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Hawkeye Insurance Co. v. Huston

Hawkeye Insurance Company v. D. P. Huston, Robert Johnson

Hawkeye Ins. Co. v. Huston, 96 N.W. 895 (Iowa 1903)
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Court
Supreme Court of Iowa · State Highest Courts
Decided
October 19, 1903
Judges
Sheewin
Citations
96 N.W. 895121 Iowa 393
Disposition
—Affirmed.
Cited by 2
Headnotes
Injunction: motion to dissolve: assignment op error. A ruling 1 on a motion to disssolve a temporary injunction is not an adjudication on the merits and can only he reviewed on appeal when error is properly assigned. Injunction: JUDGMENT on the pleadings: presumption. Where 2 an injunction is isued to restrain the collection of an alleged invalid default and judgment and the invalidity of the judgment is denied in the answer, it will he presumed on appeal that the judgment on the pleadings dissolving the injunction was properly entered.
Summary
Appeal from, Jones District Court. — -HoN. W. G. Thompson, Judge. IN September, 1894, the defendant D. P. Huston recovered a judgment by default against the plaintiff on a policy of fire insurance issued to him. The application for such policy was taken by one W. H. Gordon, whose office-was in Olin, in Jones county. Before suit was brought on the policy, Gordon died, and notice of suit was served on one-F. M. Khodes, whom the plaintiff alleges was its soliciting agent residing at Auamosa, Iowa, but whom the defendants in their answer allege conducted the business pertaining to the agency of Gordon after his death. This action was brought-in equity in April, 1902, asking a temporary writ of injunction restraining the collection of the-judgment rendered against the plaintiff in 1894, on the ground that the court had no jurisdiction to render the same. The petition was presented to Judge Thompson and an ex parle writ issued. Following the issue -of this writ the defendants answered denying the want of service and the consequent want of jurisdiction to render the judgment sought to be enforced. Still later the defendants moved a dissolution of the temporary writ, which motion was heard and sustained, and the plaintiff appeals.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Sheewin

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Sheewin, J.

This is an equity case, and the record has not been preserved and certified so that it is triable de novo in this court, and we have no evidence before us. The order on motion dissolving the temporary writ of injunction wasmot a final adjudication of the merits of the controversy, and can only be considered by us, if at all, on proper assignment of errors. It is doubtful whether .there is an assignment of errors in this case which gives us power to review the action of the trial court and we are inclined to the view that the motion to affirm for want *395 thereof, submitted with the case, should be sustained. We do not pass upon the motion, however, for the reason that we are of the opinion that the record presented to us fully justified the dissolution of the temporary writ. Every presumption must be indulged in favor of the validity of the judgment and of the jurisdiction of the court entering the judgment. To entitle the plaintiff to an order restraining the collection thereof, it was necessary for it to show affirmatively that it was invalid. This it alleged, but the allegation, was squarely met in the answer, and upon the pleadings alone, after answer, the writ should have.been dissolved.

As we have nothing but the pleadings before us, it' is evident therefrom that the order appealed from is right, and it is affirmed.

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Cited by 2 cases

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1918: 11955: 119182026peak 1918 · 1

Relies on it most ⓘ

  1. Martin v. Stewart Motor Sales73 N.W.2d 1 (Iowa 1955)
  2. McCarthy v. Bowling Green Storage & Van Co.182 A.D. 18 (1918)

Most recent

  1. Martin v. Stewart Motor Sales73 N.W.2d 1 (Iowa 1955)
  2. McCarthy v. Bowling Green Storage & Van Co.182 A.D. 18 (1918)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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