121 Iowa 89 | Iowa | 1903
The question at issue under the pleadings turns upon the validity or invalidity of a judgment entered by the district court of Van Burén county, which judgment defendant alleges to be a lien upon the land described in the petition. The circumstances material to be stated are as follows: In the year 1887 one J. W. Scott was the owner of a grist mill, in which he desired to place new and improved machinery. To aid him in this enterprise, plaintiff, with other neighbors, signed Scott’s promissory notes for a considerable sum, and in the name of a trustee took a mortgage on the mill property to secure themselves from loss thereon. In 1892 Scott found himself unable to pay the notes, and at the request of his sureties made a deed of the mill to a trustee for their benefit. The conveyance was made by an ordinary warranty deed, but excepted from its covenants the lien of a first mortgage for $1,600 held b'y Luke P. Prentice, the defendant herein. On March 12, 1892, the plaintiff, having rented his farm to his son, removed to Ohio, where he has ever
I. Appellee raises the question that the evidence has never been certified by the trial court. It is to be admitted that the abstract fails to make^it clear whether
III. The discussion in the preceding parargaph has been upon the assumption that the judgment in controversy is a judgment against appellee. . It is apparent, how- .. name of ever, that such is not the case. The appel-iciemsouaiis. lee’s name is Willis H. Thornily. The so-called “service of notice” was made, according to the sheriff’s return, by leaving a copy with “Paul Thornily” for "W. M. Thornily.” The judgment is entered against “Wm. M. Thornily.” Now, it may be conceded for the
When the rights of a person are to be concluded by a notice which is merely constructive, not actual, it is right and just that the party who wishes to avail himself of its benefits be held to follow the forms provided by statute. Adams, J., in Fanning v. Krapfl, supra, speaking of notice by publication, says: “Notice by publication, even where there is no misnomer, does not afford a very strong natural presumption that the fact of the pending of the action will be brought to the defendant’s actual knowledge. Notice by this mode is allowable only out of necessity. It must often happen that great injustice is done and great hardship suffered. We are not disposed to open the door any wider than necessity requires. Whoever undertakes to give notice by publication, and misnames the defendant, is without excuse.” These remarks are equally pertinent to a case of substituted service, and particularly where, as in this case, it appears to be an attempt to obtain personal jurisdiction of one who is admittedly a nonresident.
IV. Appellant, by way of counterclaim, sets up the alleged promise by appellee to pay the mortgage debt of Scott, and asks that, if the judgment in controversy be found void, he may now recover the amount remaining unpaid on said obligation. The testimony upon this issue is very conflicting. Scott, with other members of his family, testify very positively that such was the agree-
The judgment of the district court is aeeibmkd.