Mahaska Cnty. State Bank v. Cruzen

• Decision Date: 15 December 1925
• Docket Number: No. 36806.,36806.
• Parties: MAHASKA COUNTY STATE BANK v. CRUZEN ET AL.
• Court: Iowa Supreme Court

200 Iowa 1258

206 N.W. 90

MAHASKA COUNTY STATE BANK

v.CRUZEN ET AL.

No. 36806.

Supreme Court of Iowa.

Dec. 15, 1925.

Appeal from District Court, Mahaska County; C. A. Dewey, Judge.

This suit was brought to foreclose a real estate mortgage. Edward Matthews was made a defendant on account of his claiming a mechanic's lien upon the mortgaged premises. He filed an answer and cross-petition. He did not serve notice of his cross-petition. The allegations of his cross-petition, however, were set up also by way of defense. Decree of foreclosure was entered finding that Matthews' lien was junior to the first mortgage of the plaintiff and to a mortgage of one of the defendants, but superior to other liens. The decree did not fix the amount of the Matthews lien and provided for no judgment upon it. Foreclosure of the mortgage was decreed, special execution issued, and the mortgaged property sold. After the decree was entered, Matthews filed a dismissal of his cross-petition. No entry of the dismissal was made in the district court record. Over six months later Matthews filed a withdrawal of his dismissal. This was entered in the court record. He then served original notice stating that he then had on file in the cause a cross-petition setting out a brief of its contents. There was no cross-petition on file, unless it was the one previously referred to. The plaintiff and other defendants moved to dismiss because there was no cross-petition on file, and because the one that had been on file had been dismissed and could not be revived by the service of original notice. On the hearing of the motion to dismiss, the pleadings and judgment in the independent suit brought by Matthews for foreclosure were introduced in evidence. The motion was sustained. Matthews appeals. Affirmed.Edward A. Schmidt and James G. Patterson, both of Oskaloosa, for appellant.

McCoy & McCoy, of Oskaloosa, for appellees Mahaska County State Bank and McKay Fansher Co.

John E. Lake, of Oskaloosa, for appellees A. E. and Mary Quaintance.

Devitt & Eichhorn, of Oskaloosa, for appellee Hollister Whitney Co.

MORLING, J.

[1][2] All the questions raised by the appellant in his opening argument have been already disposed of in the case of Matthews v. Quaintance (Iowa) 205 N. W. 361. Shortly before the submission of this appeal, the appellant filed an amendment to his abstract setting out the sheriff's return on the special execution in the case, and in his reply argument claims on this...