Snyder v. Ives
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Opinion of the Court
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Day, J.
Tire evidence, by a very fair preponderance, establishes the following facts:
The property mortgaged is the east half of the east half pf lots nnmhered four, five, six and seven. This mortgage was foreclosed as to all of the property described therein. A decree of foreclosure was prepared by plaintiff’s attorney, in which lot seven was at first omitted, but the mistake was immediately .discovered, and the lot -was inserted by interlineation. This decree was signed by the judge, and was handed to the clerk to be entered on the records of the court. In recording the decree the clerk by mistake omitted said lot seven. When the execution issued the same mistake occurred. The portion:of the four lots described in the mortgage is twenty-five feet wide and one hundred feet long, the only frontal upon any street .being the portion of lot seven referred to in the mortgage. Upon these lots, and constituting their principal value, is .a two-story frame building intended for a store, one-third of which stands upon the west half of the east half of lot seven. .In .making the levy and sale the sheriff supposed' he was levying upon and selling the Ives property, embracing the whole of the building, and Dyer, who bid the property in at the sheriff’s sale for plaintiff, supposed he'was buying all of said property. The Appraisers supposed they were appraising the whole property, including the entire building.
The rear two-thirds of the house, and the portions described of lots four, five and. six, alone are of little value. The assigriment of the mortgage from Thomas Main to H. Main is without consideration. The liens.of defendants, are junior to that of plaintiff, and none of the defendants, hav.e in any way *162 changed their position because of the mistake, or can be legally prejudiced by its correction.
But two objections interposed by defendants to the granting of the relief asked need be considered.
i equity • decree and sale. 1. It is claimed that plaintiff cannot have relief because of the gross negligence of his attorney. That equity denies relief 011 the ground of mistake to the negligent, we admit. rule applies only when it is the duty of a party to make inquiry, and he chooses to omit the inquiry, which would have enabled him to correct the mistake or obviate its evil consequences. In this case the attorney of plaintiff drew a correct decree, and intrusted it to the proper officer to be recorded. He had a right to suppose that it would be correctly entered, and that the execution would follow the description of the decree.
While a high degree of care would have stimulated to an examination of the execution and of the decree, and whilst an attorney ought not, perhaps, to omit this precaution, in order that the interests of his clients may be fully protected, yet we cannot hold that an omission to do so is such culpable negligence as will deny to the client all relief upon the ground of mistake. If relief from the consequences of a mistake can be granted only when the highest degree of care has been exercised to avoid mistakes, such relief would be of very rare occurrence.
The law requires only reasonable diligence, and requires this to the end that culpable negligence may not be encouraged. See Story’s Equity Jurisprudence, section 146 and cases cited.
2. Appellant further claims that this action is barred by section 3156 of the Code. Without determining that the remedy prescribed by this section is exclusive, we are of opinion that the record does not show that the action is barred, even under this section. The decree of foreclosure was rendered on the 5th day of December, 1872. The petition in this action was filed on the 2d day of December, 1873, two days before the lapse of a year. The answer alleges that the original notice was served on the 3d day of January, 1874 *163 This allegation needs no reply, if the plaintiff relies simply upon the non-existence of the facts, and does not seek to avoid it by the existence of other "facts. Code, section 2665. The abstract contains no proof of this allegation, and without proof we cannot assume the truth of the fact alleged. But, further, the appellant is in error in assuming that the service of the original notice is the commencement of the action. Section 2532 of the Code provides: “The delivery of the original notice to the sheriff of the proper county with intent that it be served immediately, which intent shall be presumed unless the contrary appears, or the actual service of that notice by another person, is a commencement of the action.”
3. statute of oSginaí10notice: action, The answer does not allege when the original notice was delivered to the sheriff, nor that it was served by a person 0^61' ^Ian Bie sheriff, and we cannot presume, if ^ should even be admitted that it was served on jjjg 0f Jan-uaryj 1874, that it was not delivered to the sheriff at the time the petition was filed, with intent that it be immediately served.
The record does^ not show that the action is barred, even if it be governed by the provisions of section 3156.
The court did not err in granting plaintiff relief. In Partridge & Co. v. Harrow, 27 Iowa, 96 , relief was granted from the effects of a like mistake of the clerk, under the general "doctrines of equity, when it was clear that the action was not commenced within one year from the rendition of the judgment, a.nd the cause had been appealed to the Supreme Court and there affirmed. ,
The relief granted by the court below should have gone further, and ordered a correction of the record of judgment, as prayed in the petition. Plaintiff may have a decree granting this additional relief in this court.
Modified and affirmed.
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