71 Iowa 514 | Iowa | 1887
II. In our opinion, the circuit court of Cedar county had no jurisdiction of the case, the statutes, as interpreted by this court, prescribing that plaintiff should have pursued his remedies in Greene county, where the land is situated, and where the estate of the mortgagor is in process of settlement in the probate court. Code, § 2578, before its amendment by chapter 126, Acts Twentieth General Assembly, as inter
In Iowa Loan & Trust Co. v. Day, 63 Iowa, 459, this court held that an action for foreclosure which is in rem, and not to recover a personal judgment as well as a decree of foreclosure, must be prosecuted in the county wherein the land is situated, and not in the county where the note secured by the mortgage is payable.
III. Is this to be regarded as a personal action, or ah action in rem? Roth of the cases just cited teach that, where a personal judgment cannot be rendered, in a foreclosure proceeding, it is an action in rem. See Kershaw v. Thompson, 4 Johns. Ch., 609 ; Downing v. Palmateer, 1 T. B. Mon., 64 ; Waples, Proc. in Rem, §§ 563 et seq., 606 et seq.
No personal judgment is claimed in the petition against the heirs, and it is not made to appear in the case that there were any grounds upon which such a judgment could have been based. If the decree declaring that they hold their interest in the lands subject to the mortgage be thought to be a personal judgment against them, the court had no jurisdiction to enter it, for the reason that, as we shall soon see, the court below had no jurisdiction to enter the decree of foreclosure. Of course, if jurisdiction to foreclose the mortgage did not exist, no jurisdiction existed to render a personal decree against the heirs cutting off tlieir right to redeem.
IY. No personal judgment could have been'rendered against the executrix, for the reason that no personal liability rested upon her. It is claimed that a judgment was authorized against her in her representative character as executrix. We need not inquire whether such a judgment- may be regarded as personal, for the reason that, as we understand the law, the circuit court of Oedar county had no jurisdic
The question as to the effect of a judgment of foreclosure against an executor, whether it stands as a claim against the estate, etc., need not be considered, for the reason that it does not arise in this case, because no jurisdiction to enter a decree of foreclosure and judgment existed in the court below. It is very plain that, if a judgment against the estate be authorized when a decree is rendered by a court having jurisdiction, it cannot be enforced by execution. It may be filed in the probate court as a claim established against the estate. Crane v. Guthrie, 47 Iowa, 542. As bearing on the question under consideration, see Code, §§ 2408, 2416, 2420, 2424, 2427, and Chadbourne v. Gilman, 29 Iowa, 181.
It will be understood that, where there is jurisdiction of the subject matter of the action, but no jurisdiction of the person of the defendant, the court may retain the cause, and make orders looking to the acquisition of jurisdiction of the person of defendant, and for some other purposes. But, as we have seen, this is not an action in personam. The court below, having no jurisdiction, could make no order except to dismiss the case, which ought to have been done.
The other members of the court direct me to say that they are not prepared to hold that this action of foreclosure is strictly a proceeding in rem. They reach the conclusion ■announced in this opinion upon the other grounds.
■ Reversed.