Slater v. Roche

• Citation: 148 Iowa 413,126 N.W. 925
• Parties: SLATER v. ROCHE.
• Decision Date: 16 June 1910
• Court: United States State Supreme Court of Iowa

148 Iowa 413

126 N.W. 925

SLATER

v.ROCHE.

Supreme Court of Iowa.

June 16, 1910.

Appeal from District Court, Polk County; James A. Howe, Judge.

Action aided by attachment upon a foreign judgment. Defendant pleaded the statute of limitations. Upon trial to the court judgment was rendered subjecting the attached property to the payment of the judgment, but denying a personal judgment against defendant for the remainder. Both parties appeal; but, as defendant first perfected his appeal, he will be called “appellant.” Affirmed.Mulvaney & Mulvaney, for appellant.

Dunshee & Haines and C. R. Dorn, for appellee.

DEEMER, C. J.

A judgment in favor of plaintiff and against the defendant was rendered by a district court of the state of Minnesota on the 8th day of December, 1897, for the sum of $416.28. On the 23d day of November, 1907, plaintiff filed a petition in the district court of Polk county, Iowa, in which she asked judgment for the amount of the Minnesota judgment with interest and costs. Alleging that defendant was a nonresident of the state, she asked and obtained a writ of attachment against the property of the defendant, which writ was issued, and upon the same day levied upon certain property of the defendant in Polk county, Iowa. Notice of the levy was immediately served upon the manager of a company in which defendant was interested. On November 26, 1907, a proper affidavit for publication of notice was filed, and on the 24th day of December proof of publication of notice was filed in the Polk county district court. The affidavit of publication showed that the notice was published November 27, December 4, December 11, and December 18, 1907. April 11, 1908, plaintiff filed an amendment to her petition and also a supplemental petition, and on May 4, 1908, she filed another amended and supplemental petition. Defendant appeared and filed answer October 31, 1908, in which, among other things, he pleaded the statute of limitations. He also pleaded a Minnesota statute reading as follows: “No action shall be maintained upon a judgment or decree of a court of the United States, or of any state or territory thereof, unless begun within ten years after the entry of such judgment.” Section 4075, c. 77, Rev. St. 1905.

A demurrer to defendant's answer and plea of abatement was overruled, and thereupon plaintiff filed a reply, in which, among other things, she pleaded a statute of Minnesota reading as follows: “If, when a cause of action accrues against a person, he is out of the state, an action may be commenced within the time herein limited after his return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is not part of the time limited for the commencement of the action.” Section 4082, Rev. Laws. She further averred that, after the rendition of said judgment, the defendant departed from the state of Minnesota, and was absent from said state several years, by reason of which plaintiff's cause of action on said judgment was never fully barred by the laws of the state of Minnesota. Upon these issues the case was tried to the court, a jury being waived, resulting in a judgment condemning the attached property and ordering it subjected to the payment of plaintiff's judgment for the sum of $704.93, but denying plaintiff's prayer for personal judgment.

Appellant contends that under the Minnesota statute first quoted plaintiff's action was fully barred, and that the trial court erred in subjecting the attached property to the payment of the Minnesota judgment. Plaintiff contends that the court erred in not rendering personal judgment against the defendant for the full amount of the Minnesota judgment with interest and costs. It is conceded that at all times material to our inquiry defendant was a nonresident of this state, and it is also conceded that, if this action was not commenced within 10 years from the time of the rendition of the Minnesota judgment, this action is barred. Completed service of notice by publication was not had until December 18, 1907, which was more than 10 years after the rendition of the Minnesota judgment, although the first two publications were made within that time. However, the writ of attachment was issued, levied, and returned within the 10 years, although defendant did not personally appear until some months after the expiration of the 10-year period. It is contended that action was not commenced until the completion of the service of notice by publication. This seems to be the rule established by this court. Littlejohn v. Bulles, 136 Iowa, 150, 113 N. W. 756;Bardsley v. Hines, 33 Iowa, 157. Neither the filing of the petition nor of the affidavit for publication in themselves amounted to the commencement of the action, and, as completed service was not had until the expiration of the 10-year period, plaintiff's action is barred, unless it be for the fact that an attachment was sued out and levied upon defendant's property in this state before the expiration of the 10-year period. We have held that, where an action is aided by attachment, it is to be deemed commenced when the petition is filed. Hagan v. Busch, 8 Iowa, 309. Again, in Sweatt v. Faville, 23 Iowa, 321, which was an action for an injunction, it was held that the action was commenced “at least when the writ was served,” and was not barred although no notice was delivered to the sheriff or served within the statutory period. In Lacey v. Newcomb, 95 Iowa, 287, 63 N. W. 704, we held that the filing of a claim with an assignee for the benefit of creditors was the commencement of an action and stopped the running of the statute of limitations. So, also, it has been held that the filing of a note with an administrator of an estate is the commencement of a suit. Fritz v. Fritz, 93 Iowa, 27, 61 N. W. 169. These cases by analogy...