41 Iowa 497 | Iowa | 1875
' “ The return must state the time and manner of making the service. If made by leaving a copy, as aforesaid, it must state at whose house, and the name of the person with whom the same was left, or a sufficient reason must be given for omitting to do so.” §§ 1721, 1723. Tested by the requirements of these sections, the return appears to be defective in several respects. It does not state that the defendant could not be found. It does not state at whose house the copy was left. It does not state the copy was left at the usual place of residence of defendant. It does not state the name of the person with whom the copy was left. That these are sub
An action is brought upon the judgment and it is sought to make it the basis of a new recovery. In such case it is always permissible to show that the court rendering the judgment had no jurisdiction. See Dobson v. Pearce, 1 Duer, 144, s. c. 12 N. Y., 165.
The defendant by proper answer assails the validity of this judgment, attacks it directly, and avers th^t he had no notice of the pendency of the action, and that the court acquired no jurisdiction of his person. See Dunlap v. Cady, 31 Iowa, 260; Whetstone v. Whetstone, Id., 276.
The real question here, then, is not, did the court decide that it had jurisdiction, but did the court in fact have jurisdiction. In McGahen v. Carr, 6 Iowa, 331, it was held that, although the decree may recite that it appeared to the court that the defendant had been served with notice of the pend-ency of suit, as required by law, the complainant, in proceeding to set the decree aside, may aver and prove that copies of the petition and notice were never directed to him, as reqixired
In Newcombe v. Dewey, 27 Iowa, 381, it was held that in a direct proceeding to set a judgment aside, it may be shown that the court had no jurisdiction of the person of the defendant, notwithstanding the judgment recites that he was duly and legally served with notice of the pendency of the suit. See, also, Stone v. Skerry, 31 Iowa, 582; Harris v. Hardeman, 14 Howard, 334.
.Aeeiemed.