Newman v. Bowers

• Decision Date: 08 October 1887
• Citation: 34 N.W. 212,72 Iowa 465
• Parties: NEWMAN v. BOWERS ET AL
• Court: Iowa Supreme Court

34 N.W. 212

72 Iowa 465

NEWMAN v. BOWERS ET AL

Supreme Court of Iowa, Des Moines

October 8, 1887

Appeal from Creston Superior Court--HON. GEO. P. WILSON, Judge.

ACTION in equity to determine the title to real estate Judgment for the plaintiff, and the defendants appeal.

AFFIRMED.

John M Hays, John V. Campbell and P. S. Wickman, for appellants.

Henry Rickel and J. W. Bull, for appellee.

OPINION

SEEVERS, J.

In 1861 the legal title to the real estate in controversy was in Melissa V. Alexander, and the plaintiff claims under her. In said year it is claimed by the defendant that an action was commenced in which Levi Rike was plaintiff, and the said Melissa, her husband, and others, were defendants. The petition in that action, in substance, stated that the plaintiff therein had recovered a judgment in the state of Ohio against Perry Alexander, the husband of Melissa, and that he caused the real estate in controversy, specifically describing it, to be conveyed to her for the purpose of defrauding his creditors. The object of the action was to obtain a judgment on the Ohio judgment, and subject the real estate to the payment thereof. Such relief, it is claimed, was granted, and the land sold under a special execution to Levi Rike, and the same conveyed to him, under whom the defendants claim. The plaintiff insists that the court failed to obtain jurisdiction of either the subject-matter, that is, the real estate, or of said Melissa, and therefore the judgment, sale and subsequent conveyances of the real estate are void; and the object of this action is to have the same so declared, and the title to the real estate adjudged to be in the plaintiff. This is the only question we are required to determine, and the contention of the plaintiff is based on the following facts, which are not controverted:

When the petition in the action commenced by Levi Rike was filed and at all times afterwards, Melissa Alexander was a non-resident of the state of Iowa, and she was not served personally with notice of the pendency of the action, nor was the real estate in controversy attached or otherwise seized, so as to bring the same within the custody of the law, unless what we shall presently state had that effect. The original notice in said action was directed to the defendants therein, and notified them that a petition of Levi Pike had been filed in the proper court, and that they were required at a named time to appear and defend such action. An affidavit of the non-residence of the defendants in the action in which Levi Pike was plaintiff was filed, and the notice duly published as provided by law;...