37 Iowa 75 | Iowa | 1873
I. The finding of facts by the court is fully sustained by the evidence. It was not error on the trial of the issue made upon the answer of the garnishee, to admit such answer in evidence, for our statute says (Rev., § 8208), “ upon such trial the answer of the garnishee is competent testimony.”
II. The judgment by default against the defendant McNany, on the note given in part payment for the land, is no bar to an action by him against Turner xrpon the bond for title for a breach thereof. Our statute provides (Rev., § 2621) : “Judgment obtained in an action by ordinary proceedings shall not be annulled or modified by any order in an action by equitable proceedings, except for a defense which has arisen or been discovered since the judgment was rendered. But such
As to the effect of a recovery at law on a cause of action against which the defendant held a claim available as a defense, upon his right to bring a subsequent action thereon, the authorities are not uniform; some hold that the judgment in the first action is a bar to the subsequent one. Davis v. Tabcott, 13 N. Y. 184; Yates v. Preston, 41 id. 113, and cases cited. Others hold it no bar. Sykes v. Bonner, Cin. Sup. Ct. Rep. (1871) 464, and cases cited; Mondel v. Steel, 8 Mees. & Welsb. 858; Davis v. Hedges, Law Rep., 6 Q. B. (1871) 687; Nichols v. Tremlette, 1 Sprague, 361 (i. e. 367); see also Barker v. Cleavland, 19 Mich. 230; Thornton v. Thompson, 4 Gratt. 421. Our own decisions, while they do not expressly and directly rule the precise point, indicate a decided inclination toward the view that the first judgment is not a bar. Clark v. Sammons & Van Pelt, 12 Iowa, 368; Griffin v. Seymour, 15 id. 30; Delany v. Reade, 4 id. 292; Griffith, admr. v. Lovell et al., 26 id. 226.
Affirmed.