Berryhill v. Jacobs

Lowe, J. Two errors are assigned and pressed as reasons for reversing the judgment specified: First. That the transcript does not show any legal service upon the defendants at the time of the rendition of said judgment.. Whether this objection is available to the appellants in this appeal, is not material to determine, inasmuch as, since the making of this objection, a more perfect record in the cause has been sent up under the certificate of the clerk, showing beyond any question that the service by publication had been complete and properly verified, the objection, of course, falls to the ground. ^SatMÍew appear1 Second. It is claimed that the court erred in granting re^e^ not prayed for in the bill, namely: in holding and declaring that the title to the land described in the petition should vest in the plaintiff. If this objection was a sound one, it was entirely within the competency of the appellants to have had the form of the decree modified, so as to make it harmonize with the specific relief asked for in the bill. Section 3160 of the Revision provides, that when a judgment has been rendered against a defendant served by publication only, and who does not appear, such defendant may, at any time within two years after the rendition of the judgment, appear in court and move to have this action retried; and upon such retrial the court is authorized to confirm, modify or set aside the former judgment. As the defendants were brought in by publication, and a judgment taken against them by default for non-appearance, it became incumbent upon them to make the motion contemplated in the section above granted, before the right of appeal arose, because another section of the Revision, namely, 3545, declares that a j udgment or order shall not be reversed, for an error which can be corrected on motion in the inferior court, until such motion has been made there and overruled. [349] Such a motion was not made, without which, we are not at liberty to pass upon the objection under consideration See Pigman v. Penney et al., 12 Iowa, 396; McKinley v. Bechtel et al, 12 Id., 561; Downing v. Harmon, 13 Id., 535. We observe in conclusion, that the above sections of the statute apply to chancery as well as law actions. Affirmed.