Longueville v. May

115 Iowa 709 | Iowa | 1901

Waterman, J.

The showing in the record is sufficient to sustain the jurisdiction of this court on appeal.

II. There were several motions and a lengthy demurrer filed by plaintiffs, attacking the pleadings of defendant aid intervener. It would but tend to confuse were- we to set these out. It is enough to say that they were sustained in part, and a number of amendments filed in behalf of the Mays. Testimony was then taken, much of which, offered in behalf of the latter was ruled out on objection. As a result of the various rulings, the matters which, we now set out are submitted for our decision.

1 It was sought by intervener to show that he was not indebted to plaintiffs. The defenses to a foreign judgment are fraud in obtaining it, want of jurisdiction in the trial court satisfaction and discharge, or its bar by limitation. Rorer, Inter-State Law, 102 et seq. Where the trial court has jurisdiction, such a judgment in an action thereon in a sister state is conclusive as to the merits of the controversy. McElmoyle v. Cohen, 13 Pet. 312 (10 L. Ed. 177) ; Christmas v. Russell, 5 Wall. 302 (18 L. Ed. 475); Bissell v. Briggs, 9 Mass. 462 (6 Am. Dec. 88) ; Packer v. Thompson, 25 Neb. 688 (41 N. W. Rep. 650). But it is said that Conrad May was in Jo Daviess county, 111., for the purpose of giving testimony in another action, when the summons was served- upon him which affords foundation for this judgment. It is thought that the Illinois court had no jurisdiction because of these facts. It is no defense that the judgment debtor was a nonresident, if personal service was made upon him within the state. Rorer, Inter-State Law, 104. The distinction between this case and that of Dunlap v. Cody, 31 Iowa, 260, is that in the latter case fraud was practiced to bring the defendant within the jurisdiction, in order to serve the summons upon him. In the case at bar, while it is alleged the action in Jo Daviess county was brought for the purpose of defrauding plaintiff’s there is no allegation that defendant’s presence in that county when the summons was served was procured by fraud, nor is there any evidence tending to so show.

2 III. The trial court construed the pleading of intervener as raising the question whether any summons was served upon defendant in the action in which the judgment sued upon was rendered. Evidence was introduced on this question by both sides. It was in serious conflict, and but for the facts we are about to state would have .presented an issue for the jury. On the part of defendant it was shown that the summons was not read to him, nor Avas he given a copy by the officer who acted in the matter. It does not affirmatively appear, however, that defendant did not understand Avhat was intended, or was ignorant of the fact that the action was pending. This Avas a case of defective or insufficient service, and it cannot be taken advantage of collaterally. Bonsall v. Isett, 14 Iowa, 309; Bokar v. Chapline, 12 Iowa, 204; Schneitman v. Noble, 75 Iowa, 120. In the first of these cases it is said: “There is a clear distinction between a service insufficient only in the manner of making it, and a case where nO1 service at all is made, or attempted to' be made. In the latter case there is no question of jurisdiction to decide, and if a judgment is rendered under such circumstances against a party, it AArould be a nullity. In the former case there is a question of jurisdiction raised, which the court must, ex necessitate, decide. If it does so erroneously against tbe defendant, and renders a judgment for the plaintiff, sucb judgment would be voidable, nevertheless just as binding on tbe parties as any other judgment or decree until reversed and corrected on appeal.” There is no question but an attempt at service was made by tbe officer in this case. Tbe ground of complaint is that tbe forms of law were not complied with by him; in other words, tbe position of appellants, under tbe evidence, can only be that tbe service was defective.

3 After tbe evidence was all in, tbe intervener sought to file an amendment making more clear bis allegation that summons bad not been lawfully served upon him in tbe Illinois action. Tbe court denied him tbe right to do so. This ruling could not have been prejudicial, for, as we have said, tbe trial court bad proceeded on the theory that the. issue was presented by tbe original pleading in intervention.

4 IV. Error is predicated on tbe fact that tbe jury was not allowed to assess tbe amount of plaintiff’s' recovery. If plaintiffs were entitled to recover at all, tbe measure thereof would be tbe amount due on tbe judgment. There is no' claim that they were allowed more than this. There was nothing for a jury to do which might not properly be done by tbe court. Woodbridge v. Austin, 81 Iowa, 672.

5 V. Some questions are raised on tbe part of tbe garnishee. ■ He resided in Dubuque county, in this state, and judgment was rendered against him in tbe state of Illinois. These facts lie sets up in bis answer. While tbe authorities are in conflict, there are,'as claimed by appellant, cases which support tbe rule that a judgment cannot be rendered against a garnishee on execution outside tbe state of bis residence, unless at a place where tbe contract with tbe principal debtor was to be performed, or unless be has property” in bis possession at tbe time. and place of . garnishment belonging to sucb debtor. Insurance Co. v. Eaton, 35 Me. 391; Ray v. Underwood, 3 Pick. 302; Bush v. Nance, 61 Miss. 237; Sawyer v. Thompson, 24 N. H. 510. Some attention was given this subject by this court in German Bank v. American Fire Ins. Co., 83 Iowa, 491, but no1 definite conclusion was announced. But, adopting tbis rule, wbicb we do only for tbe purpose of argument and it will not avail tbe garnisbee. Tbe action against him was on a judgment, wbicb we accept as sufficient in form, because no question is raised as to tbe contents of tbe entry. Tbe burden was upon him, then, to allege and prove every fact necessary to establish tbe invalidity of such judgment. Lowe v. Lowe, 40 Iowa, 220; Pollard v. Baldwin, 22 Iowa, 328.

6 There is no allegation nor offer of proof on tbe part of tbe garnisbee that tbe judgment against him was not rendered on a contract wbicb was to be performed in tbe state of Illinois, and that be bad no property of tbe principal debtor in bis possession when garnished. It is true tbe answer contains a general allegation that tbe garnisbee was not in any way indebted to Conrad May, but tbis was held bad, and'properly so, on demurrer. No such defense, as we have already shown, is permissible against a judgment. Tbe particular facts that might have been proved with relation to tbe indebtedness, wbicb must be conclusively presumed to exist, were not set up> nor was any testimony to establish them offered.

Some' minor matters are discussed by counsel, upon wbicb we need only to say .their contentions are without, merit. — Affirmed.