
    Givens v. Campbell et al.
    
    1. Equity! relief against judgment and execution at law. A court of equity will enjoin the sale of property to satisfy a judgment rendered without notice to the defendant, and upon a demand against which the defendant has a good and sufficient defense.
    2. Execution! ON justice’s judgment: statute construed. Under section 3911, Bev., 1860, an execution cannot be issued on a judgment of a justice of the peace (not docketed in the office of the District Court) by the justice, after the lapse of five years from the entry of the judgment. This section has not been repealed.
    
      
      Appeal from Decatur District Court.
    
    Tuesday, January 30.
    Petition in equity for relief against a judgment and execution at law. — The petition was filed July 7, 1865, and makes Campbell the constable, Patterson the justice of the peace, and Gardner & Son, the alleged judgment creditors, parties defendants. It alleges, in substance:
    That on the 28th day of January, 1860, a justice of the peace, in Decatur county, rendered a judgment in favor of Gardner & Son, and against John D. Childers'and the plaintiff (Givens), upon which execution issued June 29, 1865, which was placed in the hands of Campbell, as constable, who has levied upon the property of the plaintiff; that the justice who rendered the judgment against the petitioner had no jurisdiction over his person or property, *for the reason that the records of the justice do not show that the petitioner was served with notice, and in fact, the petitioner denies that he was served with notice; that the first positive information he had of the pretended judgment of Gardner & Son, was after the issuing of the execution thereon; that the cause of the pretended claim of Gardner & Son is this: the said John D. Childers executed a note to the petitioner, due September 17, 1858, which note petitioner indorsed or assigned, before maturity, to Gardner & Son: This note was not protested, nor was notice given to petitioner of its dishonor; that Childers was then solvent, but is now insolvent, and petitioner has therefore a good defense to the same, and the same and the alleged judgment are still the property of Gardner & Son. The transcript of the judgment of the justice recites that notice issued, but does not recité that it was served upon the petitioner, stating simply, that said notice “ was returned this 28th day [of January, 1860], and default being made herein by defendant [both Childers & Givans are named as defendants in the caption of the case on the justice’s docket], and said note read in evidence: it is ordered by me that .Gardner & Son have recovered of defendants, Childers & Givans, the sum,” &c.
    It is also alleged, as grounds of relief, that the execution issued after five years from, the date of the judgment, and that the levy by the constable was excessive.
    
    Prayer for an injunction to restrain further proceedings on the execution, and for relief. To this petition the defendants demurred, and the demurrer being overruled, they excepted, and failing to answer further, the injunction was made perpetual.
    Defendants appeal, and claim that the petition on its face shows no ground for relief
    
      Samuel Forey for the appellants.
    
      Warner, Polk and McHenry, for the plaintiff.
   Dillon, J.

I. Upon the averments in the petition, it is to be taken as true, that the petitioner had no notice of the action before the justice. If so, the judg-' ment of the justice was void, not simply voidable, ]sf0t only does the plaintiff allege t&is, but he shows that Gardner & Son have no equity, as he is not legally liable to them upon his indorsement of the note. He has, therefore, upon well established principles of equity, a right to prevent his property from being seized and sold to pay an unfounded demand and a void judgment. Piggot v. Addicks, 3 G. Greene, 427; Kriechbaum v. Bridges, 1 Iowa, 4; Story’s Eq., §§ 895, 887, et seq.; Ballinger v. Tarbell, 16 Iowa, 491, 493 (case of defective service).

II. Upon another ground, the plaintiff was entitled to enjoin the execution. It was issued by tbe justice more than five years after the judgment. This the justice could not do, provided section 8911 of the Revision is unrepealed.

Upon a consideration of all tbe sections cited by tbe appellant, viz.: §§ 8911, 8246, 3859, 3909, 3910, and §§ 1886 and 1887 of the Code of 1851, we are of the opinion, and so hold, that an execution from a justice’s judgment (not docketed in the clerk’s office), cannot be issued by tbe justice after tbe lapse of five years from tbe entry of the judgment. In other words, no part of § 3911 of the Revision is repealed by § 3246, or the other sections above referred to.

' It is not necessary to notice tbe question relating to tbe alleged excessive levy.

Affirmed.  