46 Iowa 68 | Iowa | 1877
I. Both parties claim title under one Herman C. Green. The plaintiff’s claim of title consists of a power of attorney executed by Green, authorizing a sale of the lands, a deed of trust executed in his name by the attorney in fact, to secure certain indebtedness therein specified, proceedings in an action to foreclose the deed of trust and a deed by the sheriff executed upon a decree of foreclosure rendered in such action.
The defendant’s title is based upon a deed executed by Green subsequently to the execution and recording of the sheriff’s deed.
Plaintiff’s title depends upon the sufficiency of the foreclosure proceedings and the jurisdiction of the court rendering the decree thereon. Such jurisdiction is denied by defendants. It becomes our duty to consider the questions thus presented for our determination.
At the same term a default was entered against defendant in the action, and thereon a decree was rendered foreclosing the mortgage. It recites “that the original notice in this cause was duly returned ‘not found,’ and it further appearing
The statute in force at the time, Chap. 240, Acts Sixth General Assembly, providing for the service of original notices in actions of this kind by publication, contained- the following provisions:
“ Section 1. When the person on whom the service of an original notice is to be made cannot be found within the State, and the fact appears by affidavit to the satisfaction of the court, or a district judge, or of the county judge of the county where the trial is to be had, and it, in a like manner, appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that lie is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by the publication of such original notice in either of the following cases.” The section proceeds to enumerate the cases in which service in the manner prescribed may be made and continues as follows:
“ The order of publication may be made without a return of not found on the process, but such return may be required if deemed necessary by the judge, and for this purpose the sheriff may be required to return the process in vacation. * * * * The affidavit upon which the order was granted, the order when granted out of term time, the affidavit of publication, and the affidavit showing a compliance with an order directing the deposit of a copy of the original notice and petition in the post-office, must be filed with the clerk of the court where the cause is pending.”
III. The defendants maintain that the court did not acquire jurisdiction in the case for the reason that the affidavit required in the section, upon which the order for publication is authorized, is not shown to have been made and filed in the case. They contend that the order was made upon the return of “not found” on the process issued in the case.
It is not disputed by plaintiff that the affidavit required
But, in our opinion, the record does not show that there was an affidavit filed, or that the court passed upon the question of its existence and sufficiency. The record is simply to the
It is correctly said that the rules we have announced are applicable to the proceedings of courts of inferior and limited jurisdiction, but that in the support of the judgments of courts of general and superior jurisdiction every presumption will be exercised, .and as to them, when collaterally assailed, though nothing appear in the record showing the acquisition of jurisdiction, it will be presumed.
Y. This brings us to inquire whether the judgment, in the case before us, is to be supported as the decision of a court of general and superior jurisdiction.
Code, §3669, provides that proceedings of courts of limited and inferior jurisdiction shall, like those of courts of superior jurisdiction, be presumed regular except in matters required to be entered of record. An affidavit upon which the order of publication ought to have been based, was not filed as required by Chap. 240, Acts Sixth General Assembly. Such affidavit when filed constitutes a part of the record. Code, § 196. No presumption of regularity and compliance with the'law as to this matter can, under § 3669, be exercised.
This court has repeatedly held'that jurisdiction is acquired in cases wherever service of process is made by publication only upon compliance with the statute authorizing service in that way. See cases cited in Withrow and Stiles’ Digest, 677-8. Judgments in such proceedings, when questions of jurisdiction arise thereon, can be held valid only upon jurisdiction being shown in the manner above pointed out. As we have seen, the record before us fails to show that the court rendering the decree of foreclosure, under which plaintiff claims title, acquired jurisdiction. The decree is therefore void, and the sale of the land thereon, and the sheriff’s deed, transferred to plaintiff no title to the land. The court below rightly dismissed plaintiff’s petition.
YI. The defendants allege in their answer that the mortgage is void, on the ground that the power of attorney, under which it was executed, authorizes the sale of the land and not the execution of a mortgage thereon. They ask that it be
The mortgage secures plaintiff and six others in various sums which the mortgagor severally owed each. The creditors so secured, other than plaintiff, are not made parties to this suit. We cannot, therefore, in the absence of these necessary parties, determine questions affecting the validity of the mortgage. The relief asked by defendants must, for this reason, be denied.
Affirmed.