Graham Paper Co. v. Wohlwend , 116 Iowa 358 ( 1902 )

McClain, J. —

1 There are two difficulties in the way of granting the relief asked in the lower court. In the first place, it does not appear in any way that the circuit court rendering the judgment referred to ever intended to enter a judgment against this defendant individually, and a proceeding for entry of judgment wane pro tunc can only be sustained where there was in fact a judgment. Such a proceeding is not a proper one for reviewing and correcting errors in the action of the court in failing to render a judgment which should have been rendered.

2 In the second place, it does not appear that any judgment could properly have been rendered by the circuit court against this defendant. The service on defendant, as appears by the record of the case in the circuit court, was at least defective, in that the return does not show a reading of the notice to this defendant, and the judgment of the circuit court was entered .on default. It may be that if the circuit court had rendered such a judgment as is now asked, the return of service would have been sufficient to sustain it against a collateral attack, but that is not this case. No judgment against this defendant appearing to have been rendered in that case, it may well be presumed that the court failed to enter such judgment because of the insufficiency of the service, and its failure to do so cannot be called in question in this way. — Affirmed.