Callanan v. Lewis

79 Iowa 452 | Iowa | 1890

Given, J.

I. It is claimed on behalf of the plaintiffs that their action against Carmichaels was under section 893, Code; and that the defendant exceeded his jurisdiction, and proceeded illegally, in sustaining the ' motion of Tillson to set aside the decree, and for a new trial, because no notice thereof was given to the plaintiffs. It is claimed on behalf of the defendants that said action was under chapter 2, title 20, Code, and the motion under section 3268, contained in said chapter, and under which no notice is required. It is not questioned but that, if the action was under section 893, notice of the motion for a new trial was required, and, if under chapter 2, it was not. Section 893 provides : “Any person entitled to redeem land sold for taxes, after the delivery of the deed, shall redeem the same by an equitable action; * * * and no person shall be allowed to redeem land sold for taxes, in any other manner, after the service of the notice provided for by the next section, and the execution and delivery of the treasurer’s deed.” “Any person having a valid subsisting interest in real property, and a right to the immediate possession thereof, may recover the same by action against any person acting as owner, landlord or tenant of the property claimed.” Code, sec. 3246. “An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession.” Code, sec. 3273. Defendant maintains that the deed and “service of notice,” referred to in section 893, mean a valid deed, and completed and legal service of notice and deed. Thus construed, no action could be brought under said section 893, except by or on behalf of minors and lunatics. A failure to serve the notice to redeem, or to file the proof of such service before the execution of. the deed, does not render the deed void, and the land remains subject to redemption. The deed conveys the title to the purchaser, who holds it subject to be defeated by redemption of the lands. Bowers t>. Halloek, 71 Iowa, 218. Until this deed was set aside and redemption made, the plaintiffs were not entitled to immediate possession, and hence could not proceed under section 3246; neither was this an action to determine and quiet title alone. The principal and controlling relief sought was to be permitted to redeem from the tax sale, and the other relief asked is dependent upon such right, and a mere incident in the case. The provision of section 893, that no person shall be allowed to redeem in any other maimer than by equitable action, after the service of notice, and execution and delivery of the deed, does not mean a completed and legal service or a valid deed. The equitable action to redeem, on the grounds of insufficient notice or service, may be maintained under this section. The following cases have more or less bearing upon the subject: Bowers v. Hallock, supra; Long v. Smith, 67 Iowa, 22. Buena Vista County v. Railway Co., 49 Iowa, 657, was an action under chapter 2, title 20. The court held that the fact that the petition, in addition to asking that plaintiff’s title be quieted, prays other relief in regard to the land, will not take the case out of the provision of chapter 2, title 20, Code, in relation to granting new trials in actions to quiet title. This action being properly brought under section 893, the same rule applies; and the fact that other relief is asked in regard to the land will not take the case out of the provisions of that section. Our conclusion is that the plaintiffs were entitled to notice of this motion for a new trial, and that the court exceeded its jurisdiction, and proceeded • illegally, in sustaining the motion without such notice.

II. Defendants’ further contention is that the plaintiffs have a plain, speedy and adequate remedy by appeal. As we have seen, the court had no jurisdiction of the plaintiffs for the purpose of the motion for a new-trial, because they had no notice thereof. The entertaining and sustaining of the motion was, therefore, absolutely void, and, as the order sustaining the motion was made in the absence of the plaintiffs in the action, no exception could be taken, and hence an appeal would have been ineffectual. The plaintiffs might have moved the court at the succeeding term to set this order aside, but they were not bound to do this, for the court did not have jurisdiction to make the order. See Hawkeye Ins. Co. v. Duffie, 67 Iowa, 175. The order and judgment of the district court, granting a new trial, is set aside and Reversed.