Byers v. Odell

Rotiirook, J. i. equity: action to set asido jueigmenl: practica. I. It appears by the averments of the petition that the judgment and decree “ were decided, rendered, ordered, signed and filed, in and during a vacation j? * ^ . , ,1* , , . oi said court, and not during a term (either regu- . . ° ' 0 lar or special) oi said court, and that said proceedings were had and done in vacation without any agreement, consent or knowledge of this plaintiff, nor of any attorney or other person acting for the plaintiff” It is further averred that the judgment was excessive, being for $2,057.71, whereas the total sum was but $1,963.86. Upon these grounds it is asked that the judgment, decree and foreclosure sale be declared void. [619] By section 183 of the Cods, it is provided that causes may, with the consent of the parties, be decided, and the decision entered, in vacation. Whether such proceedings in vacation, without consent of the parties, are void or are merely irregular we need not now determine. It' appears from the averments of this petition that at the time the judgment and decree were rendered the plaintiff herein was justly indebted to tho defendant in the sum of $1,963.86. He makes no tender nor offer to pay this amount, nor to allow judgment and decree to be now entered for that sum. He can have no standing in a court of equity without an offer at least to do equity. Morrison v. Hershire, 32 Iowa, 271; Sloan v. Coolbaugh, 10 Id., 31. And this ruléis ajoplicable as well where the judgment from which relief is sought is void for want of jurisdiction as where it is claimed to be irregular or erroneous only. Parsons v. Nutting et al., 15 Iowa, 404. 2. pleading ; asiaenjudl-et ment. II. The averment that the judgment is excessive is too general as the basis of a claim for relief. The petition should have averred facts from which it would have apPeare<^ by computation that the amount of the judgment was in excess of the amount due on the note and mortgage. Besides, the plaintiff does not by this action seek to correct the judgment. He claims that it is wholly void. We do not determine whether or not an excessive judgment can be corrected by an original action. It would seem that a more appropriate remedy would be by motion made in the court rendering the same, or possibly by an ajrpeal. Affirmed.