Morrison Mfg. Co. v. Rimerman

McClaiN, J. Plaintiff’s demurrer to defendant’s counterclaim was properly sustained because the counterclaim did not exist in favor of the defendant at the time the action was brought, but was afterwards acquired by him by assignment from his wife. Under the provisions of Code, section 3570, a cause of action not thus held by the defendant at the time action is instituted against him by the plaintiff cannot be interposed as a counterclaim in that action. Rumsey v. Robinson, 58 Iowa, 225; Cawker City State Bank v. Jennings 89 Iowa, 230. Notwithstanding the provision of Code, section 3887, that defendant may, in the attachment suit, interpose a counterclaim for damages on the bond, such counterclaim is not available to him if his right of action therefor has not accrued from damages which he has suffered, but has been acquired by assignment of a cause of action for damages accrued to another person by reason of a levy under attachment in such suit. Rumsey v. Robinson, supra. Some question is raised as to the sufficiency of the certification of the transcripts of the judgments. An examination of these certificates as they appear in the record shows that they comply with the requirements of Code, section 4646, and it is immaterial what the provisions of the statutes of Illinois may be on the subject. The rules of evidence prescribed by our own Code will govern as to the sufficiency of these certifications, and it is not necessary that we should give the matter any further consideration. The testimony of defendant that he was not indebted to the plaintiff with respect to the causes of action on which judgments were rendered against him by the justice of the peace of Illinois was wholly inadmissible, and was properly ignored by the trial court. A judgment duly proven cannot be impeached by the testimony of a witness that no indebt [721] edness existed on wbiob a judgment could properly be rendered. Longueville v. May, 115 Iowa, 709. It is alleged in defendant’s answer that tbe judgments rendered against bim by tbe justice of tbe peace in Illinois are void, as having procured by fraud, deceit, and misrepresentation. But no facts constituting fraud are alleged, and no evidence of fraud appears in tbe record. Therefore a defense to tbe action on tbe judgments is not made out. It is contended that tbe record shows that tbe judgments were without jurisdiction on tbe part of tbe justice rendering them. This contention is based on recitals in tbe transcripts, a@ shown by appellant’s abstract, to tbe effect that tbe judgments were rendered on default upon service of summons issued to “ George W. Webb, constable of lyon county,” and that tbe proceedings were before a justice of tbe peace of Logan county. Issue is raised as to the correctness of appellant’s abstract in this respect, and we have found it necessary to examine tbe certified transcript. Such examination satisfies us that there is no such defect in tbe transcripts as is relied on by appellant, but that, on the contrary, the recitals show jurisdiction of tbe justice of tbe peace to render tbe judgments. There is no error in the record, and tbe judgment is affirmed.