Wright v. Mahaffey

• Decision Date: 29 October 1888
• Citation: 76 Iowa 96,40 N.W. 112
• Parties: WRIGHT ET AL. v. MAHAFFEY ET AL.
• Court: Iowa Supreme Court

76 Iowa 96

40 N.W. 112

WRIGHT ET AL.

v.MAHAFFEY ET AL.

Supreme Court of Iowa.

October 29, 1888.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

This is an action in equity by James W. Wright and others against Alexander Mahaffey and John Hawthorn, to subject certain personal and real property, the title to which was vested in defendant Hawthorn by certain conveyances from his co-defendant Mahaffey, to the satisfaction of two judgments recovered by the plaintiffs against said Mahaffey. One of the grounds upon which relief is demanded is that the conveyances were executed and received for the fraudulent purpose of covering the property from the creditors of the grantor. Another is that they were intended as mortgages to secure an indebtedness which Mahaffey was owing, and a portion of such indebtedness had been paid. Defendant Hawthorn alone appeared and made defense. The judgment of the district court determines that the conveyance of the real estate was intended as mortgages. It also directs the sale of the property, and the application of the proceeds (1) to the satisfaction of a mortgage, which was a lien upon the premises at the time of the conveyance; (2) to the satisfaction of the balance of the indebtedness due Hawthorn after deducting the value of the personal property, and the rental value of the real estate; and (3) to the satisfaction of plaintiffs' judgments. Hawthorn appealed.J. T. Illick, for appellant.

Jack & Cowles and S. L. Glasgow, for appellees.

REED, J., ( after stating the facts as above.)

1. Appellees filed a motion to dismiss the appeal on the ground that the notice of appeal had not been served on defendant Mahaffey. After the filing of the motion appellant caused the notice of appeal to be published in a newspaper published in Des Moines county, and filed the proof of the publication in the office of the clerk of this court. We have no occasion to consider the question whether this service is sufficient to give this court jurisdiction of Mahaffey. The requirement of the statute, (Code, § 3174,) that where an appeal is taken by “a part of several co-parties” the notice of appeal must be served upon the other co-parties, is not jurisdictional. Moore v. Held, 35 N. W. Rep. 623. In such case the court has jurisdiction to determine the questions arising between the parties before it, and which do not affect the rights and interests of those not served. By his default in the court below Mahaffey admitted the validity of plaintiff's judgments; also that any interest retained by him in the property was subject to be appropriated to their satisfaction. These admissions are of course binding on him alone. But in view of them no interest of his can be prejudiced by the determinations of the questions as between the other parties. The motion will therefore be overruled.

2. In an amendment to his answer appellant alleged that the action in which one of plaintiff's judgments was rendered was upon a money demand; that Mahaffey was a non-resident of the state, and that the only evidence of the service of the original notice, before the court rendering the judgment, was an acceptance of service, indorsed upon the notice, and signed by Mahaffey, but that such acceptance was made without the state, and that he made no appearance in the action. It was also alleged that the action in which the other judgment was rendered was upon a like demand, and upon like service; that it was aided by attachment, which was sued out after the acceptance of service by Mahaffey, but no notice of such attachment was served upon him; that appellant was garnished upon the attachment, and there was a trial of the issues joined on his answer, which resulted in an order discharging him. Transcripts of the judgments, original notices, and acceptances of service were attached to the answer. The judgments are personal judgments for the recovery of money; and the fact that the acceptance of service was made without the state is not shown, either by their recitals or the acknowledgments of service. The district court sustained a demurrer to this amendment to the answer, and that ruling is assigned as error. We think the ruling is right. The judgments are regular on their face, and appellant is a stranger to...