119 Iowa 41 | Iowa | 1903
As defendant relies solely on its decree obtained in the Webster county district court, the decision must turn on the effect to be given that decree. This is not a direct, but a collateral attack, upon that decision; and defendant contends that as tbe decree reeites that the court rendering it had examined the original notice, and found that plaintiff herein, Helena Miller, had been duly served personally with an original notice, it is not permissible for plaintiff to show that in faet no notice was served upon her. Appellant also contends that, even conceding such evidence was admissible, yet there was not sufficient to justify the court in ignoring the decree, and that the finding of the district court that there was no notice should be set aside, and the integrity of the decree preserved.
As to the first point, it is now well settled in this state that, even on a collateral attack, it is competent to show that there was in fact no service of an original notice on the party sought to be concluded by the decree. If there was no service, the decree is void, and it may be attacked at any time, and by any form of procedure which brings the legality of the decree in question. Priestman v. Priestman, 103 Iowa, 320; Bradley v. Jamison, 46 Iowa, 69; McAllister
Plaintiff’s husband testified that he never heard of the railroad company’s making any claim to the property until the year 1899 (the decree was rendered in January, 1898), when the county treasurer informed him that there had been a “change” in the property; that he did not know of the sheriff or any other officer having served a notice upon his wife with reference to the property; and that he never heard of any lawsuit until about the time this case was brought on for trial, in September of the year 1900. Plaintiff testified as follows: “I am the wife of Phillip Miller, and know this property down here, near the Rock Island depot. Mr. Miller, my husband, does the business for me. He deeded it to me four or five years ago. Q. Did anybody at any time come and serve any papers on you about this property? Do you know Charlie Hohn? A. Yes. Q. Deputy sheriff? Used to be sheriff? A. Yes. Q. Did he serve any papers on you? A. Not a paper. He was never in my house with any paper. I have known Charlie for a long time. I don’t know the sheriff. No one served any papers on me about any law in court. I speak English very badly” Defendant introduced the petition filed in its case against plaintiff and - others, and the decree
This is all the evidence bearing on the question now before us. Defendant did not introduce- the original notice, with the return thereon; nor did it in any manner attempt to account for its loss, if it was lost. It did not produce the appearance docket, nor explain its nonproduction. It is evident from the cross-examination of the sheriff that an original notice, with a return as to some twenty-five different persons, was in the hands of the defendant’s attorneys, but for some reason it was not offered in evidence by either party. We may fairly assume that this return did not show service on the plaintiff. The decree against plaintiff was rendered on January 18, 1898, and this action was commenced May 1% 1899. It is hardly to be presumed that the original notices were lost during this interim. If there was an original notice showing service, defendant should have produced it; and, owing to the short time elapsing between the rendition of the decree and the attaek made upon it, its failure to produce an original notice showing service on defendants, or to show the loss of such notice, should be regarded as a circumstance tending to show no service.
It is contended that there might have been substituted service, and that plaintiff has not negatived such notiee. Suffice it to say in answer to this claim that plaintiff’s husband, who, so far as shown, is the only person upon whom substituted service might have been made, in effect denies any such service. The competency of the sheriff’s evidence, in the absence of proof of loss of the original notice, is doubtful, to say the least; and, in view of his cross-examination, little, if any, weight should be given it. We have nothing, then, but a decree reciting service on