Sanxey v. Iowa City Glass Co.
| Decision Date | 20 April 1886 |
| Citation | 68 Iowa 542,27 N.W. 747 |
| Parties | SANXEY, TRUSTEE, v. IOWA CITY GLASS CO. (SAWYER, INTERVENOR.) |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Johnson district court.
Plaintiff brought this action to foreclose a deed of trust executed to him as trustee by the Iowa City Glass Company to secure the amount of certain negotiable bonds issued by the mortgagor. The intervenor was the owner of five of said bonds, and he filed his petition in intervention, alleging that said bonds were then due, and that certain third parties were liable thereon as guarantors; and that it was the intention of the trustee and his attorney, who was one of the guarantors, to deprive him of the benefits of the guaranty by bidding in the whole of the property covered by the trust deed for the benefit of all of the bondholders, for an amount sufficient to satisfy the indebtedness evidenced by the bonds; and thereby release the guarantors, and compel him, against his will, to become an owner of an undivided interest in said property; and he prayed for judgment against the glass company for the amount of said bonds, and for a decree of foreclosure; and that said judgment be made a lien upon an undivided one-sixth of the property, (the indebtedness due him being one-sixth of the whole amount secured by the trust deed;) and that the lien of the trustee and the other bondholders on that portion of the property be adjudged junior and inferior to his lien. After the filing of this petition, plaintiff filed an amendment to his petition, in which he alleged that the property covered by the trust deed was specially designed for the manufacture of pressed glassware; and that if it should be sold at ordinary sheriff's sale, the interests of the bondholders would be jeopardized, as, if sold in that manner, it would not probably sell for an amount sufficient to satisfy the indebtedness, although its real value was much greater than that; and he prayed that some special direction as to the manner of the sale and the care of the property be made by the judgment. The intervenor thereupon filed a paper denominated “Written Objections to the Relief Prayed in the Amended Petition,” in which it was alleged that, as far as his interest was concerned, the court had no power to grant such relief.
The district court dismissed intervenor's petition, and denied him any relief thereunder. It also entered judgment against the glass company for the amounts due the several bondholders; also foreclosing the trust deed, and directing the sale of the property on special execution, and empowering the trustee, in the absence of other adequate bidders at the sale, to bid in the property at its market value for the bondholders. From this judgment the intervenor appealed to this court, and, upon the hearing of the cause, the judgment was reversed. See 63 Iowa, 707, and 17 N. W. Rep. 429. When the procedendo was filed in the district court, plaintiff moved for leave to file an answer to the petition of intervention; also an amendment to his original petition. But this motion was denied, and judgment was entered in accordance with the opinion filed in the cause in this court. Plaintiff appeals.Milton Remley and Boal & Jackson, for appellant.
J. A. Edwards and S. H. Fairall, for appellee.
Appellee filed a motion in this court to dismiss the appeal on the ground that there was no service of the notice of appeal on the clerk of the district court. The record shows that the notice of appeal was presented to the deputy-clerk, who indorsed thereon the following acceptance of service:
“Due and legal service of the within notice accepted this twenty-eighth day of July, 1885.
+-------------------------------+
¦[Signed]¦STEPH. BRADLEY, Clerk.¦
+-------------------------------+
By R. A. KORAB, Deputy.”
An appeal to this court is taken by the service of a notice on the adverse party and the clerk. Code, §§ 3178, 3179. The language of the statute is that the notice shall be served on the clerk, and the questions raised by the motion are whether the requirement is complied with by a service on the deputy, and, if so, whether an acceptance by the deputy is a sufficient service.
We think both of these questions should be answered in the affirmative. It is provided by section 767 that, “in the absence or disability of the principal, the deputy shall perform the duty of his principal pertaining to his own office.” Under this provision the deputy may, under the circumstances prescribed, perform any of the duties pertaining to the office. During the absence or disability of the principal, he stands in the place of the principal, and any official duty performed by him is regarded as having been performed by the principal. It must often happen that owing to the absence or disability of the clerk it would be impracticable to serve the notice on him personally within the time allowed by the statute for taking the appeal, and, if the service may not be made on the deputy, it would follow in such cases that the right of appeal would be defeated by circumstances over which the party could have no control. The right is conferred by statute, and is regarded as an important and valuable right, and we cannot think that it was the intention of the legislature, when it created the provision making the service of the notice on the clerk an essential step in perfecting the appeal, that it should be defeated by his absence or disability to perform the duties of his office, and we prefer to accept a construction of the statute which will secure the right, rather than one which, in many cases, would defeat it.
Having regard, then, to the spirit, rather than the strict letter, of the law, we hold that the notice of appeal may properly be served upon the deputy during the absence or disability of the clerk. The statute makes no provision as to the manner in which the notice shall be served. We think, therefore, that it may be made by taking a written...
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