Smith v. Griffin

• Decision Date: 03 October 1882
• Citation: 59 Iowa 409,13 N.W. 423
• Parties: SMITH v. GRIFFIN AND OTHERS.
• Court: Iowa Supreme Court

59 Iowa 409

13 N.W. 423

SMITH

v.GRIFFIN AND OTHERS.

Supreme Court of Iowa.

Filed October 3, 1882.

Appeal from Delaware district court.

This is an action in equity, commenced on the seventh day of June, 1875, to set aside a judgment recovered by M. E. Griffin against the plaintiff, and to cancel the sale and sheriff's deed thereunder to Simeon B. Griffin. The court granted the plaintiff the relief prayed. The defendants appeal. The material facts are stated in the opinion.A. E. House, Charles Husted, and Ray B. Griffin, for appellants.

Bronson & Leroy, for appellee.

DAY, J.

In April, 1868, the defendant M. E. Griffin commenced an action against the plaintiff upon account for $200 for professional service, assigned to M. E. Griffin by the defendant Ray B. Griffin. An affidavit that the defendant in that action, George Smith, was a non-resident, was made, and an attachment was prayed. Notice was served by publication, and a writ of attachment was issued and levied upon the S. 1/2 of section 9, township 88, range 5. At the October term, 1868, the defendant was adjudged in default for want of appearance or answer; and it was “considered and adjudged by the court that the plaintiff have and recover of the defendant the sum of $200, together with the costs of this suit, taxed at $12.35, and that execution issue therefor.” Under this judgment a special execution issued, directing the sheriff to levy upon and sell the S. 1/2 of section 9, township 88, range 5, previously attached in said cause, or so much thereof as may be necessary, etc. Under this execution the sheriff levied upon the south half of said section, and on the thirtieth day of January he sold, under appraisement, to Simeon B. Griffin five distinct 10-acre tracts thereof, for the aggregate price of $268.75, and executed to him a sheriff's deed therefor. On the seventeenth day of May, 1872, Simeon B. Griffin conveyed said land by warranty deed to N. T. Brown, now deceased, whose heirs are parties defendant to this action.

1. The judgment rendered in the case of Simeon B. Griffin v. George Smith is a personal judgment. In a proceeding by attachment, when the defendant has not been personally served with process, the judgment should be in rem only, and not in personam. Code, § 2881; Wilkins v. Jones, Morris, 97; Doolittle v. Shelton, 1 Greene, 272;Johnson v. Dodge, 19 Iowa, 107; Hakes v. Shupe, 27 Iowa, 465. This case is in principle identical with Tutz v. Kelly, 47 Iowa, 307, in...