Cotter v. O'Connell
Supreme Court of Iowa
Appeal from Clinton Circuit Cowrt. On the 14th day of April, 1874, William O’Connell recovered a judgment by default against Garrett Cotter for one hundred and sixty-one dollars and three cents, aiid twenty-one dollars and ninety-five cents costs, and fifty dollars attorney’s fee, together with a foreclosure of mortgage, and an order for a special execution. The petition upon which this judgment was rendered did not pray a foreclosure of the mortgage.
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Appeal from Clinton Circuit Cowrt. On the 14th day of April, 1874, William O’Connell recovered a judgment by default against Garrett Cotter for one hundred and sixty-one dollars and three cents, aiid twenty-one dollars and ninety-five cents costs, and fifty dollars attorney’s fee, together with a foreclosure of mortgage, and an order for a special execution. The petition upon which this judgment was rendered did not pray a foreclosure of the mortgage. On the 2d day of June, 1874, the mortgaged property was sold to Henry Gerhard, for the sum of one hundred and ninety dollars, and a certificate…
1Opinion of the CourtDay, J.
I. Appellant insists that plaintiff has mistaken bis remedy. It is urged that be should have set up tbe fact of tbe acceptance of tbe tender under tbe provisions of sections 3212, 3213 of tbe Code, and moved thereon for a dismissal of tbe appeal in tbe Supreme Court. We are, however, of tbe opinion that, while tbe plaintiff might have pursued that course, he is not confined to that remedy.
1. tender: judicial sale. II. Appellant mainly relies upon tbe fact that tbe tender was accepted, not in satisfaction of tbe entire demand, but merely in discharge of what remained after creeliting the…
2Cited by4 opinions
- Kennedy v. EderIndiana Court of Appeals · 1923
- Kissner v. BrownCourt of Appeals of Iowa · 1992
- Fields v. JarnaginSupreme Court of Arkansas · 1947
- Martin v. North American Car Corp.Supreme Court of Oklahoma · 1934