Woodward v. Willard

33 Iowa 542 | Iowa | 1871

Cole, J.

I. One main ground of defense, relating to the validity of the judgment, was the want of legal service of the original notice or summons upon the defendant therein. The defendant himself testifies that “no notice or summons was ever read to me in case of E. P. Child against me, in Douglas county, Nebraska, or anywhere else in Nebraska. * * * The summons was served by copy.” The return of the shériff upon the process was as follows : “ Received this summons March 23, 1866, at two o’clock, p. m. ; served the same day, by delivering to'the within named defendant a certified copy of this writ.” The fact that the summons was served by copy, and not by reading, is thus sufficiently established. But the statute, or Code of Nebraska, which was also introduced in evidence, and is before us in this case, provides:

“ § 61. The service shall be by delivering a copy of the summons to the defendant personally, or by leaving.one at his usual place of residence, at any time before the return day.”

“ § 62. In all cases the return must state the time and manner of service.”

It will be seen, therefore, that the service was strictly legal and proper. So far as respects the service and return, the judgment was valid.

II. It appears from the authenticated copy of the papers and proceedings in the case in Nebraska, wherein the judgment sued on was rendered, the copy of which was annexed to the plaintiff’s petition, and was also introduced in evidence, that there was an answer filed and defense made by attorneys for the defendant in that action. The authority of such attorneys to appear for the defendant therein is denied in this action, and much of the evidence was taken upon this issue. But it becomes wholly immaterial whether the attorneys had proper authority so to appear or not, since it is sufficiently shown that the defendant was duly served with summons, and would be concluded by the judgment, even in the absence of any appearance.

8. Accord and satisfaction: unexecuted. III. After the evidence was concluded by both parties, the defendant was permitted to file an amendment to his answer, setting up a compromise of the origi- £ ,- . , ,, nal cause of action, prior to the rendition of the judgment sued on. We do not stop to discuss the question whether this amendment was rightly permitted or not, since we find that there was not sufficient evidence to sustain a verdict for defendant upon the issue made thereby, in any event.

The defendant’s own testimony upon this point is as follows: “This paper (summons) was served by copy. I showed it to Bedick (one of the firm of attorneys who appeared and filed answer, etc.), and asked him what it meant. He said Child had sued me for a horse, and advised me to try and get Child to replevin the horse from the man I had sold him to. I went to Child, and he said he only wanted the horse, and did not want any difficulty with me; that if he could get the horse by replevin, that would settle the matter between us, and he would dismiss the suit. I told him where, the horse was, and agreed to show him the horse any time he 'wanted me to. After this I saw him at Council Bluffs, and he said he was going through Des Moines, and would see Spofford (from whom defendant bought the horse), and try to settle the matter with him. I then told him where the horse was; I never saw him again. It was in consequence of this that I did not attend to defending the suit.” * * * This conversation was on the 23d day of' March,‘1866 (the day the summons was served), and was the only one we ever had in regard to dismissing the -suit. I never went to the court-house to see if the suit was dismissed, nor to see about it after judgment had been obtained. I first knew of the judgment two or three months after it was obtained. The horse was never replevined by Child.”

This evidence is not sufficient to sustain a verdict that the judgment was obtained by fraud ; nor does it show a satisfaction of the cause of action upon which the suit was brought. At the best it shows but an agreement for accord and satisfaction unexecuted; and this, the authorities all agree, is not sufficient- to defeat the right to recover. Frentress v. Markle, 2 G. Greene, 553; Hall v. Smith, 10 Iowa, 45 ; S. C., 15 id. 584. See also Branner v. Piper, 25 id. 400, and cases there cited.

This disposes of the case. But it may be proper, also, to remark that we do not approve of the sixth instruction, which tells the jury that “ the presumptions are in favor of the judgment.” It is an absolute verity, the court having jurisdiction. Nor of the eighth, which says the judgment is a nullity, if the attorneys were not authorized to appear. If there was due service of summons it would not be a nullity. Eor the reason that the verdict is not sustained by sufficient evidence the court should have sustained the motion of the plaintiff for a new trial.

' Reversed.