Home Sav. Bank of Slater v. Klise
| Decision Date | 22 November 1927 |
| Docket Number | No. 38553.,38553. |
| Citation | 216 N.W. 109,205 Iowa 1103 |
| Parties | HOME SAV. BANK OF SLATER ET AL. v. KLISE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Jos. E. Meyer, Judge.
The nature of the case, and the requisite facts, are stated in the opinion. Defendant appeals. Reversed.H. E. Klise and Scott M. Ladd, both of Des Moines, for appellant.
Bert B. Welty, of Nevada, Iowa, and Lee & Garfield, of Ames, for appellees.
The appellant owned a farm in Polk county, incumbered by two mortgages, one in favor of the Iowa Loan & Trust Company, which was the first lien, and another held by the appellees, which was the second lien thereon. An action for the foreclosure of the second mortgage was begun March 31, 1924. A similar action with reference to the first mortgage was instituted April 19, 1924. The appellees were made parties to the suit for the foreclosure of the mortgage having priority, and they were legally served with an original notice of said action, and appeared and filed answer. On July 31, 1924, judgment and decree of foreclosure in said action was rendered. On September 13, 1924, the real estate was sold on special execution to make the amount of said judgment.
On December 3, 1924, there was rendered a judgment and decree of foreclosure of the second mortgage, and on June 20, 1925, the said real estate was sold on special execution, “subject to the rights of the first mortgagee, the Iowa Loan & Trust Company,” to make the amount of said judgment. The appellees were the purchasers at said last execution sale, having bid the full amount due on the judgment, and the execution was returned satisfied, and the judgment canceled.
On September 11, 1925, the appellees filed herein a motion, in which they allege the facts concerning the obtaining of the judgment and the decree of foreclosure, and the issuance of the writ of special execution, and the sale of the real estate to them thereunder, and further aver therein, in substance, that at the time the plaintiffs purchased the same, at sheriff's sale, they believed that their judgment was a lien upon the premises, but they have recently learned that the lien had been cut off by the foreclosure of the prior mortgage thereon, and the sale on execution of the real estate was more than nine months before the sale of the real estate under the plaintiffs' mortgage; that they were ignorant of the fact as to said prior sale when they purchased the property at sheriff's sale, and believed that there had been no sale under the prior mortgage, and believed that their judgment was a lien upon said premises, and that the sheriff was authorized to sell same to make the amount of their judgment; that by reason of the foregoing facts the equity of redemption of these plaintiffs had expired, and said sale was void; and they asked the court to set aside the record showing there was a sale of the said premises, and that their judgment be restored against the defendant, as though no sale was had, and that the clerk of this court be directed to issue execution upon their judgment, whenever so requested by the appellees. The appellant filed resistance to said motion, and a hearing was had before the court, and on January 9, 1926, the court sustained the motion, granting the relief asked by the appellees.
On January 22, 1926, the appellant filed a pleading, denominated “motion to reconsider order,” and she therein asks that the order of court of January 9, 1926, be reconsidered, “and that the same be revised, to read that the plaintiffs' motion be overruled.” She asks therein for the relief for the following reasons: (1) That the sale of the real estate on the first mortgage, on September 13, 1924, did not divest the debtor of the title; (2) that the plaintiffs' judgment, rendered on December 3, 1924, became a lien upon defendant's interest in said real estate; (3) that the interest of the defendant in said real estate at the time of plaintiffs' sale was a right of redemption; (4) that plaintiffs' mortgage, and the judgment thereon, was subject to the prior mortgage, and they had personal knowledge that said mortgage was being foreclosed; (5) that caveat emptor applies to execution sales. The court did reconsider said ruling, heard the parties fully, and long afterward, on December 27, 1926, made of record the following order:
“Motion to consider ruling on motion to set aside judgment comes on for hearing, and, the court being fully advised in the premises, said motion is overruled.”
[1] The first thing demanding our consideration is a motion by the appellees to dismiss the appeal, it being claimed by them that no appeal was taken within four months after the order appealed from was entered; that no motion for new trial was filed within the time allowed by statute; that the alleged attempt to appeal was ineffective, because, as claimed, the notice of appeal was not directed to the appellees, nor to any person as attorneys for them, and was not served upon the persons to whom the same was directed.
The caption of the notice of appeal, as to parties, is identical with the caption herein, and said notice is directed to Lee & Garfield, or to Bert B. Welty, attorneys, and to W. D. Baldwin, clerk of the district court of Polk county, Iowa. It is therein stated that the appellant has appealed from the judgment and ruling of the said district court rendered against her in said cause on the 9th day of January and December 27, 1926. Service of said notice of appeal was accepted on January 22, 1927, “Welty & Soper and Lee, Steinberg & Walsh, Attorney for Plaintiffs,” and by the clerk on January 31, 1927.
“An appeal is taken and perfected by the service of a notice in writing on the adverse part, his agent, or any attorney who appeared for him in the case in the court below, and also upon the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defining such part.” Section 12837, Code 1924.
It will be observed from the foregoing statute that all that is required, is that the notice be served on any attorney who appeared for the appellee in the case in the court below. The motion of appellees, hereinbefore referred to, was signed, “Lee & Garfield, Bert B. Welty, Attorneys for Plaintiffs.” The order of January 9, 1926, hereinbefore mentioned, contains the statement, “the plaintiffs appearing by their attorneys, Bert B. Welty and Lee & Garfield.”
On appellees' amendment to abstract filed herein, we find on the title page, “Welty & Soper, Lee, Steinberg & Walsh, Attorneys for Appellees.” On appellees' brief and argument, we also find on the title page, “Bert B. Welty and Lee, Steinberg & Walsh, Attorneys for Appellees.” The notice was properly directed to Bert B. Welty and Lee, attorneys. The names of both Welty and Lee appear in the acceptance of service, and they describe themselves as attorneys for plaintiffs, and both of them were attorneys for plaintiffs in the lower court. If the notice be directed to, and service of same be had on any one of the attorneys for the appellee in the court below, it is sufficient. It is apparent from the files in the lower court, and in this court, that the notice of appeal and service of same are sufficient.
[2] It is further contended by the appellees that the appeal from the judgment or order of January 9, 1926, was not taken in time. Appeals from the district court may be taken within four months from the date of the entry of record of the judgment or order appealed from and not afterwards; but, when a motion for new trial has been filed, such time for appeal shall be automatically extended, so as to permit the same at any time within 60 days after the entry of the ruling upon such motion. Section 12832, Code 1924.
It is manifest that the notice of appeal was not served within 4 months after the order of January 9, 1926. The appellees contend that appellant's motion filed January 22, 1926, is not a motion for new trial. The abstract states:
“Thereupon the court did consider said ruling and heard the parties hereto fully.”
Regardless of what it was called, it was so considered by the parties and the court, and has served the purpose of a motion for a rehearing or new trial.
[3] The appellees raise the further...
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