Brown v. Markley

58 Iowa 689 | Iowa | 1882

Lead Opinion

Day, J.

1. EXECUTION: stay of: justice's court: redemption. I. It appears from the allegations of the petition that the defendent, Markley, stayed the Finn judgment in the justice’s court, before the transcript was filed in the office of the clerk of the Circuit Court. The defendants, other than Markley, insist that the defendant Markley, by staying execution upon the judgment in the justice’s court, waived the right to redeem from the sheriff’s sale. The defendants for this position rely upon Section 3102 of the Code, which is as follows: “The defendant may redeem real property at any time within one year from the day of sale as herein provided, and will, in the meantime, be entitled to the possession of the property. But in no action where the defendant has taken an appeal from the Circuit or District Court, or stayed execution on the judgment, shall he be entitled to redeem.”

In determining the demurrers, the court based its decision upon the ground that this section, in so far as it denies redemption when a stay of execution has been taken, has no application to a judgment which has been stayed only in a justice’s court. The effect of this holding is, to allow Markley to redeem, to defeat the title of the defendants acquired under the sheriffs sale, and to deny to the plaintiff the right to redeem. The question involved in this decision of the court is by no means free from difficulty. We are'of opinion, however, that the court erred in the construction which it placed upon the statute. The purpose of the statute evidently is to prevent a party who has delayed the enforcement of a judgment by taking a. stay, from further 'delaying it by exercising the right of redemption from the sheriff’s sale.

The provisions regarding stay of execution are general, the same periods being applicable to justice’s courts and to courts of record. See Code, § 3061. The enforcement of a judgment can be delayed just as long by taking a stay in the court of a justice of the peace, as in the District or Circuit Court. Section 3102 of the Code is also general in its provisions. It declares that “In no action where the defendant has * * * * * * stayed execution on the judgment, shall he be entitled to redeem. We know of no authority for limiting the application of this section to judgments recovered in courts of record. Immediately upon the rendition of a judgment in a justice’s court the defendant may stay execution. The plaintiff is not required to wait until the stay expires before he files a transcript of the judgment in the office of the clerk of the court. Suppose he files such transcript as soon as the stay is taken, what becomes of the stay ? The filing of a transcript cannot defeat the stay. Upon the contrary it remains in force and during its continuance prevents the enforcement of the judgment notwithstanding the filing of the transcript. Can we say then that because the stay was taken in the justice’s court section 3102 does not apply in so far as it denies redemption, and that the defendant shall be allowed to redeem notwithstanding the stay 2 It seems to us it would not do to so hold, but that section 3102 must be regarded as applying to stays of execution injustice’s courts, as well as in courts of record. It follows that the sale under the Finn judgment was, as to the defendant Markley, absolute, and that it divested him of all interest in the property, without any right of redemption.

2. — : sale: redemption : lien holder. II. The plaintiff claims that as to the defendant, Markley, the sale under the Finn judgment cutoff all right of rédémption, but insists that he, as a lien holder j has a to redeem from the sheriff’s sale. Plaintiff relies upon Sieben v. Becker, 53 Iowa, 24. But the sale under the Finn judgment occurred July 3,1879, and plaintiff did not obtain his judgment until September 1, and did not file a transcript of it until September 27, 1879. The plaintiff was not a lien holder when the sale under the Finn judgment was made. When the plaintiff obtained his judgment all right of Markley in the property had been divested, and there was no interest remaining upon which plaintiff’s judgment could attach as a lien. It follows that the plaintiff is not entitled to redeem.

Upon the plaintiff’s appeal the judgment is affirmed. Upon the defendants’.appeal

Reversed.

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Dissenting Opinion

Seevers, Ch. J.,

dissentmg. — The foregoing opinion holds that Section 3102 of the Code applies to judgments rendered by a justice of the peace. I think this construction of the statute is erroneous. The statute provides that “in no action where the defendant has taken an appeal from the Circuit or District Court, or stayed execution on the judgment, shall he be entitled to redeem.” The appeal must have been taken from a judgment rendered by a court of record, then follow the words “or stayed execution.” This evidently means a stay of execution may be issued on the same class of judgments as those from which the appeal must be taken. That this is the proper construction is strengthened by the consideration that real property cannot be sold on executions issued by a justice of tbe peace. When the execution was stayed real estate could not be sold under the judgment. The right to redeem therefore was in no manner affected thereby; subsequently the judgment became a judgment in a court of record but this was not done or caused by Markley. It seems to me, he therefore should not be deprived of a substantial and important right.

The judgment of the Circuit Court should be affirmed.