Clark v. Tull

Sheravin, J. [144] The petition upon which the plaintiff recovered judgment was an ordinary one declaring on a promissory note, alleging that the defendants were nonresidents of the state, and asking a writ of attachment ■•against their property. Personal service of the original notice was accepted by both defendants without the state more than 60 days before default and judgment. An attachment was issued and levied, upon real estate of the defendants, and on final judgment was sustained, and special execution ordered and issued, under which the land was sold to satisfy the judgment. The judgment was renderedi April 4, 1899, and was both personal and in rem. The defendants’ motion of October 26, 1899, objected to the personal judgment because service of notice was accepted out of the state. The judgment was modified so as to leave it in rem only. Defendants’ motion of December 27th objected to a judgment in rem on the ground that the petition did not warrant it, and also asked that the property be released from the levy and sale because of its homestead character. Appellants are in no position to complain of the ruling on their first motion, for the judgment Avas modified to meet their objection thereto. The petition was sufficient to entitle the plaintiff to a judgment against the property.' Griffith v. Harvester Co., 92 Iowa, 634, and cases there cited. The service of the original notice gave the court complete jurisdiction to render the judgment it did. Hence the judgment was a valid one. See' same case. It is clear that section 3796 of the Code does not apply to this case, because here there was personal service outside of the state. McBride v. Harn, 52 Iowa, [145] 79; Griffith v. Harvester Co., supra. This being true, the defendants were too late to have the default and judgment set aside. Could the levy and sale thereunder be set aside and discharged on motion? We think not. Section 3929 of the Code provides only for the discharge of attached property on motion before the trial. Surely, after a final adjudication establishing a lien and ordering a special execution and sale thereundei, the property cannot be discharged on a motion, particularly where it is based upon facts not apparent of record before. Tidrich v. Sulgrove, 38 Iowa, 339; Cox v. Allen, 91 Iowa, 462; McLaren v. Hall, 26 Iowa, 300. The motions were properly overruled. — Aeeirmed.