Dougherty v. McManus

36 Iowa 657 | Iowa | 1873

Day, J.

— It is not questioned that this notice was properly served; but it is insisted that the notice itself is not sufficient to confer jurisdiction and that the judgment rendered upon it is void.

It is claimed that the notice is defective in three particulars:

First. — That it is uncertain as to plaintiff, in that it does not state of what board of sub-directors R. McManus, the plaintiff, is president.

Second. — That it is uncertain as to defendant, in that it does not state of what the defendant, Daniel Dougherty, is treasurer.

Third. — That it does not state the cause or ground of the claim of $28. And in these respects it is claimed the notice faffs to comply with the requirements of sections 3860 and 3861 of the Revision.

It may be conceded that the notice is irregular and technically defective, and that the justice might properly have held that it was insufficient to confer jurisdiction, and refused to entertain the same, and yet it by no means follows that his judgment is void, and as such may be collaterally assailed. It is not a case of no notice. The most that can be said is that it is a ease of defective notice. The defendant is advised that R. McManus, president of a board of sub-directors, claims of him, treasurer, $28. He is personally served with notice which advises him of the time when and place where this demand will be urged against him.

If he did not know of what he was treasurer, and it was material that he should be advised, he might have asked that the notice be made more certain in this regal'd. And the same is true respecting the capacity in which the plaintiff sues. And if he deemed a more specific statement of the ground or cause of claim necessary to enable him to interpose his defense, he might have secured the same. And then'if not prepared to defend, because of absence of witnesses, he might have procured a continuance under section 3870 of the Revision. But having suffered judgment to go against him by default, he cannot now insist that it is void. If the justice erred in holding the notice sufficient, the error should have been corrected as other errors, by writ of error or appeal as provided by law. See Shea v. Quintin, 30 Iowa, 58; Shawhan v. Loffer, 24 id. 217; Ballinger v. Tarbell, 16 id. 491; Moody v. Taylor, 12 id. 71, arose prior to the Revision, and in that case it was held the cause should have been continued for notice, not dismissed for want of jurisdiction.

The petition alleges that the justice rendered a judgment “ against said Daniel Dougherty, treasurer,” and that the constable, Patrick Moran, “ is about to levy said execution upon the property of said Daniel Dougherty, personally.” And it is claimed that this alone affords ground for equitable relief.

It is to be observed that the petition does not allege that the judgment was rendered against Daniel Dougherty, as treasurer, but against Dcmiel Dougherty, treasurer. This is a personal judgment against him, and the only way that it can be satisfied is by taking his property in discharge of it.

The word “ treasurer ” is merely desoriptio personae.

Affirmed.