47 Iowa 124 | Iowa | 1877
I.. The facts of the case, as disclosed by the abstract of appellant and the amended abstract of appellee, are as follows:
2. At the April term, 1875, the report of the referee having been filed, a decree thereon was entered. . Neither the decree nor report of the referee is found in either the abstract or amended abstract;
3. At the November term, 1875, upon motion of defendant, the decree rendered at the April term was modified. Among other matters contained in this amended decree, the following appears: “And in accordance with the provision of the said referee’s report [approved and confirmed in a prior part of the decree], it is hereby ordered and adjudged that the defendant, John C. Elliott, is entitled to and is hereby adjudged the sum of $51 of the principal of the moneys of the parties in the hands of James E. Dwiggins, and also one-half the interest paid or to be paid, or that has accrued upon the said moneys of these parties while the same was held by, and in the hands of Dwiggins, it appearing by said referee’s report that the whole of said interest amounts to the sum of $344.93,
4. Dwiggins made payment of $200 on the foregoing order or judgment against him. The payment was made by a remittance, accompanied by the following letter:
“ February 3, 1876.
“Cleric of the Court, Ma/rshall County, Iowa: — Enclosed please find draft for $200, with which I wish to pay judgment obtained against me in case of Elliott v. Elliott, this being the entire amount of funds in my hands belonging to either of the parties to said suit. Please cancel judgment so far as I am concerned, and send me receipt for amount. Tours truly,
' J. F. Dwiggins.”
5. The defendant refused to pay over the whole of this money to plaintiff upon demand. He offered to pay $51 to plaintiff, as the amount to which he was entitled. The balance he applied, as we understand the abstracts, to the benefit of the plaintiff in the divorce suit.
■ 6. The plaintiff herein made his motion for a summary order requiring defendant to pay him the whole amount of the $200 except $15, which he concedes defendant may apply on the costs.
7. The defendant admits that the proceeding is authorized by title 17, chapter 13 of the Code, if plaintiff is in law entitled to the money.
9. The order' and judgment of the court upon plaintiff’s motion make no disposition of the cross-petition, and the abstracts fail to show any action thereon. The final judgment simply overrules plaintiff’s motion.
But it is urged that Dwiggins was not a. party to that suit, and had no notice thereof, and the judgment therefore is .void as to him.
The sufficient answer to this is that Dwiggins raises no such defense to the judgment, but voluntarily paid the money to the clerk. He submits to or acquiesces in the judgment. The money paid by him he is not claiming, and cannot claim, for it-was paid by him to be applied as provided'by the judgment. The question is of no interest whether the judgment (if it be one), is valid as against him. He has responded to its requirements, and the money is in the hands of the clerk to be disposed of, as between the parties, by an adjudication that, as to them, cannot be claimed to be invalid. That judgment plainly requires the money to be paid to plaintiff.
The judgment, while it remains unreversed and in force, cannot be questioned. It surely cannot be impeached, when rights are claimed under it, by the clerk alleging irregularity in the proceedings, or want of jurisdiction of the court rendering it.
Much has been said in argument as to the facts of the case which are not disclosed by the abstracts. These matters have received no attention from us. The statement of facts by counsel outside of the record can have no influence in the decision of the case. They accomplish no other purpose than the annoyance of the court and the imposition of labor and cost upon the party making them.
It is our opinion that 'the record shows that plaintiff is entitled to the money in controversy, and that it is the duty of the clerk to pay it to him. The judgment of the District Court is, therefore,
Reversed.
A motion of appellant to strike an amended abstract filed by the appellee, which was submitted to us with the case, need not be passed upon, as we reverse the decision of the coirrt below. This amended abstract was considered in determining the case; the appellee, therefore, has no ground of complaint.