Lang v. Dunn

145 Iowa 363 | Iowa | 1910

Deemer, C. J.

The judgment of which plaintiff complains, and the enforcement of which he seeks to restrain, was rendered by a justice of the peace in Hardin County, Iowa, after personal service of notice upon the-plaintiff in Dubuque County, being the county of his residence. Jurisdiction was conferred by a provision of the contract upon which the action was bottomed, making the place of performance Eldora, in Hardin County. It is claimed that this contract was obtained through the fraud and false representations of the agent of the defendant I. X. L. Remedy Company, with whom the contract was made. There is no claim, hownver, that plaintiff did not sign the contract as written and printed; nor is there any claim of alteration thereof. The fraud charged inhered in the making of the contract, and not in something which thereafter transpired. Plaintiff was duly served with an original notice of the suit brought in Plardin County; but made no defense thereto. Judgment was rendered by the justice before whom the action was commenced upon plaintiff’s default, and thereafter this judgment was transcrip ted to the district court of Hardin County. The execution which plaintiff seeks to restrain was sued out upon the judgment of the Hardin County district court. There is no claim in the pleadings that there was any fraud in the proceedings leading up to the judgment. These all appear to be regular and in accord with statute. There is, then, no extraneous fraud in- the matter. The fraud pleaded would have been a good defense for plaintiff had he appeared and pleaded the same in the action before the justice, and, as he was in no manner induced to withhold his defense, all matters inhering in the judgment * itself • are foreclosed by that judgment. If the contract upon which the judgment was obtained was forged or altered so that it was not plaintiff’s contract, a different rule would obtain. Or if the plaintiff had been induced by some extrinsic or collateral fraud not to make defense,- or if the judgment itself had been obtained by fraud, plaintiff might attack it at any time or place. This is- what is held in the cases cited by appellant’s counsel. See Cooley v. Barker, 122 Iowa, 440; Iowa Union Tel. Co. v. Boylan, 86 Iowa, 90; Leonard v. Ins. Co., 101 Iowa, 482; Cowin v. Toole, 31 Iowa, 513; Hawkeye Ins. Co. v. Huston, 115 Iowa, 621, and other like cases. This action is clearly ruled by Ulber v. Dunn, 143 Iowa, 260, 119 N. W. 269, decided since the rulings complained of were made. See, also, Sutton v. Weber, 127 Iowa, 361.

Even if plaintiff had a right to attack the judgment, his proceedings. should have been brought in Hardin county, where the judgment was obtained and where it now exists. See cases heretofore cited, and Brunk v. Moulton Bank, 121 Iowa, 14.

The trial court was right in denying the temporary writ and in sustaining the demurrer. The judgment must therefore be, and it is, affirmed.