Parsons v. Nutting , 45 Iowa 404 ( 1877 )

Seevers, J.

x. judgment: risdietion.""1 As the indebtedness upon which the judgment was rendered is admitted and no tender or offer to pay such amount is averred, the question is presented whether the relief asked should, in a court of equity, be granted. It is claimed the judgment is oppressive in so far as the unnecessary costs are concerned. The petition, however, seeks to enjoin the collection of the whole judgment, 'and counsel for the plaintiff, in his argument, insists that he is entitled to such relief, aud does not, even by the way of suggestion, concede that he is entitled to or will accept less.

It would seem that the rule that he who asks equity must do equity applies fully here. The judgment, it may be conceded, was improperly entered, and that plaintiff was not bound thereby; but, inasmuch as-he concedes that he is indebted to the defendant and asks a court of equity to enjoin the collection of the judgment, we" think he should at least tender or offer, to pay what he thus admits is justly due before he can obtain tbe aid of a court of equity. Piggott v. Addicks, 3 G. Greene, 427; Crawford & Kimball v. White, 17 Iowa, 560; Taggart & Taggart v. Wood, 20 Iowa, 236.

According to tbe plaintiff’s own showing, that portion of the judgment which he claims to be oppressive could have been readily separated and distinguished from that portion which is admitted, and why the plaintiff did not content himself with seeking .to enjoin such oppressive part we are at a loss to conceive. Had he so .done, or expressed a willingness to be Content with that measure of relief, we are not prepared to say that a tender or offer to pay would have been necessary before such relief could have been granted. In this respect this case is distinguishable from Bryant v. Williams, 21 Iowa, 329.

Affirmed.