Iowa Savings & Loan Ass'n v. Chase
| Decision Date | 14 October 1902 |
| Citation | 91 N.W. 807,118 Iowa 51 |
| Parties | IOWA SAVINGS & LOAN ASSOCIATION, Appellant, v. D. C. CHASE AND FLORENCE R. CHASE |
| Court | Iowa Supreme Court |
Appeal from Hamilton District Court.--HON. W. S. KENYON, Judge.
ACTION in equity to enjoin the enforcement of two certain judgments and have them annulled, canceled, and set aside on the ground that they were rendered without jurisdiction. A demurrer to the petition was sustained, and, plaintiff electing to stand upon its pleading, judgment was rendered for defendants, from which plaintiff appeals.
Reversed.
Baily & Stipp for appellant.
D. C Chase for appellees.
The proceedings resulting in the judgments which plaintiff assails were as appears by the petition, substantially as follows: Two suits for foreclosure of mortgages were instituted in Hamilton district court by the plaintiff in this action against the defendants in this action, and in each suit judgment of foreclosure, with attorney's fees and other costs, was rendered against the defendants in February, 1896. These judgments, with the costs taxed in the two actions respectively, were fully paid by the defendants prior to the 15th day of June, 1898, and satisfied and discharged of record, and the cases appeared from the record therein to be fully disposed of. In September, 1898,--more than two years after the rendition of the judgments, and four months after their payment and satisfaction,--defendants filed in the Hamilton county district court, entitled in each of the two cases, respectively, motions to retax costs therein, alleging that certain items of costs,--among others the items for attorney's fees allowed,--were improperly taxed to defendants, and alleging that defendants, by the issuance of execution, had been obliged to pay such costs, which they had done under protest, without having an opportunity to have the same retaxed, and asking that such costs as had been "erroneously taxed and paid by them be refunded, as the law requires." To this motion plaintiff entered no appearance, and in April, 1899, the court sustained said motion, and caused the following entry to be made on the records of the court in each of said cases: "Be it remembered that on this day, it being the second day of the April term of the district court of said county, the above entitled cause came on for hearing on a motion of the defendants to retax the costs in said cause, D. C. Chase appearing for defendants, and Geo. Wambach, one of the attorneys of record for the plaintiff, being present in court, and, the court finding a trial notice has been regularly filed, the motion to retax costs was sustained in all the assignments of the same, and judgment entered accordingly, and the court finds that the items complained of were erroneously assessed as costs, and, as they have been paid by the defendants, the clerk of the court is directed to collect the said costs so erroneously paid, and return them to the defendants, and on their failure to do so on receiving due notice a special execution shall be issued in favor of the defendants against the plaintiffs for the costs erroneously assessed, to wit; to all of which the plaintiff excepts." Entries were made in the judgment docket showing judgment in each of the cases for the defendants against the plaintiff for the respective amounts of costs found to have been erroneously taxed and paid, and it is these judgments which plaintiff seeks to have canceled on the ground that they are void, and appear to be liens on its real property, and constitute a cloud thereon, hindering plaintiff from making sale thereof; and that it has no plain, speedy, and adequate remedy at law.
I. Plaintiff's petition does not ask for vacation of the judgment and new trial, as provided in Code, sections 4091-4094, but invokes the aid of a court of equity as against judgments alleged to be void for want of jurisdiction, and we think that the sections of the Code just referred to have no application. It may be that, so far as the statutory...
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