Hunger v. Barlow, 39 Iowa 539

Hunger v. Barlow

39 Iowa 539 | Iowa | 1874

Cole, J.

i JTO8ISDIOmeiit!3Uds The first question presented is as to the validity of the judgment of foreclosure. If that is valid, the plaintiff has no title, for all his title and interest was barred and cut off by the decree. By reason of the loss or destruction of all the papers in the tax title foreclosure case, or other reason, there are no papers or records connected with that case, introduced or offered in evidence in this, save only the decree -itself, the material parts of which are set out in the statement preceding this opinion. What is the effect of that judgment or decree of foreclosure so rendered by the District Court on Nov. 13, 1855, when it is neither supported or contradicted by any testimony whatever? This question may be satisfactorily answered by quoting the language of a former opinion of this court, in the case of Boker et al. v. Chapline et al., 12 Iowa, 201: “ The court rendering the judgment was one of general jurisdiction. As such, a want of authority to act will not be presumed. Nor, to affirmatively establish its jurisdiction, is it necessary that the facts, evidence or circumstances conferring it should be set out in the record. And should the record disclose nothing, jurisdiction over the person, as well as the subject matter, will always be presumed, when the validity of the judgment is questioned collaterally.” See the authorities there cited on page 206.

2.-: —: conclusivenessoí. This, it seems to us, is the end of the case, unless we overrule that decision. But this we cannot do, for it has the support of well recognized elementary principles, as well as of the almost unbroken current of the authorities. There are, however, two incidental questions made, which should receive attention. Eirst, it is claimed that in the matter of the foreclosure of the tax deed, the District Court, though . . ° a court ox general jurisdiction, was acting outside of its common law or general jurisdiction, and exercising special statutory powers, and hence the facts showing its jurisdiction should appear of record in order to give its judgment any validity. Without here controverting the correctness of the claim, as applied to a case within its principle, we are clear it does not apply to this case. Here the jurisdic*542tion 'conferred upon the District Court was not special, but its general jurisdiction was extended over the subject matter of the foreclosure of tax deeds, and was to be exercised in the same manner and with the same effect upon that subject matter as upon all others. It was not, therefore, a special, a summary, or a statutory jurisdiction, in the sense of those terms as used when applied to the class of eases upon which the claim of plaintiff’s counsel in this regard, is based. But further than this, the statute itself conferring the jurisdiction over the matter of foreclosing tax deeds, says: “The court shall have jurisdiction of such actions as iu chancery, and the decree therein shall be conclusive in the same degree as in other actions.” Code of 1851, Sec. 508. See, also, Gaylord v. Scharff, 6 Iowa, 179. It is a judicial proceeding, both valid and constitutional.

Second, the plaintiff' introduced, as a witness, the attorney who brought this suit, and he testified that before bringing this action he examined carefully in the clerk’s office, and found the papers in the foreclosure suit, and there was no notice with said papers, except, one, that he could find, and that was by publication, and was the same as the caption of the decree as shown in this case. This, without more, it seems to us, is not sufficient to overturn the presumptions in favor of the decree.

The decree being valid vests the title in the defendant, and renders the determination of the question of possession unnecessary. ■

Affirmed.