Mudge v. Livermore

148 Iowa 472 | Iowa | 1909

Ladd, J.

Section 3955 of the Code declares that “execution may issue at any time before a judgment is barred by the statute of limitations,” and section 3447 that “actions founded on a judgment of a court of record” may be brought within twenty years, but “the time during which a defendant is a nonresident of -the state shall not be included in computing.” Section 3451, Code. The lapse of time, then, since the rendition of judgment in 1876, interposed no impediment to the issuance of execution, for defendant had been a nonresident of the state all the time. Nor had execution been refused by any officer having -authority to issue it. The demand therefor was on the clerk of the district court of Polk county, with whom the transcript of the judgment entered in the district court of Lucas county had been filed. The filing of the transcript, if timely, may create a lien on realty, but does not operate as •& judgment, and execution only can issue out of the office of the clerk of the court which rendered the judgment. Brunk v. Moulton Bank, 121 Iowa, 14. But the filing of the transcript thirty years after the judgment was rendered, did not effect a lien. Hanson v. Teabout, 104 Iowa, 360; Albee v. Curtis, 77 Iowa, 644. So that the defendant’s interest in the lots has never been subject to the lien of this judgment, and, though plaintiff m-ay be entitled to have his judgment revived, he was not entitled to the aid of a court of equity in the enforcement of a lien that did not, and never had, existed. Denegre v. Haun, 13 Iowa, 240. See Smith v. Hogg, 52 Ohio St. 527 (40 N. E. 406). Even though no lien existed, however (section 3801, Code), one might have been effected 'by the issuance and levy of execution thereon, and this perfected by sale. Stahl v. Roost, 34 Iowa, 475.

As defendant’s ' interest in the land was undisputed, there was then a complete and adequate remedy at law, and the power of a coart of equity might not be invoked. Kalona Savings Bank v. Eash, 133 Iowa, 190. This result is not obviated by any change in the form of action essential to the revival of a judgment or the rendition of a new one, for, until .the entry of the order of revivor or of judgment, the lien is not re-established. Bertram v. Waterman, 18 Iowa, 529; Woodward v. Woodward, 39 S. C. 259 (17 S. E. 638, 39 Am. St. Rep. 716); Horbach v. Smiley, 54 Neb. 217 (74 N. W. 623). See 23 Cyc. 1400, for collection of cases.' Relief by way of revivor or in an action on a judgment can not be awarded save on personal service. See Donaldson v. Dodd, 79 Ga. 763 (4 S. E. 157); Betts v. Johnson, 68 Vt. 549 (35 Atl. 489). As there was no lien on the land and no personal service on the defendant, the court acquired no jurisdiction until the filing of the demurrer to the petition. Defendant thereby appeared, and, even though no cause for equitable relief was stated in the petition, this was ground for transfer to the law side of the calendar, and not for the dismissal of the action. Section 3432 of the Code; Thomas v. Farley, 76 Iowa, 735; Riddle v. Beattie, 77 Iowa, 168. As this was but one of several points, and apparently of little consequence to appellant, each party will pay his own costs. — Reversed.