Schlisman v. Webber

• Decision Date: 24 October 1884
• Citation: 21 N.W. 209,65 Iowa 114
• Parties: SCHLISMAN, ASSIGNEE, ETC., v. WEBBER AND OTHERS.
• Court: Iowa Supreme Court

65 Iowa 114

21 N.W. 209

SCHLISMAN, ASSIGNEE, ETC.,

v.WEBBER AND OTHERS.

Supreme Court of Iowa.

Filed October 24, 1884.

Appeal from Carroll circuit court.

This is an appeal from an order of the circuit court sustaining a motion to set aside a sale on execution of certain real estate. The facts of the case are stated in the opinion.George W. Paine, for appellant.

Bowen & Cloud, for appellee.

REED, J.

A judgment was rendered by a justice of the peace in favor of D. Wayne & Co., and against F. Webber, N. Webber, and A. Schlisman, for $148.60. The action in which said judgment was rendered was on a promissorynote executed by the defendants F. Webber and N. Webber. Defendant Schlisman was liable as an indorser of said note. All the defendants were served with notice of the pendency of said suit. Schlisman appeared and defended against the claim, but the Webbers made default. It is not shown, by any record made by the justice, that there was any consent by the parties that he should take jurisdiction of the case. A transcript of the judgment was filed in the office of the clerk of the circuit court, and execution was issued thereon, and the property in question was sold on said execution. When the transcript was filed in the clerk's office, the property belonged to the defendant F. Webber, but before the execution sale he sold and conveyed it to Frank Kullenberg, who had no actual notice of the existence of the judgment when he bought. The judgment, in the mean time, had been assigned by Wayne & Co. to Schlisman, and he was the purchaser at the sheriff's sale. After the execution sale, Kullenberg filed his motion to set said sale aside on the following grounds: “(1) That the applicant is an innocent purchaser of said property, and that he had no notice of the pretended claim which plaintiff alleges to have against said property, and, as against him, the judgment is no lien on the property; (2) that although said judgment was filed in the judgment docket at the time he purchased the premises, yet it did not convey notice to him of the outstanding lien, for the reason that it does not show that the court which rendered the judgment had jurisdiction of the subject-matter of the action on which it is based; (3) that all proceedings under the judgment are void, for the reason that the transcript of the docket of the justice of the peace does not show that said justice had jurisdiction to an amount in excess of one hundred dollars, or to the amount of the judgment.” On the hearing of the motion, the affidavit of Schlisman was introduced in evidence, by which it was shown that the note sued on in the action in which the judgment was rendered contained a provision by which the makers consented that any justice of the peace might render judgment thereon, notwithstanding the amount exceeded $100.

1. It is contended by appellee that...