Peterson v. Gittings
| Decision Date | 24 January 1899 |
| Parties | SARAH A. PETERSON v. HENRY GITTINGS AND MARTHA C. GITTINGS, Appellants |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. WALTER I. SMITH Judge.
CREDITORS' bill to subject certain real estate to the payment of plaintiff's judgment. The trial court reserved to defendants a homestead in the property, but ordered that the remainder be subjected to plaintiff's claim. Defendants appeal.
Reversed.
Geo. W Hewitt for appellants.
W. H Killpack for appellee.
Appellee 's judgment was rendered by the superior court of the city of Council Bluffs. Section 18, chapter 143, Acts Sixteenth General Assembly, as amended by section 8, chapter 24, Acts Nineteenth General Assembly, provides that: (Superior court). The statutes with reference to filing transcripts of judgments rendered by justices of the peace provide that the clerk of the district court shall forthwith file the same and enter a memorandum thereof in his judgment docket, noting the time of the filing thereof, and, from the time of such filing, it shall be treated as a judgment rendered in the district court. The original petition in this case recited that a transcript of the superior court judgment had been filed in the office of the clerk of the district court, and that the same was of record in Judgment Docket 14, p. 87, of the district court records. In response to a demurrer, which was confessed, plaintiff filed, as an amendment to her petition, a certified transcript of the judgment rendered by the superior court. This so-called amendment bore this indorsement on the back thereof, in addition to the title of the case: These are all the filing marks appearing on this document. At the trial, plaintiff offered this transcript as proof of her judgment; and this was all the evidence that was offered to prove her right to attack the conveyance between Henry Gittings and his wife, Martha C. Manifestly, this does not show a judgment in the district court. If the transcript of the superior court judgment had been filed in accordance with the statutes before quoted, then the judgment stood as if it had been rendered by the district court, and could not be proven by certificate of the clerk of the superior court. There is no evidence that this transcript was ever filed, except as an amendment to plaintiff's petition, and no showing that a memorandum thereof was ever entered upon the judgment docket of the district court.
This brings us to the question of plaintiff's right to maintain a creditor's bill in the district court upon a judgment rendered by the superior court. It clearly appears from the acts of the legislature hereinbefore referred to that judgments of a superior court are not liens on real estate, and that real property cannot be levied upon or sold on process issued out of such court. Now, the general rule is that a creditor must have a lien, or be in a situation to perfect a lien, before filing a bill in equity to subject real estate to the payment of his claim. Buchanan v. Marsh, 17 Iowa 494; Goode v. Garrity, 75 Iowa 713, 38 N.W. 150; Faivre v. Gillman, 84 Iowa 573, 51 N.W. 46; Fur Factory v. Teabout, 104 Iowa 360, 73 N.W. 875; Wait Fraudulent Conveyance (3d ed.), section 73; Bump Fraudulent Conveyance (2d ed.), p. 521. There are some exceptions to this rule, but the case does not come within any of these exceptions. Appellee relies upon a line of cases holding that an action in the nature of a creditors' bill may be maintained in a state court upon a judgment rendered by the federal court; citing Bank v. Sloman, 42 Neb. 350 (60 N.W. 589), to which we might add the following: Bullitt v. Taylor, 34 Miss. 708; Brown v. Bates, 10 Ala. 432; Bridge Co. v. Fowler, 55 Kan. 17 (39 P. 727). There is conflict in the authorities on this proposition, however. See Tarbell v. Griggs, 3 Paige 207; Winslow v. Leland, 128 Ill. 304 (21 N.E. 588); Steere v. Hoagland, 39 Ill. 264; and cases cited in Wait Fraudulent Conveyance (3d ed.), under section 78. Without determining the proper rule to be applied to such a state of facts, it is enough to say that those cases which hold to the affirmative of the proposition do so upon one or all of these grounds: (1) That a judgment of the federal court sitting within the state in which the action of the state court is invoked is a lien upon the real estate sought to be reached by the creditors' bill; (2) that judgments rendered by federal courts are treated as domestic judgments were rendered; (3) that plaintiffs in these judgments are entitled to the same remedies, by attachment, execution, or other means, as plaintiffs in judgments rendered by state courts. None of these reasons are applicable to judgments rendered by superior courts, unless it be the second, and that is not sufficient ground for sustaining a creditor's bill based upon a judgment rendered by such a court; for, as we have seen, the creditor must, as a general rule, have acquired a lien on the specific property, or be in a position to perfect a lien thereon, and subject it to the payment of his judgment, upon the removal of the obstacle presented by the fraudulent transfer. In Crippen v. Hudson, 13 N.Y. 161, the supreme court of that state squarely holds that an action in the nature of a creditors' bill cannot be sustained upon a judgment rendered by a justice of the peace which has not been docketed in the county clerk's office so as to become a lien on real estate; one of the reasons for its holding being that the creditor had not exhausted his legal remedies until the judgment had been docketed in the county clerk's office. See, also, Dix v. Briggs, 9 Paige 595; Coe v. Whitbeck, 11 Paige 42; Brinkerhoff v. Brown, 4 Johns. Ch. 671; Clements v. Waters, 90 Ky. 96 (13 S.W. 431); Mansfield v. Wilkinson (Ky.) 16 Ky. L. Rep. 276, 27 S.W. 808. The case of Bailey v. Burton, 8 Wend. 339, which is often cited to sustain the contention that a judgment of a justice of the peace will support a creditors' bill in the district court, related to personal property which had been...
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