Omaha & St. L. Ry. Co. v. O'Neill

• Decision Date: 28 October 1890
• Citation: Omaha & St. L. Ry. Co. v. O'Neill, 81 Iowa 463, 46 N.W. 1100 (Iowa 1890)
• Court: Iowa Supreme Court
• Parties: OMAHA & ST. L. RY. CO. v. O'NEILL, SHERIFF, ET AL.

81 Iowa 463

46 N.W. 1100

OMAHA & ST. L. RY. CO.

v.O'NEILL, SHERIFF, ET AL.

Supreme Court of Iowa.

Oct. 28, 1890.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

This is an action in equity for an injunction to restrain the defendant O'Neill, who is sheriff of Pottawattamie county, from selling, at sheriff's sale, certain real estate and certain shares in a corporation, upon an execution issued upon a judgment rendered in Des Moines county district court, in an action in which one B. R. Westfall was plaintiff, and the Wabash, St. Louis & Pacific Railway Company was defendant. Said judgment is now the property of the defendants Polk & Hubbell. The ground upon which the plaintiff seeks the injunction is that the property levied upon is not the property of the defendant in execution, but that it is the property of the plaintiff. A preliminary injunction was issued as prayed, which, upon final hearing, was made perpetual. Defendants appeal.H. S. Priest and F. T. Hughes, for appellants.

Theo. Sheldon, for appellee.

ROTHROCK, C. J.

1. The first question arising upon the record is whether the court should have changed the place of trial to Pottawattamie county, in pursuance of a motion made by the defendant O'Neill. Counsel for appellants insist that the court erred in overruling the motion. Thomas O'Neill, the sheriff, is a resident of Pottawattamie county. The defendants Polk & Hubbell are residents of Polk county, and the judgment was rendered in, and the execution issued from, Des Moines county. The petition for an injunction was filed on the 5th day of March, 1888, and, on the 10th day of the same month, Polk & Hubbell filed their answer. On the 30th day of the same month, the defendant O'Neill filed a motion for a change of the place of trial. The defendants Polk & Hubbell did not join in this motion. O'Neill did not, at any time, file an answer in the case, and, on the final decree, he was adjudged to be in default for want of an answer. It is provided by section 2589 of the Code that, “if a suit be brought in the wrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demanded a change of place of trial to the proper county.” It is not pretended that O'Neill has any personal interest in the action. For the purposes of this case, he is a mere ministerial officer of the law, in a state of inaction, pending the litigation between the plaintiff and the defendants Polk & Hubbell, the real parties defendant. Polk & Hubbell filed the only answer that was filed before the motion for change of venue was made. The motion came too late to be of benefit to them, and the statute does not contemplate that a merely nominal party, without the concurrence of the real parties, may compel a transfer. The real question at issue was tried in the district court of Des Moines county by the real parties in interest, without objection, and this court is not called upon to determine for them whether it was tried in the proper county.

2. We come now to a consideration of the merits of the case. It involves but one ultimate question, which is whether the property levied upon is owned by the plaintiff, the Omaha & St. Louis Railway Company. The said plaintiff claims to be the owner, through the foreclosure of a mortgage dated February 15, 1879, a foreclosure sale thereunder, and a master's deed of the date of March 29, 1887, and a supplementary decree dated October 7, 1887. The defendants claim under a judgment recovered December 30, 1885, in the circuit court of Des Moines county, an execution issued from that court dated November 21, 1887, and a transcript of said judgment filed in Pottawattamie county, November 23, 1887, and a levy made December 1st in the same year. The property in dispute is situated in Pottawattamie county. It will be conceded for the purpose of this case that, if the transcript of the judgment had been filed in Pottawattamie county before the said foreclosure suit was commenced, the judgment would have been a lien upon the property. This concession is made to avoid a voluminous statement of the contents of certain deeds, mortgages, decrees of foreclosure, and other documents set out in the record. They are all immaterial to the vital question in the case. The mortgage under a foreclosure of which the...