Opinion
No. 42664.
December 11, 1934. Rehearing Denied April 5, 1935.
JUDGMENT: Conclusiveness — Attachment Proceedings. An unappealed holding in attachment proceedings that plaintiff, tho entitled to judgment against defendant, had acquired no lien on certain real estate is a finality. In other words, plaintiff may not, years afterwards, between other parties dispute said adjudication.
Appeal from Carroll District Court. — M.E. HUTCHISON, Judge.
In the first instance this was a mere action at law upon a promissory note signed by the first named three defendants, F.A. Hermsen, J.B. Hermsen, and Chas. Irlbeck. By procedure, mutually acquiesced in, though not provided for by any statute, the case was converted substantially into a quieting title suit. New parties were impleaded by the original defendants. These new parties are denominated in the title page as "Cross-defendants" and "Cross-appellants" here. The so-called cross-defendants were holders of judgments in severalty. The original defendant, F.A. Hermsen, was the principal maker of the note. The other two defendants were sureties, and cut no figure in the litigation. The principal defendant, Hermsen, pleaded that the principal note had been given as a part of the purchase price of certain real estate, the title to which was then beclouded; that the note and the deed for the real estate were each executed on September 27, 1921, and were placed in escrow to be delivered whenever the seller of the real estate should present a good title thereto. The payee of the note was Howard National Bank, and the plaintiff acquired the note from such payee. It was averred by the principal defendant, Hermsen, that the cloud upon the title had never been removed. The principal defendant thereupon impleaded the cross-defendants, and asked that their claims of lien upon the real property be adjudicated. Each of the cross-defendants thereupon set up an alleged judgment held by him against one Kavaney. He also pleaded certain attachment and garnishment proceedings had in May, 1921, against said Kavaney. Each of them pleaded that by reason of such attachment and garnishment he had obtained a lien upon such real estate and upon the purchase price thereof. The suit under which each cross-defendant prosecuted his claim went to judgment in August, 1923. The alternative claim of each cross-defendant is that his judgment entered in August, 1923, became a lien on said property, even though he had failed to acquire a lien under his original attachment. Such is the general nature of the controversy presented. The trial court denied each claim in toto, and held that the real estate was free from any cloud, and that the deed tendered to the principal defendant, Hermsen, presented a good title to the real estate. Judgment was entered upon the note accordingly. The defendants have not appealed. Only the cross-defendants appeal. — Affirmed.
Helmer Minnich, for cross-defendant-appellants.
E.A. Wissler, for appellee.
E.A. Robb, for defendants.
I. Did any cross-defendant obtain a lien under his attachment and garnishment? Each of them began his action in May, 1921, and each followed the same procedure. The question whether he obtained any lien by his attachment proceedings was litigated in that suit. That suit went to decree in August, 1923. The decree entered therein expressly found that no lien was acquired by the attachment proceeding. That was a complete adjudication of the issue that is now presented to us. The appellants are in the position of appealing now from an adjudication made eleven years ago. Needless to say that no such right of appeal is available to them.
II. The alternative ground taken by the appellants is that their judgments entered in August, 1923, became a lien as of that date. The holder of the title on that date was the Howard National Bank, who was the grantor of this defendant. The judgments obtained by each cross-defendant were against Kavaney and against him alone. Kavaney had held the title to this real estate for a brief time up to May, 1921. He had not held the title since that date, nor had any interest therein so far as disclosed by the record. The judgments of the cross-defendants, therefore, did not attach as a lien upon the property. The cross-defendants present a theory to the effect that the deposit of note and deed in escrow so suspended the title that it could not pass from grantor to grantee, and that it therefore became subject to liens attaching as a matter of law as against the grantor. But Kavaney, the judgment-defendant, was not the grantor of the defendant Hermsen. His transaction was had with the Howard National Bank. Though the note and the deed were held in escrow for a time, Hermsen went into immediate possession of the real estate, and has occupied it continuously ever since. We see no merit in the theory presented by the appellants.
The decree of the district court is accordingly affirmed.
MITCHELL, C.J., and ALBERT, KINDIG, and DONEGAN, JJ., concur.