John J. Wilson & Co. v. Baker

• Decision Date: 04 December 1879
• Citation: 3 N.W. 481,52 Iowa 423
• Parties: JOHN J. WILSON & CO., APPELLEES, v. O. H. BAKER, APPELLANT, AND TRUSTEES OF ALGONA COLLEGE.
• Court: Iowa Supreme Court

52 Iowa 423

3 N.W. 481

JOHN J. WILSON & CO., APPELLEES,

v.O. H. BAKER, APPELLANT, AND TRUSTEES OF ALGONA COLLEGE.

Supreme Court of Iowa.

Filed December 4, 1879.

Appeal from Kossuth district court.

This action is brought to declare void a judgment held by O. H. Baker, and also judgments held by other parties defendants, and to decree them juuior and inferior to a judgment held by the plaintiff to set aside and cancel a sheriff's sale to O. H. Baker, and to restrain, by injunction, the sheriff from executing a deed to him. The defendant O. H. Baker moved the court that he be dismissed from the action for the reason that the cause of action against him was improperly joined with causes of action against the other defendants. Afterwards the defendant Baker filed a demurrer to the petition. It was stipulated that, pending the hearing on the demurrer, the defendant might file his answer, and that the evidence might be submitted, and the cause taken under advisement by the court without the waiver of the questions presented by the demurrer. The defendant thereupon answered, and the cause was submitted to the court upon an agreed statement of facts. The court overruled the defendant's motion and demurrer, declared the plaintiff's judgment paramount to the judgment of the defendant Baker, and decreed that the sheriff's sale to the defendant Baker, in satisfaction of his judgment, be set aside. The defendant Baker appeals.Maxwell & Witter and J. H. Hawkins, for appellant.

George E. Clark, for appellee.

DAY, J.

1. The record does not disclose that any defendant, other than O. H. Baker, was served with notice, or made defence. He moved the court that he be dismissed from the action, and that so much of the cause of action as relates to him be stricken from the petition, for the reason that said cause of action is improperly joined with the causes of action against the other defendants, in violation of chapter 7, of title 17 of the Code. The defendant was not, for the reasons stated, entitled to be discharged from the action. If causes of action against other parties were improperly joined with the cause of action against him, it is probable that he would have been entitled to have the other causes of action stricken from the petition against him, under the provisions of section 2632 of the Code. The motion was properly overruled.

2. The questions presented by the demurrer are involved in the final hearing upon the agreed statement of facts. The rulings upon the demurrer, therefore, need not be considered.

3. The agreed statement upon which the cause was submitted shows the existence of the following facts: On the thirty-first day of December, 1870, there was organized at Algona, under the laws of Iowa, a corporation by the name and style of the “Trustees of the Algona Seminary.” On the thirty-first day of May, 1873, the persons whose names are attached to the articles of incorporation above named, together with other persons, signed and had copied upon the records of Kossuth county a paper purporting to be articles of incorporation of an association, under the name of “The Trustees of Algona College,” but this paper was never acknowledged as required by section 1095 of the Code of 1873. On the seventeenth day of May, 1873, at a meeting of the board of trustees of Algona Seminary, the annual meeting was changed from the Monday preceding the last Saturday in June to the twenty-fourth day of May, and D. H. Hutchins, a member of the board, gave notice that he would offer for adoption, at the annual meeting, amended articles of incorporation. On the twenty-fourth day of May, 1873, the board met and adjourned to May 31st. On the thirty-first day of May, 1873, the board met and adopted the articles of incorporation before presented by Hutchins, which are the same as the paper above referred to as signed on the thirty-first day of May, and recorded, but not acknowledged. At the meeting, May 31, 1873, the secretary was directed to notify the trustees of Algona College that a meeting of said board would be held June 14, 1873. Since May 31, 1873, the defendant, “The Trustees of Algona College,” has acted and done business as such, and the defendants Mitchell, Stacy, Ingham, Jones, Robinson, Smith, Hutchins, Read, Potter, Lemon, Loper, Barr, Walker, Williams, Walker, Cary, Omsley, Horton and Rowen are the acting officers and trustees thereof.

On the fifteenth day of August, 1870, Lewis H. Smith conveyed to the “Trustees of Algona Seminary,” for the express purpose of erecting thereon a building to be used for school or seminary purposes only, a certain tract of land containing 784 rods. On the fifth day of September, 1873, the said Smith executed a quitclaim of said tract of land, together with a small additional tract, in all containing 854 square rods, to “The Trustees of Algona College.”

In August, 1870, the trustees of Algona Seminary contracted with Yemans & Bongey to erect on the real estate above described certain buildings and other improvements, and furnish the material therefor. The plaintiffs furnished said Yemans & Bongey the lumber and materials with which said improvements were made, and Yemans & Bongey turned over to plaintiffs a warrant dated January 20, 1871, for $1,101.11, in payment for said lumber and materials, which warrant they had received from the trustees of Algona Seminary on their contract. Plaintiffs' original judgment against the trustees of Algona College was obtained on said warrant on the fourteenth day of October, 1874, in the Kossuth district court. By omission the clerk failed to make any record of the same, except an entry on the judgment docket of said court. On the sixth day of May, 1876, plaintiffs had said cause re-docketed, and a final judgment entered in due form against the “Trustees of Algona College” for...