84 Iowa 138 | Iowa | 1891
I. The pleadings and evidence show the following facts either are undisputed or clearly established by the proof. Other facts found in the abstract need not be stated, as they are not involved in the point upon which the case is decided. The plaintiff’s husband, holding the title to an undivided interest in certain lands, executed a mortgage thereon November 7, 1882. The lands were subsequently partitioned, and the land in controversy, nineteen and twenty-five hundredths acres, being occupied by the plaintiff and her husband as a homestead, was set apart with, other land to the husband. The plaintiff joined in the execution of the mortgage but not of the note. The plaintiff’s husband, having become involved in financial embarrassments growing out of large indebtedness, and being' accused of crimes, absconded from his home, November 10, 1882, and has never returned, nor has he been seen by the plaintiff since that date. She had letters from him for three or four years, but since that time has heard nothing from him. It is not shown that his whereabouts have been known since that time, or that since he absconded he has-been at any time in this state. On the 10th day of November, 1883, a year after he absconded, this action was commenced, and service of notice made upon him by leaving a copy with the plaintiff, who resided on the homestead in controversy. The notice was also served upon her, informing her that no personal judgment was claimed against her.
III. Notwithstanding the decree recites that the notice was lawfully served upon the husband, the
IV. The decree of the court below is against the plaintiff personally, notwithstanding she did not sign the note, and no judgment is claimed against her, and the notice so informs her. The district court by its decree set aside the personal judgment against the plaintiff, of which the defendant makes no complaint. The decree of the district court thus far will be affirmed, •and the decree in all other respects will be reversed.
The cause will be remanded to the court below for a decree in accord with this opinion, or, at the plaintiff’s option, such a decree may be entered in this court. Beversed.