133 Iowa 443 | Iowa | 1906
Plaintiff is a banking corporation of the State of Kansas, and the defendant is a resident of the city of Des Moines, in this State. In October, 1898, plaintiff brought an action in equity in the district court of Gage county, Neb., to foreclose a mortgage on real estate in that county given by defendant to secure a note evidencing a debt owing by him. Service of notice of such action was had by publication, and in due time a decree was entered providing for foreclosure and an order of sale. After entry of the decree, the defendant filed with the clerk of said court a request for stay of the order of sale for nine months, as authorized by the law of that State. On the expiration of the nine months an order of sale issued, and the mortgaged property was sold by the sheriff of the country for a sum less than the amount due on the indebtedness secured, with interest and costs; the amount of the deficiency being $506.66. The sale so made was subsequently confirmed by the court. Thereafter the plaintiff bank procured to be served person
Among other matters of defense, the defendant challenged the validity of the judgment sued upon, for that the' court assuming to enter the same had no jurisdiction to enter a judgment in personam,. The trial court held that this defense should be sustained, and, we think, rightfully so. As this conclusion' must lead to an affirmance of the judgment appealed from, we shall have no occasion to consider-any of the questions arising out of the other matters of defense pleaded. That the jurisdiction of-a court to enter, judgment may always be inquired into "is dóctrine too well established to ¿dmit of question. Cuykendall v. Doe, 129 Iowa, 453; Thompson v. Whitman, 18 Wall. (U. S.) 457 (21 L. Ed. 897) ; Knowles v. Logansport Co., 19 Wall (U. S.) 58 (22 L. Ed. 70). Now, to'authorize a judgment in personam the court must not only have jurisdiction of the subject-matter of the action, but of the person of the defendant ; and this is the rule in Nebraska, as it is in this State and elsewhere. Wescott v. Archer, 12 Neb. 345 (11 N. W. 491) ; Cobbey v. Wright, 23 Neb. 250 (36 N. W. 501).
As well understood, jurisdiction of the person can only be obtained by service of notice within the State, or. by a voluntary appearance! Judged by this rule,'it is clear that we have no case of a judgment upon personal service, and 'if the judgment as entered by the Nebraska court can be sustained on any theory it must be because the filing of the request for stay or :order for execution amounted to a personal
This is what was done in the instant case, and the precise question is: Did the filing of such request with the clerk confer jurisdiction on the court to render a deficiency judgment as upon a personal appearance to the action ? Under our statute — and we must presume that the Nebraska statute is the same — an appearance in an action is accomplished by delivering to the plaintiff or the clerk a memorandum to that effect, or by entering an appearance on the court records, or by announcing the same in open court; and an appearance for any purpose connected with the cause will be taken to be a general appearance, and will authorize the court to proceed as though personal service of the notice of the action had been regularly and duly served. Code, section 3541. The expression “ for any purpose connected with the cause,” however, is not to be taken as wholly unrestricted in meaning. The appearance must have some relation to the merits of the controversy, and the purpose must be to invoke some action on the part of the court havig di
Conceding, then, as we may, that by taking tbe stay tbe instant defendant waived tbe right to thereafter question tbe validity of tbe foreclosure decree, still there can bfe no good reason for extending tbe operation of tbe waiver to include matters wholly disconnected with tbe purpose thereof and tbe particular subject-matter with which it was connected. A waiver is defined to be tbe intentional relinquishment of a known right, or such conduct' as warrants an inference of tbe relinquishment of such right. And by general rule it must be evidenced by an unequivocal and decisive act, clearly proven. “ If tbe act is not of such character, or is not in
Without further discussion, we conclude that there was no appearance by the defendant in the Nebraska court for any purpqse connected with the cause touching the right of plaintiff to a personal judgment, but was wholly disconnected therefrom, and hence due and legal notice of the subsequent proceedings in which judgment was demanded and