Watts v. White

| Iowa | Oct 22, 1861

Lowe, C. J.

In the assignment of errors three points are made:

1st. There was no legal service.

2d. If there was, the decree was rendered before the expiration of nine months after the first service.

3d. That the decree as rendered against the defendant White is in conflict with the “act to provide for the redemption of real estate sold on foreclosure,” approved April 2d, 1860.

As to this last point it is, perhaps, sufficient to remark that the object of the proceeding and decree against White was simply to cut off the equity of his lien as being junior to the mortgage on which the suit Avas brought; and that it has not necessarily the effect to deprive him of the benefits of the act above named, if there should be no other objection to the assertion of his rights. Whether such other objections may or shall exist, it will be time enough to determine when a ease is made and the questions raised.

In regard to the second error, that the decree was rendered before the expiration of the nine months after the first service, we think a satisfactory answer will be found in the following facts: This suit was commenced in January, 1860, legal service was effected on the mortgagor, on the 20th of that month, and a judgment of foreclosure entered on the 16th of February following, being some trvo months anterior to the taking effect of the act giving to the defendant in the foreclosure of mortgages nine months after the date of the service of the original notice to file their answer in. Upon what principle the defendant White can claim the benefit of this act, under the circumstances, is not readily seen. The judgment of foreclosure in this case was rendered against the mortgagor, before the passage of said law, and was complete, regular and valid under existing laws. It is true, the service was effected upon, and the decree rendered against White, after this law had taken effect; but the proceeding against him was merely ancillary and for the purpose of disencumbering the mortgaged premises of his lien. He was not in fact entitled to any rights beyond those of the mortgagor under the principal decree. And whether the decree was rendered against him within, or after the expiration of the nine months, could not make any difference as to his right to redeem (if that right existed at all,) was limited to twelve months from the day of sale under the decree foreclosing the mortgage sued upon, and not twelve months from the decree cutting off his equities.

The remaining points relate to the service, claiming that it was defective, because the return does not show whether a copy of the notice was demanded or served upon the defendant. We have never held that this should affirmatively appear in the return in order to show a complete service. Section 1723 of the Code provides that if the notice is personally served, the return must state whether a copy of the petition was required, and if so, to what point it was to be directed; but a similar return is not required in relation to notices. The service is completed by reading the notice to the defendant, unless he demands a copy, and then it is the duty of the officer to give it to him; and this, it would be well to state in his return, but if he does not, the court may safely indulge tbe presumption that the officer or person making the service has done his duty under the law.

Judgment affirmed.