37 Iowa 221 | Iowa | 1873
The petition alleges that the defendants make claim of title to said premises, based upon certain sheriff’s deeds thereto,
It is averred that the first judgment was invalid, for the reason that the justice never acquired jurisdiction of the defendant Linder, no notice of the action having been served upon him. And it is alleged that the second judgment was rendered after Linder had conveyed the land to plaintiff. It is claimed, therefore, that the sales of the land on execution on the judgments, by the sheriff, and the deeds made in pursuance thereof, conferred no title on the purchasers. The court is asked to so declare and quiet plaintiff’s title to the land.
On the other hand, it is claimed by the defendants that the legal title to the land is vested in them under said sheriff’s deeds, and they ask to have the title thereto quieted in them.
In the view we take of the case, it will only be necessary to inquire into the validity of the judgment rendered before the justice against plaintiff’s grantor, November 22, 1858. This judgment, if valid, became a lien on the land in controversy at that date, a transcript having been filed in the clerk’s office of the district court. Rev., §§ 3909, 3910, 4105. This was four months prior to plaintiff’s purchase from Linder. He purchased subject to the lien of the judgment, and the sheriff’s sale made upon and in virtue of this judgment, and his deed in pursuance of the sale vested the title to the land in the sheriff’s grantee, unless it be found that the judgment was void for want of jurisdiction over the person of Linder, the defendant therein.
The transcript of the justice as the same was originally filed in the clerk’s office, showed the issuance of an original notice November 15, 1858, returnable on the 22d of the same month,
Appellant’s counsel claim:
Fvrst. That the failure of the justice’s transcript to recite the service of the notice rendered the judgment absolutely void.
Second. That the fact of service cannot be proved by the oral testimony of the constable.
The third clause of section 3857, which directs that the justice shall enter in his docket, “the issuing of process and return thereof,” is directory to the justice merely, and his failure to enter the return of process will not prejudice either party. Houston v. Walcott & Co., 1 Iowa, 86. It is not the entry of the return of the notice that confers jurisdiction, but it is the fact of service that gives jurisdiction. Newcomb v. Dewey, 27 Iowa, 381.
The proof, therefore, shows that the justice had jurisdiction of the person of Linder and had authority to render judgment against him. The judgment thus rendered was valid and the sheriff’s sale and deed passed the title of the land to the defendant- Arnold, the sheriff’s grantee. This sale was made
It becomes unnecessary to inquire what right or title the defendants acquired under the judgment of Arnold v. Linder, since we hold the defendant’s title to the land to be good under the first sheriff’s sale.
Affirmed.