Taggart v. Wood

20 Iowa 236 | Iowa | 1866

Wright, J.

i. judg“unction”' From the testimony, our opinion is, that plaintiffs at the time of commencing the action before the justice, were residents of the county of Black - hawk and not of Benton, where said judgment was rendered. The record shows, however, that the officer made return in due form of service upon a member of the family of said plaintiff within the jurisdiction of the justice. It also appears that an attachment was issued and duly served by attaching certain property belonging to said plaintiffs. The judgment was personal and not alone against the property attached. The execution issued was general. The testimony tends to show that plaintiffs knew that the action had been commenced and their property attached before the return day of the process. But however this may be, it quite conclusively appears that they were advised of the judgment within four or five days after its rendition, and they took no steps to set it aside until the filing of this petition on the 18th of February, 1865. The account forming the basis of this action does not seem to be unreasonable or made for the occasion. The transcript of the justice shows that witnesses were heard and the judgment rendered for an amount less than that claimed. The parties made an effort to settle the matter afterwards, and only differed, according to the testimony, some five dollars in their respective offers. The charge that the judgment is unjust, or that plaintiffs are not indebted to Crull, as claimed by him, is not supported by the testimony. Indeed the referee on this subject only find that plaintiffs “ had a partial defense to said claim.” Under these circumstances can this decree be sustained ? It seems to us not.

We do not stop to inquire how far plaintiffs are concluded by the officer’s return of due service; nor will we discuss the effect of the attachment and the jurisdiction thereby acquired over tbe property seized under the writ. Nor is it material to determine whether plaintiffs’ remedy was not by appeal from a judgment, apparently regular, and of which, they bad full knowledge in time to perfect and prosecute the same. Passing all these inquiries, we place our opinion upon the single ground, that tbe judgment is not shown to be unjust or oppressive, or, in other words, that it does not appear that plaintiffs have a good defense to tbe claim if the judgment should be set aside. Prima facie, the justice bad jurisdiction of the parties, and there is certainly no principle that will justify a court of equity in setting aside the judgment and opening up tbe litigation, until it appears that tbe result will be other or different from that already reached. That this is the correct rule, without more, we cite the cases of Piggott v. Addicks, 3 G. Greene, 427; and Crawford and Kimball, Ex’ors, v. White, 17 Iowa, 560.

Reversed.