a judgment was required to be brought not only in the same county, but in the same court “in which the judgment was obtained.” Prior to 1873, this court in several cases held that the enforcement of a void judgment rendered in an action at law would be enjoined, and the judgment canceled by suit in equity. Bonsall v. Isett, 14 Iowa, 309;Givens v. Campbell, 20 Iowa, 79;Newcomb v. Dewey, 27 Iowa, 381;Connell v. Stelson, 33 Iowa, 147. But in every case of the kind, so far as we have observed, the proceeding to enjoin or to cancel was begun in the same county where the judgment complained of was rendered. After the amendment of 1873, the first case of this character decided appears to have been Lockwood v. Kitteringham, 42 Iowa, 257. The plaintiff there began her action in equity in the district court of Harrison county, alleging that the defendant had procured a pretended judgment against her in the circuit court of the same county, that such judgment was absolutely void for want of jurisdiction, and asking to enjoin execution therein. The district court having denied the relief prayed, this court affirmed its ruling, citing said section, and holding that the circuit court where the judgment was rendered had exclusive jurisdiction to entertain injunction proceedings. Next in order is Anderson v. Hall, 48 Iowa, 346, a case which is in all essential respects like the one at bar. A judgment had been rendered in Palo Alto county, and transcript and execution issued thereon were sent into Emmett county for collection. The judgment defendant, a resident of Emmett county, sued out an injunction there, alleging that the judgment was absolutely void for want of jurisdiction, and the lower court granted the relief prayed. On appeal to this court that order was reversed. In delivering the opinion of the court, Seevers, J., cites the statute and the Lockwood Case as decisive of the question; saying: “The circuit court of Emmett county had no jurisdiction of the subject-matter, and consent, even, never confers jurisdiction in such case. Besides this, if Code 1873, § 3396, is compared with the corresponding section of the revision (3778), we think no other rule would carry out the intent of the change made. The latter section only required proceedings to restrain a civil action to be brought in the county where the action or proceedings were pending.The Code extended this to proceedings under a judgment or final order, and requires the injunction to be brought in the county and court where the action is pending or the order or judgment was obtained. The Emmett circuit court had no power to issue an injunction restraining the execution in question, nor had it power to set aside a judgment rendered in the Palo Alto circuit court.” These authorities would seem to be decisive against the position of the appellee, unless it be found that the decisions cited have since been overruled, or we be now convinced that they are wrong in principle, and should be no longer followed. Proceeding, then, with our investigation, we next find the same subject treated in Bennett v. Hanchett, 49 Iowa, 71. Here the plaintiff, by suit in the Bremer county district court, sought to enjoin an execution issued from the Mitchell county district court, and sent into the former county for collection. Day, J., pronouncing the decision of his court, cites both the Lockwood and Anderson Cases, and says the district court “did not err in sustaining the demurrer to the petition.” Again, in Grattan v. Matteson, 51 Iowa, 622, 2 N. W. 432, we have a case where suit was brought in the district court to enjoin execution upon an alleged fraudulent and void judgment rendered in the circuit court of the same county, and on appeal to this court we held the district court to be without jurisdiction to entertain the action, and once more expressly approved and followed the Anderson Case in its interpretation of section 3396 of the Code of 1873. This authority also meets and disposes of the point made by appellee herein that, where the judgment is absolutely void, it is no judgment, and therefore does not come within either the letter or the spirit of the statute restricting injuncture proceedings to the county and court where the so-called judgment was obtained. The court says: “It is claimed that section 3396 is not applicable, because it is alleged the judgment in question is void, and hence no judgment. But it can be determined that the judgment is void only by judicial investigation. In form there is a judgment in the Winneshiek circuit court against John and Alexander Laurence, which is a lien upon the property in controversy. In Anderson v. Hall, 48 Iowa, 346, this section was applied to a proceeding to enjoin an execution upon a judgment alleged to be void. That case is decisive of this.” Insurance Co. v. Granger, 62 Iowa, 273, 17 N. W. 504, was an action to enjoin and cancel a void judgment, and was brought in the county and court where the judgment sought to be avoided was rendered. In Arnold v. Hawley, 67 Iowa, 313, 25 N. W. 259, we find a holding which is wholly at variance with the interpretation placed by preceding cases upon the statute above quoted. The plaintiff there began his action in the district court of Webster county to enjoin an alleged void judgment rendered in the circuit court of the same county, and this court then upheld...