Meredith v. Peterson

WateRmaN, J. 1 — The judgment provided that it should not go into effect until five days after its date. The notice of appeal was served before this five-day period expired. Appellee moves to dismiss the appeal on the ground that the judgment was not in force when such appeal was taken. There is no merit in this claim. The court had concluded the controversy, and entered its findings against plaintiff. If the stay had any effect it only served to suspend enforcement of the judgment during the period mentioned, but upon its entry the judgment was effective in determining the rights of appellant. It could have appealed from it, though no attempt at its enforcement had ever been made. It was not as though the court had reserved some right, to be by it exercised later. An appeal would lie, if the entry here was merely an order for judgment, if it was final and determinative of plaintiff’s rights. Code, section 4101. 2 II. We are required to determine but a single issue, and that is as to the effect of the redemption made by plaintiff. The trial court, held that the result of the failure to file a statement of the amount it was willing to credit upon its claim was to wholly discharge such claim. Under our statutes, the holder of a junior lien may redeem from an execution sale after six months, and before the expiration of nine months, from the day of sale, by the payment of the full sum, with interest and costs due upon the senior lien. But his lien, and the claim out of which it arose, will be held to be extinguished, unless within ten days after the expiration of the nine months he “enter on the 554 sale book the utmost amount he is willing to credit on his claim.” Code 1873, sections 3109, 3114, 3115. In other words, the redemptioner will be held to take the property in satisfaction of his claim, if this statement is not filed. Appellant insists that, if the debtor has actual notice of the facts required to be entered on the sale book, the purpose of this statute is satisfied, and that the debtor in this case did have such notice. We might say there is no evidence here that the debtor was given notice of the amount plaintiff would take the property for. The most that can be claimed is that he was told of the two liens for which plaintiff claimed to hold the land. The statute requires the exact amount to be entered on the sale book, and it may well be questioned whether the notice to the debtor, if given personally, must not be equally specific. But we prefer to rest our conclusions upon another ground. The statute makes no provision for any other notice of the amount for which the creditor is willing to hold the land, than the entry in the sale book. There is no warrant for the substitution of any other, though it may seem better than that fixed. Further, where the creditor files no such statement, all right of redemption by other creditors ceases upon the expiration of nine months from the date of sale. If the entry is made as required, they may go on redeeming from each other, under the conditions provided in sections 3116, 3117, Code 1873, the debtor thus securing the advantage of having a larger part of his liabilities paid out of his property. Notice to the debtor is not all that is intended by the entry in the sale book. It is notice to other creditors, also. There is no claim in this case of actual ■notice of any kind to any other than the debtor. These views are sustained by Tharp v. Forrest, 76 Iowa, 195; Lamb v. Feeley, 71 Iowa, 742; West v. Fitzgerald, 72 Iowa, 306. We do not regard it as of any importance that 3 plaintiff told the clerk at the time of the transaction that it was redeeming under the Coe mortgage. This meant nothing to the officer. It did not authorize him to 555 make any entry in tbe sale book. Tbe important question was not in wbat right plaintiff was redeeming, but wbat amount it was willing to take tbe property for. As to this fact, be gave no intimation to tbe clerk. Appellant relies upon tbe ease of Craig v. Alcorn, 46 Iowa, 560, in support of its contention. In that case tbe creditor, at tbe time of making tbe redemption, filed with tbe clerk tbe statement required, but tbe clerk neglected to enter it upon tbe sale book until after tbe lapse of ten days. It was held that' the creditor’s claim was not extinguished by this failure of tbe officer. It appears, too, that the debtor, through bis attorneys, bad notice of the statement on file before tbe expiration of ten days. Tbe record, it will be seen, was in fact made, so far as tbe redemptioner was concerned; that is, be had done all that tbe law required of him. All that was lacking was the entry in tbe sale book by tbe clerk for tbe purpose of giving notice. This notice tbe defendant obtained through other sources. Wbat is said in tbe opinion as to tbe effect generally of actual notice must be taken with relation to tbe facts in issue. Tbe judgment of tbe trial court is aeeibmed.