Olmstead v. Nat'l Life Ins. Co.

• Decision Date: 08 December 1880
• Citation: 55 Iowa 742,7 N.W. 403
• Parties: OLMSTEAD v. NATIONAL LIFE INS. CO.
• Court: Iowa Supreme Court

55 Iowa 742

7 N.W. 403

OLMSTEAD

v.NATIONAL LIFE INS. CO.

Supreme Court of Iowa.

Filed December 8, 1880.

Appeal from Polk district court.

At the October term, 1878, of the Dallas district court, the defendant obtained a decree of foreclosure of a mortgage upon certain real estate. The mortgage was executed by John D. Rivers, who afterwards conveyed the mortgaged property to H. A. Olmstead. H. A. Olmstead conveyed to Willis Olmstead. He conveyed to Charles Olmstead, and said Charles conveyed to the plaintiff, James G. Olmstead. The original petition did not make any demand for personal judgment against James G. Olmstead. After the petition was filed, the defendant filed an amendment thereto, in which it was averred that Charles Olmstead conveyed the property to the plaintiff herein by warranty deed, and that said James G. Olmstead assumed and undertook to pay the said mortgage. In addition to the prayer in the original petition, it was asked in the amendment that a judgment be rendered against said James G. Olmstead for the amount of the mortgage.

Personal service of notice of the amendment was duly made upon James G. Olmstead. He failed to appear to the action, and judgment was rendered against him as prayed. The mortgaged property was sold on special execution, and, there being a balance of the judgment unpaid, a general execution was issued, and levied upon the property of James G. Olmstead. Thereupon he commenced this action in the Dallas district court to set aside the judgment against him, and alleged that the same was procured by fraud, and that he never in any way assumed the payment of said mortgage, and that he had no knowledge of the rendition of said judgment against him until after the close of the term of court at which it was rendered. The petition in this case was filed January 21, 1879. On the thirty-first day of March, 1879, the defendant filed a demurrer to the petition, and afterwards the cause was transferred to Polk county. On the trial the court refused to hear defendant on its demurrer until plaintiff had put all his testimony in. The defendant then declined to argue the demurrer, and filed an answer. The answer took issue upon the averments of the petition, and also contained other allegations. The defendant in its answer also asked judgment for the balance due on the mortgage with interest and costs, and “10 per cent. on said amount, under Code, § 3162, and for such other order as may be equitable.” Pending the trial the plaintiff offered to file a demurrer to the third and fifth divisions of the answer. Defendant objected, and the objection was overruled. The record then recites that “defendant, to cut off plaintiff's argument, withdraws division...