71 Iowa 636 | Iowa | 1887
It is alleged in the petition that plaintiff purchased of defendant a certain tract of real estate, at the
The prayer of the petition is that'the judgment be modified by reducing the amount thereof to the sum actually due upon the bond, and by adding thereto a provision that execution shall not issue for its enforcement until defendant procures title to that portion of the real estate to which he does not hold the title, and that the sale of the real estate on the special execution be set aside, and the amount paid by plaintiff subsequent to the rendition of the judgment in satisfaction thereof be credited thereon.
The petition in this case was filed after the expiration of one year, and one of the grounds of the demurrer is that no relief can be granted against the judgment because of that fact. It has been held, however, that courts of equity have jurisdiction to grant relief against judgments, in certain cases, where the ground of relief is not discovered until after the expiration of one year from the rendition of the judgment. Young v. Tucker, 39 Iowa, 596 ; District Tp. of Newton v. White, 42 Id., 608 ; Lumpkin v. Snook, 63 Id., 515. It is said in the last case, however, that the extent of the jurisdiction of the court of equity is to grant relief on the grounds enumerated in section 3154. The question whether the judgment can be modified, then, depends upon whether the facts alleged in the petition bring the case within the provisions of that section. We are clearly of the opinion that they do not. The judgment is referred to and made part of the petition, and the record entry is set out in an amended abstract filed bv the appellee. It is shown by the judgment that, while the plaintiff did not file an answer in the cause in which it was entered, an attorney appeared for her at the healing, and consented to the judgment, and that the amount of the indebtedness was agreed upon by the parties, and the judgment is for that amount. Now, the authority of the attorney to appear for her and bind her by the agreement as to the amount of the indebtedness, and to consent
The judgment could be modified, as to the amount of the recovery, only upon some of the grounds specified in the third, fourth or seventh subdivisions of the section, which are for mistake or omission of the clerk, fraud by the successful party in obtaining the judgment, and unavoidable casualty or misfortune preventing the party from prosecuting or defending. None of these grounds is shown to exist, either by general averment, or by statement of facts in the petition.
It is alleged in the petition that defendant is insolvent. But that is immaterial, as plaintiff might have pleaded the fact before the judgment was rendered, but neglected to do so. She is not now entitled to have it modified for her protection against defendant’s insolvency.
As was stated above, the property was subject to be sold ■ in satisfaction of the balance due on the judgment. No irregularities or illegalities in the proceedings of the sale are shown. There is therefore no ground for setting it aside. Plaintiff’s remedy was to redeem the property from the sale. But she has failed to exercise that right within the time prescribed by the statute, and she is consequently without remedy.
Affirmed.