Buckham v. Grape , 65 Iowa 535 ( 1885 )

Seevers, J.

The petition states that the plaintiff recovered a judgment in the circuit court of Shelby county against one Wolf, on the ground that he had sold her husband intoxicating liquors whereby he became intoxicated; that at the time said liquors were so sold, Wolf occupied certain premises belonging to the defendant Grape, who had knowledge of and consented to said sales; that Grape caused the real estate described in the petition to be conveyed to Elizabeth White, who conveyed the same to Ida Grape, wife of the said defendant; that Ida Grape died, and devised the real estate to her two children, and named her husband, the defendant Grape, as executor, without bond, and gave him power to sell any or all of the property so described as he should deem proj>er.

The will was admitted to probate. Certain claims were filed against the estate of Ida Grape, and the defendant, as executor aforesaid, conveyed said real estate to his nephew, TI. R. White, who conveyed the same to the defendant Grape, who executed a mortgage to the defendant Elizabeth White.

It is alleged in the petition that in truth and in fact the said Grape was at all times the owner of said property, and that said conveyances and mortgages were fraudulent and void, because the same were made to hinder and delay-creditors.

The relief asked is that the said judgment against Wolf be declared a lien on the real estate, and that the mortgage above described be set aside.

The defendants answered the petition, and demanded a trial by jury, which was refused.

I. It is said that this ruling of the court is erroneous, and La France v. Krayer, 42 Iowa, 145, and Loan v. Hiney et al., 53 Id., 89, are cited.

Complete relief could not have been afforded at law. Elizabeth White could not have been made a party in a purely legal proceeding, and the questions as to the validity of the conveyances and mortgages, and the priority of liens thereunder, had to be determined. Therefore, we think, the action was properly brought and tried as an equitable action.

II. The plaintiff, against the defendants’ objection, introduced in evidence a transcript of the judgment against Wolf. It is insisted that the court erred in admitting the evidence. The appellee insists that the introduction of the judgment made a prima facie case, and that, in the absence of any defense, it is conclusive as to the amount for which the plaintiff is entitled to have the lien established. If Grape had been a party to the action, we think the position of appellee would be correct. But, as he was not a party, the question is whether a judgment which he has had no opportunity of contesting constitutes any evidence against him. If the judgment constitutes any evidence against the defendant, we think it is conclusive as to the amount for which plaintiff is entitled to a lien on the defendant’s property, unless, possibly, the judgment has been obtained by fraud. There is no middle ground.

In Loan v. Hiney et al., 53 Iowa, 89, it is said that the property-owner has the right to contest the question as to whether intoxicationg liquors were in fact sold. If this is so, it follows that such person has the right to contest the amount the plaintiff is entitled to recover. It seems to us that on principle this must be so. A party should not be conclusively bound when he has had no opportunity to speak.

But it is said that the statute provides that the lien shall be established, for “ judgments rendered against any person for any violation ” of the statute, on the property in which the liquor was sold with the knowledge and consent of the owner. Code, § 1558. The statute is silent as to whether the property-owner must have notice or knowledge of the judgment or not; and, if construed literally, it would cover a judgment rendered by default, or one of which he did not have the slightest knowledge until the attempt is made to enforce it.

We think the statute should be construed with reference to universally recognized legal principles. It cannot be presumed that the general assembly intended that a person’s property should be taken or appropriated to the payment of a judgment which he had no opportunity of contesting.

'To give such a construction to the statute would, in effect, deprive a party of his property without due process of law. Such a statute would be in conflict with the constitution of the United States and of this state.

It is evident, we think, that it was the intention of the genei’al assembly that, in actions brought by a wife for a sale to her husband of intoxicating liquors, she could, if she saw proper, make the owner of the property a party to the action, and therein try, and have determined, all questions necessary to enable the plaintiff to recover and establish a lien on the property in which the liquor was sold. This court has in effect so held in the cases above cited.

We incline to think that the judgment was properly introduced in evidence for the purpose of showing that the plaintiff had recovered against Wolf, but it was not evidence as to the amount for which the lien should be established, except that in no event could the plaintiff’s lien be for any greater amount; but there is no evidence sufficiently establishing the amount of the plaintiff’s lien. It is true, there is evidence tending to show that Wolf sold the plaintiff’s husband intoxicating liquors, and that he became intoxicated, and also that Grape had knowledge of such facts, but there is no evidence tending to show the plaintiff’s damages, other than the judgment.

Reversed.