90 Iowa 90 | Iowa | 1894
I. The principal question presented on this appeal is as to the jurisdiction of the superior court. The following is a-sufficient statement of the proceedings for the purposes of that question: On December 5, 1891, the plaintiff, as trustee, commenced this action to foreclose a mortgage executed to it as trustee by the defendant on all its property as an entirety, including certain real estate in the city of Keokulf, to secure to the holders thereof two hundred bonds of five hundred dollars each. December 24, 1891, appellant Anderson intervened, claiming to hold and own twenty-six of said bonds, namely, numbers 34 to 60, inclusive, and joining with the plaintiff in the prayer for judgment. Eleven' other bondholders and creditors also intervened, and on February 19, 1892, all parties to the action appearing, an entry was made of record, in substance as follows: The court found that the mortgaged property “is at present in such a condition that its proper preservation requires large amounts to be expended in the betterment and improvement of said property; that said property in its present condition is of a perishable nature, and the interest of all parties concerned in same requires a speedy sale of said property to be made.” The entry continues: “It is therefore ordered, considered and adjudged by the court, all parties to this controversy expressly'agreeing hereto, and further agreeing that this court has complete jurisdiction, that the sale hereinafter provided shall be without right of redemption, and shall convey all of the interests of all of the parties, both complainants, defendants, and ibtervenors, to this controversy, in fee
The substance of the affidavit is that on the twentieth of April, 1892, affiant said to S. P. Townsend that he was willing to sell his interest at a fair price, or to go in with other bondholders and purchase the property, and pay his proportionate share to fix the road up. That Townsend said he would rather sell at thirty-five cents on the dollar, but did not care to make arrangements with other bondholders to bid in the property. That one Wernse, who held two thousand dollars of bonds authorized affiant to bid in the road for himself and such persons as might want to go in at twenty-five thousand dollars. That affiant telegraphed one Súber to come and attend the sale, and that Súber had ready money, which he could use to buy in the property. That they attended the sale, and that when Mr. Kenney offered the property “notice was given by B. A. Dolan, in the hearing of every one, that the superior court had no power to issue any executions for the sale of real estate, and that it was his purpose to at once levy on the power house and real estate” for a judgment he had, “and that Súber then declined to bid, and that affiantwas not prepared to do so without his assistance.'” It was admitted that, a few days after the postponement. of the sale, the attorney for Townsend & Son
II. In considering the question of jurisdiction we will refer to the act providing for superior courts as found in McClain’s Annotated Code. Section 769 confers jurisdiction on superior courts “in all civil matters concurrent with the district court as now and as may hereafter be provided by law, except in probate matters and actions for divorce, alimony and separate maintenance.” Section 772 is as follows: “The superior court shall be a court of record, and all statutes in force respecting venue and commencement of actions, the jurisdiction, process, and practice of the district court, the pleadings and mode of trial of action at law or in equity, and the enforcement of its judgments by execution or otherwise, and the allowance and taxing of costs, and the making of rules for practice or otherwise, shall be deemed applicable to the superior court, except wherein the same may be inconsistent with the provisions of this act. The records and papers properly filed in a cause in the district court are equally evidence in said superior court.” If nothing further appeared, the jurisdiction of superior
It is clear, however, that they are not liens upon real estate, unless made so as provided in said section 782; and that real estate can not be levied on or sold on process issued out of the .superior court when transcript of its judgment has been filed in the district court. The pro
III. It will be seen from the statement of the ease that the entire proceedings following the filing of the petition up to and including the sale were in pursuance of the agreement of all the parties, and that the sale was made in all respects in exact accordance with the manner and terms agreed upon; that no judgment had been entered prior to the entry of the agreement to sell, in the form of a decree, and that no judgment was entered, except that in favor of appellants, and no decree of foreclosure, before the sale in question was made. It does not appear that any process was issued out of the superior court for the sale of this property,