119 Iowa 742 | Iowa | 1903
The defendant Sophia Burk sued oreM„ A. Dougherty for damages for the sale of liquor to her husband. .Dougherty was running a saloon in a building:
Of the cases relied upon by the appellant, Arnold v. Hawley, 67 Iowa, 313, was an equitable action on a void judgment, wherein it was claimed that the petition did not negative an indebtedness. This court found that it did, however, but said, in substance, that it was not necessary to so plead. This decision has been followed since in Henkle v. Holmes, 97 Iowa, 695, and Spencer v. Berns, 114 Iowa, 126, although in the latter case the question •arose on a motion to set aside the judgment. Way v. Lamb, 15 Iowa, 79, Dixon v. Graham, 16 Iowa, 310, and Crawford et al., v. White, 17 Iowa, 560, were all cases where ¡notice had been given, and the judgments were voidable, but not absolutely void. An examination of the earlier cases to which we have called attention will show quite ■clearly that tbe precise point involved here, or in the later cases, which seem to be in conflict with them, was not involved because of the fact that defenses were pleaded, and that, so far as the language used seems to establish a different rule from the one later announced on the precise question, it must be treated as dictum. In none of the cases to which our attention has been called, however, is the point decided which is involved here, as we view it. In all of the former cases there was a personal judgment against the defendant,‘.which, in the absence of anything appearing to the contrary, would be presumed to be prejudicial and ■oppressive. Here there was no such judgment. Not only is this true, but it is affirmatively shown that the plaintiff is not the real owner of the property in controversy. He has at most only a bare legal title held in trust for the Schlitz Brewing Company. Dougherty negotiated the
The judgment is affirmed.