Leyner v. Fuller

Seevers, J. i. pleading : answer: deniai of knowiedgeand information. The only question we shall consider is whether a decree of the district court quieting the title to the real estate in controversy in the defendants’ grantor . „ . , ° is sufficient to bar this action. Counsel for the appellant contend that it is not, because it is admitted in the pleadings, as counsel claim, that the plaintiff had no notice of the action in which the decree was rendered. [189] The petition states that a pretended decree was rendered by the district court quieting the title of said premises in Sarah II. Sanford, and against the plaintiff. This allegation is admitted in the answer. The petition further states that the plaintiff “ never had actual notice or knowledge, or constructive notice, of the pending of the action in said district court aforesaid, or of the rendition of said pretended decree, until just prior to the commencement of this action.” To this allegation the defendants responded as follows: “ They have no knowledge or information as to whether said plaintiff had actual notice or knowledge, or constructive notice, of the pendency of said action in salid district court as aforesaid, other than is shown by the recitals of said decree in said cause; and upon such knowledge they allege upon information and belief that said plaintiff had notice of said proceedings.” Instead of waiting until the defendants pleaded the decree as a defense to the action, the plaintiff stated in the petition that such a decree had been rendered, but that it did not constitute a bar to his recovery, because he had no notice or knowledge of the action, thus anticipating the defense. The statute provides that a denial of the allegations of a pleading is sufficient which states that the party denies having “ any knowledge or information thereof sufficient to form a belief.” Code, § 2655. This is, as we construe the answer, precisely what the pleader did. To our minds this is apparent on reading the pleadings. Besides this, we are unable to discover that any objection was made to the sufficiency of the pleading in the circuit court. The appellant cites and relies on Manny v. French, 23 Iowa, 250, and Claflin v. Reese, 51 Id., 544. These cases are distinguishable, because the denial pleaded was merely a denial of all information; the element of knowledge was omitted, and the statute requires both. In the case at bar all “knowledge and information” is denied, except that obtained from the recital of the decree, and on such knowledge, upon information and belief, it is alleged that the plaintiff had the requisite notice. [190] 2. former nmFcefevff: dence. Counsel for the appellant further contends that it appears from a preponderance of the evidence that the plaintiff had no not‘oe or knowledge of the action in which ^ie decree was rendered. The decree recites, u anc[ sa¡¿ defendant having been duly served with notice of the pendency of this action.” The only evidence contradictory of this recital is the evidence of the jdaintiff, who positively denies that any notice was served on him, or that he had any knowledge of the pendency of the action or decree until long after the latter was entered, except that the appearance docket fails to show that an original notice was ever filed or served. We are not driven to the necessity of determing whether this evidence is sufficient to overcome the recital in the decree which was entered in 1878. The original papers are lost. There is evidence of a satisfactory character which supports the decree. The attorney who appeared for the plaintiff in the action testifies that a notice was served on the appellant. The recollection of this witness is corroborated by certain letters and .memoranda made by him at the time, which, in our opinion, create a decided preponderance in favor of the defendant. Affirmed.