107 Iowa 631 | Iowa | 1899
I. The ground upon which the plaintiff asks relief is that no original notice of the pendency of the action wherein said judgment was rendered was ever served on Martin Boone, and this is the sole contention in the case. The evidence relied upon as showing that an original notice of the pendency of said action was served on Martin Boone is the entry in the judge’s calendar, the recital in the jiidgment, and the testimony of W. L. Heed, Esq. The entry in the judge’s calendar reads: “October 10, 1878. Default, and judgment for amount of note and interest. Clerk assess. And balance of account, with interest at the rate of 6 per cent, from March 8th, 1875. Clerk assess.” The judgment recites as follows: “Now, on this day this cause coining on to be heard, the plaintiff appearing by Baugh, Smith & Sweeley, attorneys, and it appearing to the court that the said Martin Boone had been duly served with notice of the pendency of this suit according to law, and failed to appear and plead thereto within the time provided by law, it is ordered by the court that a default be, and the same is hereby, entered against the defendant.” Mr. Need testifies that he is practicing law, and has been for the past twenty-two years, in the city of Des Moines; that in 1878 the defendant Stillwell placed in his hands a promissory note and an account against Martin Boone, a resident of Dallas county, to be put into judgment. Mr. Need’s memory is evidently not entirely clear as to the transactions about which he testifies, and his statements are given with care and some qualifications. For these reasons, question is made as to the weight that should be given to his testimony. We think it
II. Under a familiar and undisputed rule of law, we must presume from the recitals in the judgment in question that Martin Boone had been duly served with notice of the pendency of that action, and that the burden is on the plaintiff to overcome this presumption. Jamison v. Weaver, 84 Iowa, 612. This presumption is grounded upon the fact that courts are required to, and do, exercise care to know that they have jurisdiction/ by the service of notice, to render defaults and judgments in such cases. It is insisted in argument that courts do not usually inspect the returns, but act upon the representations of counsel as to service. Such surely should not be, and we think it is not, the practice. We are not warranted in assuming that any reputable attorney would seek to take a default without service of notice, or that courts are so negligent in such matters as to entertain jurisdiction without inspecting the return of service of original notice upon which the jurisdiction depends. For these reasons this presumption carries with it much force, and it is not overcome by facts from which, merely, a contrary presumption may arise. The burden is on the plaintiff to show by direct and satisfactory evidence that this presumption is not well founded. The additional evidence relied upon to show that there was no service of notice is substantially as follows: The appearance docket fails to show the filing of an original notice, the fee book fails to show that any costs were taxed for serving an original notice, and diligent search of the files of the clerk’s office fails to discover the presence of such a notice. The absence of a notice in the files may be accounted for by the fact that the’files were not then, as now, inclosed in wrappers, but merely held together by rubber bands, and that between the rendition of the judgment and the search the clerk’s office .was removed