Mosher v. McDonald & Co.
| Decision Date | 15 March 1905 |
| Citation | 102 N.W. 837,128 Iowa 68 |
| Parties | MAUD MOSHER and L. L. MOSHER, v. MCDONALD & CO., ET AL., and C. F. FRANCE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. JAMES A. HOWE, Judge.
ACTION to restrain the enforcement of a judgment. Decree for plaintiff, and defendant C. F. France appeals.
Affirmed.
A. A McGarry and George B. France, for appellant.
Bowen Brockett & Weldy, for appellees.
In 1875 a judgment was rendered by default, in the district court of Polk county, in favor of McDonald & Co. against Lemuel Mosher (or L. L. Mosher, as he is named in these proceedings), on a promissory note for $ 300, with interest and costs. In 1892 defendant France made some effort to induce Mosher to pay this judgment, but, failing, he caused execution to issue, claiming to be the owner under assignment from the trustees of McDonald & Co., who had become insolvent. In 1893 L. L. Mosher brought action against McDonald & Co., by publication, to restrain the enforcement of the judgment, on the ground that no service was had on him of the original notice in the action in which the judgment was rendered. The subsequent history of this proceeding by L. L. Mosher against McDonald & Co. is complicated, and there were collateral proceedings instituted in connection with the continuing attempts of France to enforce payment of the judgment, which need not be explained in detail. But in 1901 Maud Mosher, wife of L. L. Mosher, joined him with her in an action against McDonald & Co. and many other defendants, among them C. F. France, to restrain a sheriff's sale, under the original judgment, of certain real estate as that of her husband, which in fact belonged to her. With this action a continuation in some form of the proceedings in the prior injunction suit of L. L. Mosher against McDonald & Co. was consolidated, and by the decree appealed from, which was rendered in this consolidated action, the original judgment was canceled, set aside, and adjudged void, and further proceedings therein perpetually enjoined. Several questions of fact were involved in the issues tried, but, in the view we take of the case, only two of these need be considered.
I. Plaintiff sought to overcome the presumption in favor of the jurisdiction of the court rendering the original judgment against Lemuel Mosher by evidence which tended to show that he was never served with notice of the action, but as against the recital of personal notice in the judgment itself and the sheriff's return, which was introduced in evidence showing such service, we think the evidence introduced was not sufficient to make out a case for plaintiffs. The return purported to be made for the sheriff by one John Burkett, deputy, and the sheriff testified that Burkett was his deputy at that time, that the return was filled out in his (the sheriff's) own handwriting, and that the signature was in the handwriting of Burkett. The presumption in favor of the recital, of the judgment record, and regularity of official action are not overcome, in our judgment, by the parol evidence of Mosher and others that he was absent from the State at the time the return shows service to have been made. Ketchum v. White, 72 Iowa 193, 33 N.W. 627; Wyland v. Frost, 75 Iowa 209, 39 N.W. 241; Squires v. Jeffrey, 101 Iowa 676, 70 N.W. 730; ...
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