Smith v. Griffin

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

13 N.W. 423

59 Iowa 409

SMITH v. GRIFFIN ET AL

Supreme Court of Iowa, Davenport

October 3, 1882

Appeal from Delaware District Court.

THIS is an action in equity, commenced on the 7th 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.

AFFIRMED.

A. E House, Charles Husted and Ray B. Griffin, for appellants.

Bronson & LeRoy, for appellee.

OPINION

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 south half 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 two hundred dollars, 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 south half 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 ten acre tracts thereof for the aggregate price of $ 268.75, and executed to him a sheriff's deed therefor.

On the 17th day of May, 1872, Simeon B. Griffin conveyed said land by warranty deed to U. T. Brown, now deceased, whose heirs are parties defendant to this action.

I. 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. Wilkie & Tuller v. Jones, Morris 97; Doolittle v. Shelton, 1 Greene 272; Johnson v. Dodge, 19 Iowa 106; Hakes v. Shupe, 27 Iowa 465. This case is in principle identical with Lutz v. Kelly, 47 Iowa 307, in which it was held that a mere personal judgment in an action of...