Lind v. Adams

10 Iowa 398 | Iowa | 1860

Lowe, C. J.

The history of tbis case is a brief one. At tbe November Term, 1857, of tbe District Court of Lucas county, R. S. Adams recovered a judgment by default, (after due service, as the record shows,) against one William R. Blue. Tbe suit was upon a note of band, and tbe proper amount being a mere matter of computation, tbe clerk, under section 1828 of the Code, was authorized to assess tbe same. This he did not do until the 16th day of March, 1859, although at the time, he entered the form of the judgment, leaving a blank for the sum recovered and the costs. On the 18th day of December, 1858, Wm. R. Blue conveyed a certain tract of land to the plaintiff. Two days thereafter Adams sued out his execution for $116.80, and $6.90 costs, upon the judgment aforesaid, and levied upon and sold the tract of land conveyed as aforesaid to the plaintiff; who claimed that such execution and sale created a cloud upon his title, and filed his bill in this case to set aside such sale and thus remove the cloud complained of. To this bill the defendant demurred. The demurrer was sustained and the cause dismissed. The plaintiff claims that the court erred in this decision, which is the only point raised for our consideration.

A judgment is always open to receive the costs when they may be taxed up in vacation by the clerk, and so far as the costs are concerned the judgment alluded to was a valid one, and operated as a lien upon the land in question, from the time of its rendition in November, 1857; so that the plaintiff, Lind, being affected with constructive notice of this lien was not in legal contemplation an innocent purchaser. It is hardly necessary for us to determine the question of the power of the clerk to fill up the blank in a judgment in vacation, some fifteen months after its rendition, by assessing the amount of the note sued upon. It is very clear that so palpable an omission could be supplied by the court at a subsequent term, and if the clerk should exercise this power in vacation it could only be irregularity of which the plaintiff has no right, in this collateral way, to complain, but which perhaps might be reached by a writ of error, in a direct proceeding between the parties. The eause being properly dismissed under the demurrer, the judgment is affirmed.