Palmer v. McCormick

• Decision Date: 01 January 1886
• Citation: 28 F. 541
• Parties: PALMER v. McCORMICK and another.
• Court: U.S. District Court — Northern District of Iowa

28 F. 541

PALMER v. McCORMICK and another.

United States Circuit Court, N.D. Iowa, Western Division.

1886

J. W Cory, for complainant.

W. H Baily, for defendants.

SHIRAS J.

From the averments of the bill filed in this cause, it appears that on the eighth of July, 1871, a patent in due form was issued by the United States to complainant for certain realty, situated in Dickinson county, Iowa; that on the eighth day of March, 1876, complainant executed a mortgage on said realty to secure an indebtedness due to C. H. & L. J McCormick; that on the thirty-first of March, 1877, the mortgagees brought an action to foreclose said mortgage in the district court of the state of Iowa, in and for Dickinson county, Iowa; that no personal service of notice of the bringing of suit was given to complainant; that complainant did not appear thereto, and had no knowledge of its pendency that at the May term, 1877, of said court, a decree of foreclosure by default was rendered against complainant, which in form was a personal judgment against complainant; that it was not shown or proved that complainant was at that time a non-resident of the state of Iowa, although in fact he was not a resident of Iowa at that time; that the affidavit of publication of the notice was insufficient, because it was made by one of the proprietors of the paper, instead of by the publisher, or his foreman; that under the decree rendered an execution was issued, and the property was, on the twelfth of June, 1877, sold to the mortgagees; that complainant has tendered the amount due on the mortgage, and therefore complainant prays that he may be allowed to redeem the property, and that the decree of foreclosure, the deed based thereon, and all subsequent conveyances, may be declared void, and be set aside.

To this bill a demurrer is interposed, on the ground that the allegations of the bill fail to show a case entitling complainant to the relief sought.

The principal question presented in argument by counsel is whether the district court of Dickinson county had jurisdiction of the foreclosure proceedings; the contention on part of complainant being that the decree of foreclosure rendered is absolutely void for want of jurisdiction, the grounds therefor being that complainant was a non-resident of Iowa when the suit in foreclosure was brought, and that a statute authorizing service by publication is unconstitutional; that, to confer jurisdiction, every requirement of the statute must be fully met; that the record of the foreclosure cause does not show, upon its face, that complainant was not a resident of Iowa when the suit was brought; and that the affidavit of publication was not made by the publisher of the newspaper, or his foreman, as required by the statute of Iowa.

Counsel for complainant assumes in his argument that the decree rendered in the foreclosure proceedings is, in effect, a personal judgment against complainant; and argues that such a judgment is void, when rendered against a non-resident upon service by publication only. The decree rendered is as follows:

'It is considered, adjudged, and decreed by the court that the plaintiffs, C. H. & L. J. McCormick, have and recover of and from the defendant, Jared Palmer, out of the mortgaged premises herein described, the sum of four hundred and eighty-seven 38/100 dollars, together with interest; * * * and that the mortgage mentioned in plaintiffs' petition be foreclosed, and the real estate therein described, or sufficient thereof, be sold to make said money, interest, and costs; and that special execution issue accordingly.'

The decree does not provide for a general execution, but, by its terms, is expressly confined to the realty in the mortgage described. In effect, it finds that there is a certain amount due to complainants from Palmer, and decrees that the same shall be made out of the mortgaged property by a sale thereof. Unless the court had the power to render such a decree upon a service by publication, made in accordance with the provisions of the statute, it would be impossible to foreclose a mortgage given upon realty in this state by a non-resident, unless the mortgagor chose to enter a voluntary appearance, or permitted service to be made upon him within ...