Grattan v. Matteson

51 Iowa 622 | Iowa | 1879

Day, J.

i jtjdsotjsht • cute“'wherí!io be brought. — Section 3396 of the Code provides: “When proceedings in a civil action or on a judgment or final order are sought to be enjoined, the suit must be brought in coimty and court in which such action is pending, or the judgment or order was obtained.” In Lockwood v. Kitteringham, 42 Iowa, 257, it -was said in substance that this section is not applicable where it is sought to enjoin the sale of property under a general execution, where it is alleged that the property does not belong to the defendant in execution, but to a third person who seeks the injunction. This question was not involved in that case, and what was there said concerning it is obiter. This dictum, if it should be conceded to present a correct statement of the law, is not applicable to the case at bar. In this -.case it is conceded that the property in question was, at the time of the rendition of the judgment sought tobe enjoined, the property of the judgment defendant; ■ and the injxmction is sought, not upon the ground that the property is not liable for the satisfaction of the judgment, if valid, but solely upon the ground that the judgment is void, and, for that reason, no lien upon the property. It is plain that this proceeding does not involve the question of the ownership of the property at -the date of tlie rendition of the judgment, but the validity of the judgment itself. It is claimed’ that section 3396 is not applicable because it is alleged that the judgment in question is void, and hence no judgment. But it can be determined that the judgment is void only by judicial investigation. In form there is a judgment in the Winneshiek Circuit Court against John and Alexander Lawrence, which is a lien upon the property in controversy. In Anderson v. Hall, 48 Iowa 346, this section was applied to a proceeding to enjoin an execution issued upon a judgment alleged to be void. That case is decisive of this.

The conclusion which we have reached renders a determination of the other questions presented unnecessary if not improper.

Reversed.