Millisack v. O'Brien

• Decision Date: 15 June 1937
• Docket Number: 43736.
• Citation: 273 N.W. 875,223 Iowa 752
• Parties: MILLISACK et al. v. O'BRIEN.
• Court: Iowa Supreme Court

273 N.W. 875

223 Iowa 752

MILLISACK et al. v. O'BRIEN.

No. 43736.

Supreme Court of Iowa.

June 15, 1937

Appeal from District Court, Wapello County; George W. Dashiell Judge.

This is an action to enjoin defendant from levying an execution on plaintiffs' real estate. From the action of the lower court in overruling defendant's motion to dissolve a temporary injunction issued, defendant appeals.

Affirmed.

Gilmore, Moon & Bannister, of Ottumwa, for appellant.

Gillies & Schaefer, of Ottumwa, for appellees.

KINTZINGER, Justice.

On or about November 26, 1926, Nona Harden O'Brien, appellant herein, obtained a decree of divorce in an action against John Edward O'Brien, in which she obtained custody of three minor children, and an order directing said O'Brien, the defendant, to pay the clerk of the district court of Wapello county the sum of $35 per month for the support of said minor children. The decree of divorce and order for alimony provides more specifically as follows:

" It is * * * ordered, adjudged and decreed that the plaintiff be, and * * * is hereby divorced from the defendant, * * * and * * * is hereby decreed to have the custody * * * of * * * three minor children. * * *

It is further ordered, adjudged and decreed that the defendant * * * pay * * * the Clerk of the District Court of Wapello County, Iowa, on the 25th day of November, 1926, the sum of Thirty-five ($35.00) Dollars and * * * on the tenth day of each month thereafter the sum of Thirty-five ($35.00) Dollars for the support of said children, * * * said sums so paid shall be turned over by the Clerk * * * to the plaintiff to be expended * * * for such care, maintenance and support, and the Clerk of this Court is authorized and directed to enter judgment in favor of the plaintiff and against the defendant for said sums so to become due at any time after the default in payment of same, and plaintiff shall be entitled to execution on said judgment when any installment or installments shall remain unpaid for a period of ten (10) days after the same shall have become due under the terms of this decree, and said judgment for * * * payments in default is hereby decreed to be a lien upon any interest the defendant may have or obtain in any real estate."

When the decree was originally presented to the court, the words " judgment is hereby entered," appearing therein were stricken out by the court, and the words in italics were inserted by the court.

The record shows that at the time said decree was entered on November 26, 1926, said John Edward O'Brien was the owner of certain real estate later levied upon by an execution issued under said decree as hereinafter stated.

The record also shows that the real estate so levied on was foreclosed by Alice O'Brien under two certain mortgages executed to her on January 9 and April 14, 1928, respectively, and that said real estate was sold under said foreclosure proceedings to said Alice O'Brien, who received a sheriff's deed therefor after the period of redemption had expired.

The record further shows that said Alice O'Brien died testate on December 23, 1934, devising said real estate to appellees, who are now the owners thereof.

On October 11, 1935, the clerk of the district court, at the request of appellant, issued an execution under said divorce decree, under which the sheriff levied upon said real estate for the purpose of recovering $3,120.

Thereafter, on October 15, 1935, this action was commenced by appellees against the appellant, Nona Harden O'Brien, for an injunction restraining her from levying upon or selling said real estate, upon the grounds that appellees are the absolute owners thereof, and that said decree is not, and never has been, a lien upon said real estate. Appellees, therefore, asked for and obtained a temporary writ of injunction restraining the sale of said real estate.

Appellant, in answer to said petition, alleges that said John Edward O'Brien was, on April 14, 1928, in default in the sum of $42.78 under the decree in the divorce case, and that the amount in default since that time has increased to $3,120, all of which constitutes a lien upon the real estate in question. Appellant also alleges that she was not made a party to the foreclosure proceedings referred to and is not bound thereby.

Appellant, therefore, filed a motion to dissolve the temporary injunction upon the grounds alleged in her answer, alleging that the decree in the divorce action became a vested lien upon the real estate in question.

On November 23, 1935, the motion to dissolve the temporary injunction was overruled by the court, and appellant appeals.

The question presented is whether or not the provisions of the divorce decree in relation to payments for support of the children constitute a judgment in such a sense that execution could be issued upon it before a judgment as authorized by the court was entered by the clerk after said installments became delinquent, and whether said decree became a lien upon the property owned by the defendant, John Edward O'Brien, at the time the decree in the divorce action was entered. Appellant contends that such decree constitutes a final adjudication of the rights between the parties, and as such is a judgment which became a lien upon any property owned by the defendant when entered.

In support of this contention, appellant relies upon Taylor v. Runyan, 3 Iowa, 474; Zeigler v. Vance, 3 Iowa, 528; Walker v. Walker, 93 Iowa, 643, 61 N.W. 930.

A careful examination of these cases, however, will disclose that the judgments entered therein were in fact final adjudications of the questions in litigation, because the exact amounts of the judgments therein rendered were set out and were specifically made a lien upon the defendant's real estate by the decree.

In Walker v. Walker, 93 Iowa, 643, loc. cit. 648, 61 N.W. 930, 932, strongly relied upon by appellant, this court said: " It is said by appellee that the record entry is not a ‘ judgment,’ within the usual meaning of the word. * * * The record determines that the plaintiffs shall pay the defendant $1,700, with interest, and creates a lien on plaintiffs' land to secure its payment . * * * We do not see how the court could have more fully granted the relief prayed. The language of the record is: ‘ It is further ordered, adjudged, and decreed that the said plaintiffs pay to the said defendant * * * seventeen hundred dollars,’ making the same a lien, and concluding with the order that ‘ said premises, * * * be sold to satisfy said judgment, together with costs.’ The record shows that an amount should be paid to satisfy a judgment. The record is certainly a final adjudication of the rights of the parties, and our law provides that ‘ every final adjudication of the rights of the parties in an action is a judgment." ’

It is obvious that the language of the decree in that case specifically provides that the defendant shall pay an amount certain, which was specifically decreed to be a lien on defendant's land, and therefore clearly constitutes a final adjudication, and judgment.

Appellees contend, however, that in the present case, the court in the divorce decree simply ordered payment of monthly amounts to the clerk for the support of plaintiff's children, and ordered and authorized a judgment to be...