Hawkeye Ins. Co. v. Maxwell

• Decision Date: 08 April 1903
• Citation: 94 N.W. 207,119 Iowa 672
• Parties: HAWKEYE INSURANCE COMPANY v. CHARLIE MAXWELL et al., Appellants
• Court: Iowa Supreme Court

94 N.W. 207

119 Iowa 672

HAWKEYE INSURANCE COMPANY v. CHARLIE MAXWELL et al., Appellants

Supreme Court of Iowa, Des Moines

April 8, 1903

Appeal from Warren District Court.--HON. A. W. WILKINSON, Judge.

ON the 18th day of January, 1889, the defendants Maxwell gave a mortgage on the land in controversy to the defendant Reynolds. This mortgage was foreclosed on the 13th day of November, 1900, and on the 22d day of December, 1900, the land was sold under special execution to said Reynolds. On the 3d day of March, 1891, the plaintiff obtained a judgment against the Maxwells in Polk county, which was duly transcripted to Warren county March 10, 1891. An execution was issued on this judgment in November, 1900, which was levied on the land in question on the 1st of December following, and on the 5th day of January, 1901, the land was sold thereunder to the plaintiff. September 21, 1901, the plaintiff paid in to the clerk of the district court of Warren county the full amount necessary to redeem from the Reynolds foreclosure sale, and on the 24th of December demanded a certificate of redemption of the clerk, and a deed of the sheriff on his certificate of purchase. Both were refused, and on the same day the sheriff issued a deed to Reynolds on his certificate. Thereafter the plaintiff commenced proceedings under section 3843 of the Code, asking an order directing the sheriff to issue a deed to him. The application was heard, the order made, and the deed issued. Afterwards the plaintiff began an action of forcible entry and detainer against the parties in possession of the land. The defendants answered, putting in issue the title to the land, whereupon the cause was transferred to the district court, and tried as an equitable action. There was a judgment for the plaintiff. The defendants appeal from both the order and the judgment, and by agreement the appeals are submitted together.

Affirmed.

O. C Brown for appellants.

A. A McGarry for appellee.

OPINION

SHERWIN, J.

In view of the fact that the merits of the controversy between all parties were fully investigated and determined in the equity action, it does not seem very material whether the order directing the sheriff to make a deed to the plaintiff was based on proper proceedings or not, and we shall give the question but little attention. Section 3843 of the Code provides that "a judge's order may issue in vacation, directing any of the officers of the court in relation to the discharge of their duties." This provision appears under the head of "Motions and Orders," and is preceded by provisions designating the form of notice and method of service necessary to bring the matter before the judge. Section 3835, 3841. In Pickell v. Owen, 66 Iowa 485, 24 N.W. 8, an action of mandamus to compel an officer to act--it was held that the writ would not lie, because the section of the statute under consideration furnished a speedy and adequate remedy. See also, Herriman v. Moore, 49 Iowa 171. We think there was no error in the method of...