Parsons v. Johnson

66 Iowa 455 | Iowa | 1885

Rothrock, J.

Plaintiff bases his right to appear and demand a retrial upon section 2877 of the Code, which is as follows: “When a judgment has been rendered against a defendant or defendants served by publication only, and who do not appear, such defendants, or any one or more of them, or any person legally representing him or them, may, at any time within two years after the rendition of the judgment, appear in court and move to have the action retried; and, security for the costs being given, they shall be admitted to make defense, and thereupon the action shall be retried as to such defendants as if there had been no judgment; and upon the new trial the court may confirm the former judgment, or may modify or set it aside, and may order the plaintiff to restore any money of such defendant paid to him under it and yet remaining in his possession, and pay to the defendant the value of any such property which may have been taken in attachment in the action, or under the judgment, and not restored.”

Of course, Johnson can have no right to appear and demand a new trial under this statute. He was not the defendant who was served with notice by publication, and failed to appear. His name was Howell. But Johnson claims that he has the right to appear and demand a retrial under that clause of the statute which provides that any person “ legally representing a defendant” may appear and demand the right. This provision means that it shall not be necessary for a defendant to appear in person. He may appear by agent or attorney, or possibly, if deceased, his administrator may assert the right. The trouble with Johnson is that he does not appear for Howell. He appears for himself. It does not appear that he even had any business relations with Howell, and he does not claim to be acting for him. It appears that he bought the note and mortgage from Piggott about a year and a half after the decree was entered which he now seeks to open up. He bought the claim on his own account, and seeks to establish it for his own benefit. ¥e are very clearly of the opinion that the court was correct in striking his application for a retrial from the files.

Akfirmed..