Carnes v. Crandall

| Iowa | Jul 1, 1856

Woodward, J.

It is not necessary to enter into a detailed consideration of the questions raised on the pleadings, by the arguments of counsel.

The petitioner appears to have misconceived, in some measure, either the remedy which he wants, or the means of obtaining it. He does not need a decree in equity to make his.judgment a lien on the land in Mahaska county. It is so already, by virtue of the law and the filing of the transcript. He wants, first, to revive his judgment against the administrator, so as to make her a party, and so as to be able to issue execution.

Eor this purpose, a scire facias is the method pointed out by law. Tbis is regulated in some small degree, by chapter 124, page 300, of tbe Code. It would be difficult, at least, to bring this petition within tbe idea of a scire facias. But we do not stop to discuss tbis point. Another difficulty presenting itself is, that a scire facias must be brought in tbe county where tbe original judgment was obtained — that is, where tbe record is ; and tbe plaintiff seeks to make the administrator a party to that judgment.

Tbe petitioner farther wants to make tbe heir a party to tbe proceeding, in some manner, so as to obtain execution against tbe real estate. In tbis respect tbe plaintiff is sufficiently correct; but this will not relieve him of tbe necessity of reviving bis judgment against tbe administrator in tbe county where tbe record exists. It does not follow, however, that these objects -would require separate proceedings, or that they may not be united in one in that county, where one of them must necessarily be; or that the court may not order the subjection of the lands in the same process.

Tbe leading error in the case is, that one of tbe objects sought, requires to be pursued in Marion county, where tbe original record remains.

On subjecting tbe real estate, see Postlewait et al. v. Howes, 3 Iowa, 365" court="Iowa" date_filed="1856-12-15" href="https://app.midpage.ai/document/postlewait-v-howes-7091163?utm_source=webapp" opinion_id="7091163">3 Iowa, 365. The claim is not barred by Code, section 1373. If that section would, taken alone, bar it, tbe section is answered or explained by section 1362.

Section 1367, as to filing tbis as an unsatisfied claim, would apply, if tbe petitioner were seeking its satisfaction out of tbe personalty. But be alleges that there is no personal property liable, and be is aiming to revive it against tbe administrator, and to reach the real property.

The decree of tbe District Court is affirmed.