Cooper v. Miller

10 Iowa 532 | Iowa | 1860

EaldwiN, J.

The plaintiff in his petition seeks to foreclose a certain mortgage given to him by defendants, Miller and wife, and to cut off the equity of redemption of the other defendants, who were subsequent purchasers. The appellants assign as error the final judgment of the court, which is represented as a personal judgment against each of said defendants; whereas, only the said J. S. Miller was liable for the amount claimed. The appellants also claim that Kemper, one of said defendants, had never been served with any notice of the proceeding against him by plaintiff, and that the court erred in rendering a decree against him without such service. In the decree of the court it is recited “ that this cause coming before the court .in presence of counsel both for plaintiff and defendants, &c.” We think this is sufficient to show an appearance of all of the defendants.

The decree recites the substance of the mortgage and the amount due upon the notes given by said Miller to plaintiff. It is then declared by the court in said decree, “ that upon an examination of what was alleged in the pleadings and other papers in said cause, and hearing the proofs advanced, and so forth, this court doth find that there is now due said S. F. Cooper, on said notes, the sum of $1,164, and said court doth think fit and order that plaintiff have judgment for said amount, and that a special execution issue for the collection of said amount, to be served by a levy upon the premises aforesaid, and that the same be sold to satisfy said judgment with interest and costs.” It is then ordered that the equity of redemption of the defendants be cut off as well as that of all persons claiming under them, &c.

We can not regard this as a personal judgment, against any except tbe maker of the note. There is no general execution directed to issue against either of the defendants, in case the property mortgaged should not sell for sufficient to pay the amount of said note, interest and costs, nor a personal judgment against any of the defendants, naming them. As the plaintiff, however, releases David Kemper from said judgment and decree, and the rest of defendants, except Miller and wife, from the effect of any personal judgment against them, it will be ordered that a personal judgment be rendered in this court against the defendant, Miller, for the amount secured by the said mortgage, and a decree foreclosing the interest of defendants, Miller and wife, Buckingham, Griffith, Yest and Shipley, in the said mortgaged premises.

Judgment affirmed.