Rowley & Co. v. Baugh

33 Iowa 201 | Iowa | 1871

Day, J.

I. It is claimed that the plaintiffs’ remedy was by appeal or writ of error, and that, having permitted the time to, elapse within which an appeal could be taken or a writ of error sued out, the remedy is gone by their own neglect. The petition, however, alleges that plaintiffs had no knowledge of the judgment against them until long after the time for appeal or writ of error had passed. To this it is replied that it was plaintiffs’ duty to know of the judgment, and that they did, not know was because of their negligence. We think otherwise. The cause was by consent continued “ until after the then next ensuing term of the district court of said county.” Neither day nor hour was fixed. If it should be conceded that a continuance so indefinite did not work a discontinuance of the cause and entirely oust the jurisdiction of the court, it cannot be claimed that it Was the duty of the defendánt to appear from day to day, in order to ascertain when it might *203suit the convenience of the plaintiff to call up the case for determination. The plaintiff was the actor. It was he who was invoking the jurisdiction of the court, and seeking to put in exercise its functions in order to the attainment of affirmative relief. Hence, it was his duty to notify the defendant of the time when he would invoke the powers of' the court. And until lie" received such notice the defendant might rest in safety. He was not, therefore, guilty of negligence in not learning of the existence of the judgment in time to appeal or sue out a writ of error.

II. The next point made is that the petition does not show that plaintiff has a meritorious defense to said Richard Hughes’ cause of action.

We do not deem it necessary that such showing should be made in this action-. This is not simply a case of judgment by default. It is a case in which the court rendering the judgment had no jurisdiction over the person of the defendant, from which fact the judgment is void.

The coui’t erred in sustaining the demurrer and refusing the writ.

Reversed.