Preston v. Wright , 60 Iowa 351 ( 1882 )

Day, J.

i. judgment noíner :'regusumad?16 -I. The plaintiff’ insists that the judgment in the attachment proceeding was rendered against E. A. Swift, and not against A. E. Swift. The record does not support the plaintiff upon this question of fact. The record of the judgment itself is not made a part of the abstract, and it is insisted by the appellee that it shows.a judgment regularly entered against A. E. Swift. The entry upon the judgment docket, it is true, shows a judgment against E. A. Swift. But this would not invalidate the whole proceeding, if the judgment upon the court’s record was duly entered against A. E. Swift; and, in the absence of any showing to the contrary, we must presume that it was so duly entered.

2, jury : party entitled.to. II. The plaintiff complains because the damages were assessed without a jury, and insists that the defendant in the attachment proceeding had a constitutional right to a jury, of which he could not lawfully be deprived. It is true that, if the defendant had answered, and appeared at the trial and demanded a jury, he would have been entitled to one. But the defendant was in default for want of an answer, and thereby he in effect waived his right to demand a jury. Where either party is in default, the court is empowered to assess the damages, unless a jury be demanded by the party not in default. Code, §2872. A party who is in default is not entitled to a jury to assess damages. Wilkins v. Treynor, 14 Iowa, 391; Carleton v. Byington, 17 Id., 579; Armstrong v. Catlin, Id., 581.

3.nxEcuTToir: namürégulaiitypresumed. III. The name of the execution defendant appears in the execution in the following form: A. E. Swift. It would seem that the name was originally written E. A. Swift, and that it was afterward changed by crossing out ... ° J ° the E, and writing it after the A. The appellant insists that the change was made after the sale, by George P. Wright, and that he admits in his testimony that he made it. The claim that Wright admits he made the change arises clearly from a misapprehension of the testimony. What Wright admits to be in his handwriting is a portion of the officer’s return to the execution. Respecting the change of the name in the execution, he says he does not know who made it, but thinks it is in the handwriting of Warren, the clerk of the court. There is no proof whatever as to the time when this change was made, and it cannot be presumed that it was fraudulently made by one not authorized to do so, and after the sale. The appellant being mistaken as to the facts, the authorities cited and relied' upon do not apply.

i. execution mento^ap1-4* siierirn regusumod?re IY. It appears that the plaintiff appointed one appraiser of the property and the sheriff appointed one. The return does not show that the defendant was absent, nor that he refused to appoint an appraiser. It is claimed that this vitiates the sale. The appellant relies, for the most part, upon authorities reviewed in Cavender v. The Heirs of Smith, 1 Iowa, 306, and held not applicable to our statute, and in Hill v. Baker, 32 Id., 302, declared to “recognize a strictness of construction against the title acquired at an execution sale, which is in conflict with the law as declared in most of the states, and not in harmony with the genius of our own decisions, the policy of which is to uphold judicial sales.” Although this exact question was not involved in Cavender v. The Heirs of Smith, nor in Hill v. Baker, supra, yet it results from the principles approved in those cases, that a failure of the sheriff to return that the execution defendant was absent or refused to appoint an appraiser, will not render the sale void.

Y. Notice of the levy of the attachment was served on Joel Eaton, jr., the secretary of the Council Bluffs Gas Light Company. The petition alleges that “he is the holder of seven hundred and fifty shares of the capital stock, and that they were transferred to him by Amasa E. Swift without consideration, for the. purpose of placing them beyond the reach of creditors. Testimony was offered for the purpose of showing the manner and circumstances of the transfer of this stock to Eaton. Upon objection of .defendant the testimony was rejected. The offered evidence was altogether foreign to any issue properly involved in this case. The plaintiff is endeavoring to obtain four hundred and forty-nine of the shares held by Wright. It is altogether immaterial in what manner Eaton acquired the shares claimed by him.

The record discloses no error. Aeeikmed.