Woodbury v. Maguire

42 Iowa 339 | Iowa | 1876

Rothrock, J.

The petition in the case of Francis W: Crane & Co. v. Woodbury, as its cause of action, states that Woodbury is indebted to plaintiffs in the sum of $1,429.54, with interest from Sept. 19th, 1871, for money laid out and expended, at the reqncst of defendant, in the purchase, at his request, of 150 tierces of hams in July, 1871, at St. Louis, and shipped to the City of New York, at defendant’s request. That defendant refused to receive said hams at New York, and the same were sold on liis account at a loss of $1,429.54.

. The statement of the cause of action in the original notice, which was published, is in substance as follows: “- claiming of you $1,429.54, and interest thereon at six per' cent from September 19, 1871, as money justly due on account for one hundred and fifty tierces of hams sold and delivered to you at your requestThe petition contains the necessary allegations for writ of attachment, and the necessary affidavits were made to authorize the publication of the original notice, and proper publication and proof thereof were made, and the only question presented is whether the statements of the original notice were sufficient to give the' court jurisdiction to enter the default and judgment. It is proper to say that the petition contains the necessary allega-' tions denying the justice of the original claim, and such as, if true, and there was no jurisdiction, would authorize a court of equity in relieving against the judgment. Coon v. Jones, 10 Iowa, 131. It is true that the notice does not technically set out the same cause of action as that contained in the petition. The former is on account for hams sold and delivered, and the latter for damages for failure to receive hams purchased by plaintiffs for defendant. The subject matter, one hundred and fifty tierces of hams, is the same, the amount claimed and interest are the same, and both are based on contract. • In all other respects the notice is regular.

1. original .ficieiicy ofS¡u£" practice. It may be conceded that the nótice is defective and irregu^ar5 nay> even ^hat its statement of the claim is repugnant to that contained in the petition, and that the District Court might properly have held that it was insufficient, or if held sufficient, the error could have been corrected by appeal or otherwise, as provided by law. It is not a case of want of notice, but of insufficient and defective notice; and, having been passed upon and held sufficient by the District Court, the judgment rendered thereon cannot be questioned in this collateral proceeding. See Daugherty v. McManus, 36 Iowa, 657; Shea v. Quintin, 30 Iowa, 58; Ballenger v. Tarbell, 16 Id., 491; Moody v. Taylor, 12 Id., 71; Baker v. Chapline, 12 Id., 204.

In Moody v. Taylor the defect consisted in not stating the cause of claim in the notice, and this court held that the cause should have been continued for service of notice and not dismissed for want of jurisdiction. It was under the Code of 1851. It is true that in most, if not all, of these cases the service was personal, while in this case it is by publication. It is conceded, however, that it was regular with the exception we have just been discussing. This gives it the same validity, so far as rendériug a judgment upon which the attached property could be appropriated, as though the service were personal, and the record in this case shows that Woodbury was advised of the judgment within two years, and might have had a new trial as provided by statute. 'He chose rather to attack the judgment collaterally, and we unite in holding that it cannot be successfully done.

Affirmed.