Hale v. First National Bank

50 Iowa 642 | Iowa | 1879

Seevers, J.

i jwB.aM3sitT: n°tice. I. The ground upon which it is sought to set. aside the..judgment is that notice of the pendency of the a&ti°.n was not served on or given the defendant tlaereiii and plaintiff in this.

The averments in the petition in relation to the,. service of notice are as follows:

“2. That there was no personal service of notice in said action, and no appearance of petitioner thereto, as shown by the records in said action, the same referred to above.

“3. That November 15, 1872, on the back of an original notice in said cause an affidavit was made in words and figures following:

“ ‘AFFIDAVIT.

“ ‘I. A. H. Patterson, one of the attorneys for the plaintiff in this cause, on my oath say that service of the within notice cannot be made on the defendant Wm. C. Hale in the State of Iowa, he not being a resident of said State.

“ ‘A. H. Patterson.

“ ‘Subscribed and sworn to before me by A. H. Patterson, November, 15, 1872.

“ ‘C. T. Jones, Clerk D. C.:

“4. ■ Which was filed, as shown by the records, in words following : . ■ . .

“ ‘Filed November 15, 1872.

“ ‘C. T. Jones, Clerk D. C.’

“5. That there was a publication of notice, as shown by the record, to which reference has been made, in which printed notice the note is described as for $125.00, instead of $12,500.00, as set out in the petition; and the affidavit of publication filed in said cause, appearing of record, is in words following:

“6. ‘I, John Wiseman, on oath, say I am editor of the Washington Gazette, a newspaper published weekly in the city of Washington, Washington county, Iowa; that the original notice hereto attached was published 4four consecutive weeks in said paper, the first publication being November 1, 1872, the last November 22, 1872.

“ ‘John Wiseman.

“‘Subscribed and sworn to before me January 20, 1873.

“ ‘A. H. Patterson, Notary Public.’

“7. Connected with which is the printed slip containing said notice as published, and the above and foregoing is all the record or showing with reference to the original notice or the service thereof.

“8. That from the foregoing the said court in said c&use assumed jurisdiction over the mortgaged premises.”

The answer admitted the foregoing allegations to be true, and no testimony was introduced in relation thereto. The judgment or decree was incorporated into and made a part of the petition, and it contained 'the following statement: “This cause came on to be heard, and, it appearing that the defendant was duly served with notice of the pendency of this cause, and he, being three times solemnly called, comes not, but wholly made default,” etc.

The allegations of the petition are that there was no personal service of notice, and no appearance, and that the record shows there was a notice published, and that the record fails to show the service of any other notice, and that therefrom the court assumed jurisdiction of the mortgaged premises. All this is admitted by the answer,-but nothing more.

It is not alleged in the petition in clear and distinct te^ms that no other notice was published, nor that the court did not have before it other evidence of service than is stated in the petition. No such matters are, therefore, admitted in the answer. It devolved on the plaintiff to allege and prove that no notice was served or published. Instead of doing this, thé decree, which was a part of the petition, stated' that the court found there had been service of notice. Ij; must be presumed the court inquired and advisedly made the finding aforesaid. It is the" duty of the court before entering a default, where there is no appearance, to inspect the record and determine whether notice has been given as required by law. Code, § 2870.

The fact that the record now fails to show any other evidence of service than above indicated does not meet the necessities of the case. The record may not be full and complete, or the evidence before the court, or a portion of it, may have been lost or mislaid. In short, the presumptions are all in favor of the finding of the court, and the party, claiming the fact to be otherwise must allege and clearly prove such fact. Woodbury v. Maguire, 42 Iowa, 339, and authorities there cited; Nash v. Church, 10 Wis., 312; Gimmel v. Rice, 13 Minn., 40; Boswell v. Sharp, 15 Ohio, 447.

We do not determine what would be the rule if the petition had alleged no other notice than therein stated had' been served, and the record, upon being introduced, had shown no other. ’ No such case is before us.

2._..agree. ment to seii. II. The plaintiff and Salter owned jointly the “Hale,ele- , vator mill property. ” The mortgage executed by plaintiff to Salter, and which was foreclosed in 1873, was on tmfiiyided one-half of said property. In 1874 Salter and George H. Hale entered into a written contract whereby it was agreed that the former had sold to the latter the said property, and also the judgment against the plaintiff rendered on the foreclosure of said mortgage, amounting to sixteen thousand five hundred and thirty-four dollars and seventy-five cents, with interest at ten per cent from its rendition, “and for the purpose of carrying out the above conditions fully, Salter agreed to make, execute, acknowledge and deliver into the hands of Messrs. Patterson & Rheinart, as an escrow, a deed of release and quit-claim of the real estate above described, and to execute, acknowledge and deliver into the hands of the same parties a transfer of the judgment heretofore recited, and all rights of action against W. C. Hale upon the cause of action embraced in said action. All of said instruments to be delivered by said Patterson & Rheinart to George H. Hale, on his fully complying with the covenants herein written and on his part to be performed.”

Geoorge H. Hale agreed to pay for said property, rights and credits seven thousand five hundred dollars. There was. two thousand dollars paid in cash, and the balance was to be paid in three yearly payments.

What is called a supplementary contract was made afterward, but on the same day, between George H. Hale and Salter, as is claimed. This contract was not signed by Salter, but by “Patterson & Rheinart,” “A. T. Salter’s attorneys.” We are unable to discover any authority Patterson & Rheinart had to execute said contract, and thereby bind Salter. We doubt if it was so intended. But whether it was or not, we are unable to see that it in any respect changes or affects the rights of the parties.

George H. Hale took possession of the elevator property, and, it is claimed, he and the plaintiff entered into a verbal contract, whereby it was agreed the latter should work and labor for one year for the former, and in consideration thereof George H. Hale agreed to satisfy the Salter judgment. The labor was performed. The estimated value thereof was one thousand dollars.

During the time the plaintiff was so laboring, or afterward, George H. Hale became indebted to the bank, and, as security therefor, he assigned to the bank the Salter contract and all rights he obtained thereunder. The two last amounts agreed to be paid Salter were unpaid, and the bank paid the same, and Salter conveyed the real estate directly to the bank, and assigned to it the said judgment and cause of action on which it was based. The bank had no notice of the alleged contract between the plaintiff and George H. Hale.

The plaintiff• claims the bank took the judgment subject to the equities existing between the two»Hales, and, therefore, he is entitled to have the judgment satisfied. On the other hand, it is claimed the bank succeeded to all the rights of Salter, and cannot be charged with such equities, and this latter view seems to us to be the correct one.

George H. Hale never in fact owned the judgment. He had simply made a contract to purchase the same, and only upon complying therewith would he become such owner. George H. Hale had no power to incumber the judgment as between him and Salter, and it must be presumed the bank so knew, and contracted accordingly. When it got Salter’s title it stood in his shoes, and not in those of George H. Hale. The latter was a mere instrument the more readily to enable the bank to get Salter’s title, and it was chargeable with the equities only between George H. Hale and Salter.

III. It is claimed the mortgagor, W. C. Hale, surrendered the possession of the preinises to the mortgagee, and he is, therefore, entitled to rents and profits. No such claim is made in the petition. The testimony as to the value of the rents is exceedingly meager. The decree of the court malms no allusion thereto. We, therefore, are of the opinion this point is made for the first time in this court. The case made in the petition is based on an entirely different theory. We are, therefore, not disposed to disturb the decree below in this respect.

Affirmed.