73 Iowa 15 | Iowa | 1887
The foregoing are the material facts in the case, upon which the court found the rights of the parties to be as follows: “ I find, then, as matter of law, that said judgment is null and void, and that in this action the defendant would not be entitled to a judgment for any amount against the plaintiff, the note being barred, and nothing being admitted as now due; and that plaintiff is therefore entitled to a decree herein as prayed, at cost of defendants. Decree and judgment will therefore be entered accordingly, as of last day of March term of said court in favor of plaintiff.”
The cause has once before been in this court on a demurrer to the petition. (See 66 Iowa, 682.) It was there held that the petition presented a good cause of action, and that the
It appears to us that the above quotation from the former opinion disposes of the present appeal. It is true that it appeared from the evidence upon the trial that Gerrish, the plaintiff, executed the note, and that he had never paid it. The evidence does not show whether or not it has been paid by Gleason. Perhaps, as the judgment appears to be unpaid, and an execution has been issued thereon, it should be presumed that it has not been paid. But we do not think this is a controlling fact in the case. The facts show that Gerrish has a good defense to the note. It has long since been barred by the statute of limitations. As the judgment is absolutely void for want of jurisdiction of the person of Gerrish, he cannot be placed in any worse position than he would have been if no judgment had been rendered against him; and if an action were now commenced upon the note he has a complete defense thereto. The judgment was properly set aside and vacated, not because he has a good defense to the judgment, but because the claim upon which it is founded is not now a valid claim against him, and he has the right to be placed in the same position with reference to the claim that he would have if no suit had ever been commenced upon it.
This action is grounded upon a mistake in taking a judgment against a party without having personal jurisdiction of him, and, as the plaintiff did not discover the mistake until the year 1882, the statute of limitations did not commence to run until that time, and the action was brought in the month of August, 1884, and within proper time, and under subdivision 4 of section 2529 of the Code.
We think the decree of the district court must, be
Affirmed.