Toliver v. Morgan
| Decision Date | 27 October 1887 |
| Citation | 75 Iowa 619,34 N.W. 858 |
| Parties | TOLIVER AND ANOTHER v. MORGAN AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Calhoun county.
Action to redeem from a foreclosure sale. The court dismissed the plaintiff's petition, and the plaintiff William Bolles appeals.J. H. Ballagh, F. S. Rice, and E. C. Stevenson, for appellant.
J. C. Kerr and T. F. Barbee, for appellees.
The plaintiff Bolles and one Dayton S. Morgan held each a mortgage upon the land in question, executed by J. L. Dean and wife, the plaintiff's mortgage being junior. Dayton foreclosed, and caused the land to be sold on execution, and obtained a sheriff's deed, and afterwards conveyed to the defendant Margaret M. Dean. In the decree of foreclosure, Bolles is mentioned as defendant, and the decree purports to bar his rights. He avers, however, that he was not in fact a party to that action; that he was, and is now, a non-resident of the state, and was not served with notice of the suit, either personally, or by publication. The evidence shows that the court-house in which the papers in the case were kept has been destroyed by fire, and that the papers cannot be found. The record book containing the decree was preserved, and also the appearance docket. The decree expressly mentions Bolles as a defendant, and justifies the assumption that he was named in the petition as such. The appearance docket, however, showed merely the filing of the petition, the date thereof, and the name of the plaintiff, and names of the defendants James L. Dean and Margaret M. Dean; the latter being the mortgagors. It is insisted by Bolles that the entry of his name in the appearance docket was necessary to give the court jurisdiction of him. In support of this position he relies upon sections 198 and 200 of the Code.
If Bolles was named in the petition as defendant, as we think appears from the decree, his name certainly should have been entered in the appearance docket. Section 198 provides that in entering suits the clerk shall set out the full names of all the parties, plaintiffs and defendants, as contained in the petition. The question presented is as to the effect of this omission. It may be conceded that the appearance docket was prima facie evidence that Bolles was not named as defendant in the petition. But this we think was overcome by the decree, and there remains only the question as to whether the entry of Bolles' name in the appearance docket was necessary to constitute the filing of a petition as against him. His position is that a petition cannot be deemed filed as against any one whose name is not entered in the appearance docket. He relies upon section 200 of the Code, which provides that “the clerk shall, immediately upon the filing thereof, make in the appearance docket a memorandum of the date of the filing of all petitions, demurrers, answers, motions, or papers of any description in a cause; and no pleadings of any description shall be considered as filed in a cause until the said memorandum is made.”
In the case at bar, there was a memorandum of the date of the filing of the petition in the appearance docket, and we cannot say that the petition was not to be considered as filed without...
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