McGlaughlin v. O'Rourke

12 Iowa 459 | Iowa | 1861

BaldwiN, J.

This was a proceeding by the plaintiff to foreclose a mortgage executed by Patrick and Elizabeth O’Rourke, bis wife, to secure the payment of a promissory note signed by the husband alone. One Gillaspie, who claimed an interest in the mortgaged property, subject to the lien of plaintiff’s mortgage, was also made party defendant.

The defendants having failed to answer, a decree was rendered in favor of plaintiff as by default, upon the 21st day of December, 1859. Judgment for the amount due on the note was entered up by order of the court against both the husband and wife, and a special execution awarded, directing the mortgaged property to be sold to satisfy said debt, and in case that such property did not sell for a sufficient sum to satisfy the said debt, a general execution was directed to issue against the property of defendants, for any balance due.

A special execution was subsequently issued and the mortgaged property sold at sheriff sale and bid in by the plaintiff. After such sale, and upon the 19th day of March, 1860, Patrick O’Rourke appealed from the judgment of the District Court to this court. Upon the day the notice of appeal was served, the District Court upon the motion of plaintiff’s counsel allowed the return on the original notice to be amended. It does not appear from the record that any notice of this action of the District Court was served upon appellant, nor does it appear that defendant or his counsel were present when such order was made.. This cause was heard and determined in this court at the June Term 1860, and was reversed as to Patrick O’Rourke, and affirmed as to the other defendants.

Upon an application for a rehearing, and after a further consideration, vre have come to the conclusion that the judgment against Elizabeth O’Rourke was erroneous and should also have been reversed.

The original service as against Patrick, was clearly defective. The question then to be considered was, whether the defect was cured by the amended return. In the former opinion we held that it was not.

The appeal had been taken upon the day the District Court permitted the plaintiffs to have the return amended. If the appeal was taken before this order was made, the District Court had no jurisdiction over the cause. But granting that the appeal had not been taken prior to this order, but after judgment, execution and sale of the property, and such a lapse of time, the court could not so amend its record without, at least, giving the opposite party notice of such proceeding.

The judgment as against Elizabeth O’Rourke, should be reversed, for the reason in the first place, that no such judgment was asked for in the plaintiff’s petition. The prayer of the petition is for the foreclosure of her equity of redemption in the mortgaged premises. No greater relief should have been given by the court than was prayed for. But in the second place, even if such judgment had been prayed for, under the ruling of this court in the case of Rodemyer v. Rodman, 5 Iowa 429, no personal judgment could have been rendered against the wife without some allegation that it was a debt for which her separate property would be liable.

Misconceiving, as we did, in our former opinion, the construction given to §§ 2084 and 2085, of the Code, by this court in the case of Deland v. Mershon and wife, 7 Iowa 70. The judgment is

Reversed.