This is a suit in equity, to cancel and set aside a judgment and decree of foreclosure, and to cancel and set aside a sale made under such foreclosure proceedings: (The ground on which this is asked is that the court had no jurisdiction, because of the complete absence of the service of notice on the appellants. The defendant admits the mortgage and decree of foreclosure and sale, and denies all the balance of plaintiffs’ petition. The court dismissed plaintiffs’ petition on the merits, and plaintiffs appeal; and the only error assigned is that the court erred in doing so. The decree and judgment attacked were entered in the Humboldt County district court.
The record shows that, prior to the 3rd day of March, 1916, an original notice in due form was forwarded to the sheriff’s office in Polk County, with directions to serve the same upon these plaintiffs, who then resided in Des Moines; that, upon receipt of the notice at the sheriff’s office, it was turned over to one Mr. Henderson, a deputy sheriff, for service, and the record on file shows a completed service as to the plaintiff, Henry Pyle, in these words:
“State of Iowa, Polk Co.unty, ss.:
“Received the within notice this 3d day of March, 1916, and on the 3d day of March, 1916, I personally served the same on the within-named defendant, Henry Pyle, by leaving a copy at the house of Henry Pyle, in Des Moines Township, Polk County, Iowa, the same being his usual place of residence, with D. G. Pyle, a member of the family over
“[Signed] S. M. Henderson.
“Subscribed and sworn to.”
As to Mrs. Henry Pyle, known in the record as D. G. Pyle, the return was as follows:
“State of Iowa, Polk County, ss:
“Received the within notice this 3d day of March, 1916, and on the 3d day of March, 1916, I personally served the same on the within-named defendant, D. G. Pyle, by offering to read the original to D. G. Pyle, which she waived, and delivered to her a true copy thereof.
“[Signed] S. M. Henderson.
“Duly verified.”
It appears that W. V. Pyle, we think a brother of Henry Pyle’s, lived at No.12413, on the' same street, and immediately west of Henry. Mrs. W. V. Pyle was called for the plaintiffs, and testified that, on the 3d day of March, a notice was served on her at No. 2413, in the morning of that day, by some officer, and she thinks it was this Mr. Henderson. She waived the reading, did not examine the notice, and laid the copies away. She says that her husband was not at home at the time this.service was made; that the notice was not read to her, nor did she read it; that copies were left with her; that she had company, and did not care to have the notice read in the presence of the company; that she laid the copies aside, thinking to read them later; that her husband, always got home the last of every week; that, when he came home, she looked for the papers, but could not find them, and never has found them..
Now the 3d of March was on Friday. This would bring the husband home on Saturday. The disappearance of these papers, if they were ever served on her, or if she ever received any papers of the character testified to, is exceedingly unfortunate for the plaintiffs in this case, or fortunate, and, at least, very peculiar. The service of notice by a sheriff or by his officers is not an everyday occurrence. It would have a tendency to arrest attention. If any papers were served, as she states, she makes no explanation of why or how they could have disappeared. She says she looked for them the next day, to show them to her husband, and
Mrs. Henry Pyle, known in the record as D. G. Pyle, testifies that, on the night of February 29th, she stayed at W. V. Pyle’s home; on March 1st, at W. 0. Biggs’ home; that, on the 3d of March, she was at the Biggs’ home until after lunch, then went down town, saw her husband and Mr. Biggs, and went back from the office to W. Y. Pyle’s home, and stayed there that night; that her husband was with her; that she was not at No. 2411 at any time during the 3d, and no one served any papers on her at either place. Both she and her husband, Henry, testified that all the household goods in No. 2411 were removed from the place on the 29th of February; that they never occupied the place after that; that it was vacant, and the blinds pulled down.
That certain goods were removed from No. 2411 on the 29th of February, is also shown by the testimony of an employee of the Merchants Transfer Company, who says he hauled three loads of household goods from No. 2411 on the 29th day of February, and put them in a car on the Minneapolis & St. Louis Railway Company’s tracks; that they were not packed that day; that there had been packers there for three or four days; and that he took everything but a few old beds.
Neither of the Biggs was called as a witness, and their absence is not accounted for.
The Pyles all testified that the plaintiffs in this case left for Texas on the 5th of March, and they all testified that No. 2411 was vacant after the 1st of March.
Against this testimony is the testimony of Henderson,
To this is added the testimony of one George Tymony, who says he was a chauffeur for Hr. Smouse, at 2323 Grand Avenue; that he was well acquainted with these plaintiffs, especially Mrs. D. G. Pyle; that he saw her around the premises at No. 2411 until at least the 5th of March; and that he thinks he saw her there later than that; that Dr. Smouse returned from California on the 1st of March; and that he cooked for the doctor about two weeks after that; that he saw Mrs. D. G. Pyle and her daughters come through their driveway to the street car real often, — every day,— while he was cooking for the doctor. He swears positively that Mrs. Pyle and her daughters were around No. 2411 as late, anyway, as the 5th of March; that he was well acquainted with Mrs. Pyle’s daughters.
We find no reason for interfering with the judgment of the court upon the facts. In fact, we find much reason for discrediting the testimony of the plaintiffs and their witnesses.
The judgment and decree of the district court are — Affirmed.