171 Iowa 54 | Iowa | 1915
This was all the service of the notice upon her. She had no notice or knowledge of the pendency of the action. She did not know there was then any existing indebtedness against either her or her husband in favor of this defendant. She knew that at one time they were indebted to the defendant, but she supposed that it had been settled by her husband. She did not learn of the existence of the judgment until August, 1913. She then learned that the judgment had been entered against her in favor of this defendant, Reidy. At the time this judgment was entered, she did not appear, nor did anyone appear who was authorized to represent her in the cause. This suit to set aside the judgment was commenced in January, 1914. The notes were then barred by the statute of limitations.
At the time the notice was served on this plaintiff in the original suit, she was residing on a farm with her husband some distance from the town of Stanley, and in a different township. There was, therefore, no legal service on the plaintiff of the pendency of this action, giving the court jurisdie
The plaintiff is met, in this case, with two defenses:
First. That, at all times since the bringing of the action that resulted in the judgment which is involved here, the plaintiff was informed of the same, and knew of the rendition of the judgment at the time; that she was represented by counsel, who stated in open court that they had been consulted about the case, and asked time to see further whether or not this plaintiff desired to defend the action; that these attorneys afterwards said that there was no objection, and judgment might be entered.
This defense fails upon the facts. There is no evidence that plaintiff authorized anyone to appear for her, or that these attorneys did, in fact, appear for her; that they had any authority to represent her in the cause, and there is no evidence that she knew of the pendency'of the action, or of the rendition of the judgment until August, 1913.
As to this defense, the only substantive fact alleged which the evidence shows to be true is the fact that the notes are now barred by the statute of limitations.
Upon the hearing in the district court, judgment was entered for the defendant, dismissing plaintiff’s petition, and from this judgment plaintiff appeals.
This ease, under the record made, may be determined on two propositions: .
2. Can the plaintiff have the judgment, though void, set aside without first paying, or offering to pay, the amount due on the claims upon which the judgment was entered?
Much of the evidence in this case is confined to an exposé of what the husband knew and did and thought and intended. Much of it is devoted to showing a secret purpose on the part of the husband to delay the bringing of the action until after the notes were barred by the statute of limitations. There is no evidence that the wife knew of the existence of the indebtedness, or that a judgment had been entered against her, until August, 1913. The evidence discloses that she had,supposed that her husband had adjusted the indebtedness, and that it no longer existed, and that she did not learn that it had not been adjusted, and that it did exist, until she was informed by her husband in August, 1913, that a judgment had been entered against her upon the indebtedness due Reidy. During all this time, she did nothing to mislead the defendant, or to lull him into a belief that the judgment was binding upon her. The only delay that can be charged against her is found in the time intervening between August, 1913, and January, 1914. There is no evidence that she knew when these notes matured, or when they would be barred by the statute of limitations, or that she had any purpose or intent in delaying the bringing of this suit to secure the advantages of the bar. The judgment was void and she need have done nothing but wait until the defendant attempted to enforce it, and then invoke the rights she herein seeks to have recognized. She owed the defendant no duty to inform him that his judgment was void, and that the notes would be barred in January, 1914.
In determining whether or not the plaintiff was guilty of laches in not commencing this action earlier, we must look to the record. The plaintiff is a woman, the wife of a farmer; lived with him on a farm some distance from the county seat. She did not learn of the existence of this judgment until the
Q. “How did you happen to find out about this?” A. “There was a party spoke to me about buying my place. When my husband got home, I spoke to him about it. He said,‘We can’t sell it.’ I said,‘Why?’ He said, ‘There was a judgment against it. ’ I asked him who had one. He said, ‘Reidy.’ I asked him how it came. I told him I supposed Reidy’s bill was paid. I knew at one time we owed Reidy, and I supposed it was paid because they had served papers at one time on us, and shortly after that, my husband went to Winthrop, and I supposed he had settled it. That is what he said he was going to do, and when he came back, he said he had drawn up a contract to bale hay for him, and shortly after that, I can’t say how many weeks, maybe a couple of weeks, he took his press and went down there and baled hay, and when he got back, I supposed it was paid. I heard of this judgment the last of August, 1913. I waited until I could have a convenient time and then came down to see my attorney. This was in January, 1914. We did not get our com out until pretty late. I was in Dakota a short time during November.”
We do not think the record discloses unreasonable delay, under the circumstances, in bringing the action. The record does not disclose that she was influenced by any improper considerations in delaying the action. It does not show that she knew, or had reason to believe, that the delay would affect, in any way, the defendant’s right. The only basis for an inference of wrongful purpose in the delay is the fact that the notes were barred before the action was brought; but, in the absence of any showing that she knew when the notes matured, or when they would be barred % the statute of limitations, no improper motive can be inferred by the delay.
Much of the argument proceeds upon the theory that this plaintiff knew that a judgment had been entered against her
This contention is not supported by the record. There is no evidence of a secret knowledge of the existence of the judgment, or that it was regular or irregular upon its face. There is no evidence that she, from improper motives, or for the purpose of securing undue advantage, delayed the bringing of this action. There is no evidence that she knew, or had reason to believe, or should have known, that the statute of limitations would run against the original claim if the action were delayed until January, or that it had run at the time the action was commenced.
Reliance is had upon what this court has said in Parsons v. Nutting, 45 Iowa 404; Byers v. O’Dell, 56 Iowa 618, and other cases.
As supporting our conclusions, see Shehan v. Stuart, 117 Iowa 207-211; Jamison v. Weaver, 84 Iowa 611. In this latter case the court said:
“The judgment was rendered on an account for goods sold and delivered in 1871 and 1872, which account has long since been barred by the statute of limitations, and is not*61 now a valid claim against the appellee. The judgment being void for want of jurisdiction in the court rendering it, and the account not now a valid claim, and subject to a complete defense, the appellee is entitled to have the judgment can-celled.”
See also Worrall v. Chase & Co., 144 Iowa 665-670.
We think the court erred in dismissing plaintiff’s petition, and the cause is, therefore, — Reversed.