Milne v. Van Buskirk, 9 Iowa 558

Milne v. Van Buskirk

9 Iowa 558 | Iowa | 1859

Wright, C. J.

—

The demurrer was properly sustained. Defendants remedy was by'writ of error coram nobis or other similar process in the court where the judgment was rendered. If there was an error in fact in-permitting defendant to appear by attorney, when a minor, it was an irregularity, and as such no more affected the validity of the judgment, than if it had been an error in law. In either case, the error whether of law or fact, does not render a judgment void; but a party may have his remedy in the state where the judgment was rendered either in the same or in an appellate tribunal. The defence cannot prevail here; for, until set aside, the judgment would have full force and effect in Ohio, and is entitled to the same here. The error does not go to the jurisdiction of the court rendering the judgment. Austin v. Charleston Female Seminary, 8 Met. 196.

*560This action was commenced on tbe 9th of March, 1857. On the trial defendant proved by the proper records that in June, 1857, he filed in the Court of Common Pleas of Hamilton county, Ohio, a petition, praying the vacation of said judgment on account of the matters set up in the first clause of his answer, and for an injunction; that a summons issued, which was returned, served; that plaintiff appeared and demurred to the petition; that an order was made in said petition allowing ah injunction by the proper judge, when defendant should give a sufficient bond in a sum fixed, and that the bond was executed and approved. This bond was filed and approved September 28th, 1857, and the trial and judgment had in this case in March, 1859.

The court instructed the jury that though they might find that an injunction was ordered to issue, to restrain the collection of the judgment, yet unless they also found that the writ had been duly served, they must render their verdict for the plaintiff. In this instruction we think there was error. The plaintiff in this and the original case was duly served with the filing of the petition for an injunction and appeared to the same. This was a proceeding in court and not before a single judge. The court after overruling the demurrer to the petition, allowed the injunction upon the giving of the bond, which order was complied with. It stands there as an order made by the' court, directing the suspension of further proceedings upon a judgment appearing upon its own records, and the service of the writ was in no sense essential to make more effective Or binding the order thus made. It will be observed that the order was made in the same court in which the judgment was rendered; that the parties were before the court, and had presented the question of petitioner’s right to the injunction in their argument of the demurrer, and after the order thus made the issuing of the writ would be an unmeaning and useless formality.

It has been repeatedly determined that when a party is in court and hears the order pronounced, he is as much bound *561as if be had been actually served with the writ. 1 Eden on Inj. 93 ; Morrell v. Lawrence, 12 John. 521; Kempton v. Coe, 2. Ves. & B. 349; Heame v. Tenart, 14 Ves. 136.

Judgment reversed.