Ulber v. Dunn

McClain, J. In August, 1902, the defendant J. L. Sutton, claiming to be a resident of Kossuth County, through his agent, secured the signature of plaintiff to a written contract for the purchase of certain live stock remedies, and appointing plaintiff his agent for the sale of such remedies in the township of Dubuque, in Dubuque County. Except as to the quantities of the various remedies purchased, the contract seems to be identical with that set to in the opinion in the case of Sutton v. Weber, 121 Iowa, 361, and it is not necessary to further indicate its character than to say that the payment called for therein was to be made by plaintiff to said Sutton at Algona, in Kossuth- County, and that the amount to be paid was $83.60, payable at the expiration of sixty days from the date of the contract. After the expiration of the time for payment suit was brought for the sum specified by defendant L. E. Sutton, as assignee of the contract, before a justice of the peace in Algona township, in Kossuth County, notice of such suit being served upon plaintiff in Dubuque County. On failure of plaintiff to appear in this suit judgment was rendered against him by default, and a transcript of the judgment was filed with the clerk of the district court in Kossuth County, and an execution issued thereon, which was placed in the hands of defendant Dunn, as sheriff, for levy upon the property of plaintiff in Dubuque County. The foregoing facts are recited in plaintiff’s petition, in which it is further alleged that there was a fraudulent plan or scheme on the part of de [262] fendant- J. L. Sutton, and others to secure the signatures of various; persons to instruments- such as the one signed by plaintiff, and' to proceed in the method of procedure which was employed as against plaintiff, depending 'on the unwillingness of the signers of such instruments to make defense before a justice of the peace in a county other than that of the residence- of such signers, and that there were untrue and fraudulent representations made to plaintiff that no other merchant or person in the city of Dubuque was to be given the agency for the sale of the remedies enumerated in the contract, by which fraudulent representations, not complied with by defendant J. L. Sutton, plaintiff was induced to sign the contract. The relief asked was that defendant Dunn, as sheriff, be enjoined from attempting to enforce or collect the judgment referred to as against any property of plaintiff in any county of the state outside of Kossuth County. The defendants separately demurred to the petition on the grounds, variously stated, that the court was without jurisdiction, and that the allegations of the petition did not entitle the plaintiff to the relief demanded. 2.Judgment fraud equitable relief. • If there was any fraud in procuring plaintiff’s signature to the written contract, it was such fraud as might have been interposed by way of defense in the action brought before the justice of the peace in Kossuth County. Plaintiff, having failed to , . _ _ , interpose m that suit a defense which was available to him, if he had any defense to the enforcement of the contract, can not have relief in equity as against the enforcement of the judgment. It is provided by statute “that judgments obtained in an action by ordinary proceedings shall not be annulled or modified by any order in an action by equitable proceedings, except for a defense which has arisen or been discovered since the judgment was rendered.” Code, section 3440. This provision properly restricts the grounds for attacking a judg [263] ment in equity on account of fraud, for an equitable defense may be interposed in an action at law (Code, section 3566), and a defendant should not be allowed to attack a judgment on account of a defense to the cause of action which might have been interposed in the action in which the judgment has been recovered. Merrill v. Bowe, 67 Iowa, 636; Fulliam v. Drake, 105 Iowa, 515; Hanson v. Manley, 72 Iowa, 48; Case v. Hicks, 76 Iowa, 36. No fraud is alleged as having prevented this plaintiff from making any defense he may have had before the justice’s court in which he was sued in Kossuth County, and, having neglected to make any defense in that court, he can not now urge as a ground for enjoining the judgment any such defense thereto as he might have urged had he seen fit in the justice’s court. Doyle v. Reilly, 18 Iowa, 108; Dalter v. Laue, 13 Iowa, 538; Tredway v. Sioux City & P. R. Co., 39 Iowa,. 663; Warthen v. Himstreet, 112 Iowa, 605. 2. Justice of the peace: original notice: misdescription of township The notice, which was served upon this plaintiff in Dubuque County of the action before the, justice of the peace in Kossuth County, required that this plaintiff appear and defend before the justice named, describing him as a justice of the peace m ° . and for Algona City lownship, and plamtiff alleges in his petition that there is no such township in. Kossuth County as “Algona City Township.” But it is not denied that the justice named was a justice of the peace in and. for Kossuth County, and the recital of the name of the township is immaterial. Johnson v. Dodge, 19 Iowa, 106. The justice appears to have been in fact a justice of the peace in and for Algona township, and the misdescription of the township could not have misled the plaintiff as to the place where he was required to appear and defend. At any rate, he alleges no attempt to appear or make defense; and, as the justice of the peace in the township may entertain jurisdiction of a [264] suit on a written contract stipulating for payment at a place within such township, although the defendant is a nonresident of the county (Code, section 4481), the justice of the peace rendering this judgment was not without jurisdiction. 3 judgment equitable relief jurisdiction. When a transcript of the judgment rendered by the justice of the peace in Kossuth County was filed with the clerk of the district court for that county, such judgment became a judgment of the district court of that county (Code, section 4538), and it is provided by Code, section 4364, that proceedings to enjoin enforcement of a judgment must be brought in the county and court in which the judgment was obtained. The district court of Dubuque County was therefore without jurisdiction to entertain plaintiff’s action to enjoin the enforcement in that county of a judgment apparently valid and regular in Kossuth County, where it was rendered; no ground for attacking the judgment other than that which might have been interposed as a defense to the cause of action on which the judgment was rendered being alleged. Hawkeye Ins. Co. v. Huston, 115 Iowa, 621; Brunk v. Moulton Bank, 121 Iowa, 14. The case last cited is directly in point, for it involved a proceeding in another county to enjoin the levy of an execution issued from the district court on a transcript of a judgment of a justice of the peace. It appears, therefore, not only that the fraud of which plaintiff complains might have been made a ground of defense before the justice of the peace rendering the judgment now sought to be enjoined, but also that- the court in which this action was brought was without jurisdiction to determine the validity of such judgment in Kossuth County. The cases relied upon for appellant in support of the general proposition that fraud in procuring a judgment will render it void and subject to attack have no application here. The fraud alleged does not go to the jurisdiction of the [265] justice of the peace' rendering the judgment, but to the cause of action on which the judgment was rendered, and should have been interposed as a defense to the action. And even if there was su.ch fraud as might have been a ground for attacking the judgment after it was rendered, it was available to the plaintiff .in an action brought in the county where the judgment was rendered, and is not available to him elsewhere. However potent may be the fraud complained of, it must be interposed at the proper time and in the proper court. The demurrer to plaintiff’s petition was properly sustained and the judgment against plaintiff is affirmed.