Baker v. Kerr

13 Iowa 384 | Iowa | 1862

Wright, J.

This cause was affirmed at tbe December Term, 1861. Since then a petition.for re-bearing has been filed, which we proceed to examine.

Defendant prosecuted bis writ of error to reverse a judgment against him, rendered by a justice of tbe peace. Tbe service of tbe original notice was upon a person styled “ the agent” of tbe defendant. One Iliff, “as an agent and attorney,” appeared before the justice and made a showing that he had been employed by this “ agent,” thus served, to defend the action, and asked to be allowed to do so. Plaintiff objected, was sustained, and thereupon there was a judgment by default. In the District Court, on hearing the writ of error, the cause was reversed, and an order made remanding the cause for trial, after giving five days’ notice to the defendant’s attorney.

. It is now objected that the justice had no jurisdiction; that the court erred therefore in remanding the case; that, it.should have been dismissed. We are very clear that this position is untenable. Defendant had, by his own act, or-by the act of one whom he admits was his attorney, recognized the validity of the service upon him through his agent. 'And such service is good, under some circum-. stances. (§§ 2827, 8864.) There is no question but that the justice had jurisdiction over the subject-matter. And it was therefore perfectly competent, under § 2855, to remand, the case for new trial, prescribing the notice to bring the parties again before the justice.

As to the objection that a notice to the attorney would not be sufficient, we say that it will be time enough to determine that when the question legitimately arises. The: plaintiff may serve the defendant himself with notice, notwithstanding this direction of the court. Or it may be that no question as to the sufficiency of the service will be1 raised. This order is merely directory, and until the party has sustained some injury from it, we are not disposed to pass upon it as an abstract proposition.

Appellant’s counsel in his petition, suggests that no; written opinion was filed when the case was formerly de-: cided, that such opinion was necessary before the case could, be determined, and that the statutory requirements upon-, this subject should be complied with. And these sugges-i tions demand, perhaps, at our hands a passing notice. .>.

We are fully aware of the demands of the statute. These are, that the opinions of the court on all questions reviewed on appeal, shall be reduced to writing, and filed with the clerk (§ 2636), that the court must decide on each error assigned (§ 3546), and that no case is decided until the opinion in writing is filed with the clerk (§3550). And we are fully as conscious of the difficulty, if not impossibility, of literally complying with all these requirements, consistently with the due and speedy administration of justice, the proper and careful determination of all the causes submitted in this court. And, therefore, in view of the great press of business, in our anxiety to pass upon and adjudicate the causes submitted with as little delay as possible, we have felt at liberty, and indeed that it was our duty, to announce that a case was affirmed, without filing a written opinion, when it was unimportant, involved no new question, and when an opinion would be but repetition- and tend to unnecessarily encumber our published reports. And while it is doubtless more satisfactory to counsel, to-know, in each case, the grounds upon which a decision is. based, it would hardly seem just or reasonable, nor to comport with the theory of our judicial system, that this wish should be gratified, if, as a consequence, we are compelled to hastily consider and determine the heavier and more important questions submitted. Yery many cases are brought before us, involving no semblance of error, where, nevertheless, the errors assigned are numerous and oft-repeated (and as often decided previously), where to undertake to pass upon each in a written opinion would require as much time as. to determine questions before undecided, of the greatest magnitude. And yet, by the literal reading of the law, this is our duty — a duty, however, which we have never supposed was demanded of us.by the policy of the state, by the interests of parties litigant, or the candid and enlightened judgment of the bar.

And the correctness of this view, and of this professional judgment, finds full support when we remember that we are asked to examine and determine about five hundred cases annually, that, under our new system of practice, questions are constantly arising, requiring early settlement, in which written opinions are absolutely necessary, and that our published reports are accumulating, as in other states, almost, if not quite,. beyond the public and professional demand.

The Constitution of Indiana requires that the supreme court shall give a written opinion upon every point arising in the record of every case. Perkins, J., in Willets v. Ridgway, 9 Ind., 367, in commenting upon this provision, uses language, the substance of which we feel free to adopt in this instance. “ If literally followed,” says the judge, “ it tends to fill our reports with repetitions of decisions upon settled as well as frivolous points, and often to introduce into them, in the great press of business, premature and not well considered opinions, upon points only slightly argued; yet it is a provision not to be disregarded, though merely directory, like that requiring the legislature to use good English. But though this provision is not to be disregarded, it is to be observed according to some construction, and should receive such a one as to obviate its inconvenience and objectionable character, as far as consistently can be done.

“ It often happens that a point is raised, involving an important principle, but of minor consequence in its bearing upon the particular case, while it presents the material question in some other pending cause. Now, to decide it in the case where, from its subordinate position, it-is but carelessly argued, by one side or the other, if at all, and hence, perhaps, but hastily considered by the court, is unjust to counsel whose subsequently pending cause is thus prejudged, without their being heard, and upon an argumeut on which they would, be unwilling to rest it. It is this class of decisions which fonn the bane of judicial reports.

“ These and other considerations bave led tbé court to inquire, wben does a question, in tbe sense of tbe Constitution, arise in the record?

“ We do not think it does so merely because it is raised by counsel, nor because it is presented by tbe assignment of errors. Nor, necessarily, because it is raised by a bill of exceptions. It must be a question tbe decision of which is necessary to the final determination of the cause, and which the record presents with a fullness and distinctness rendering it possible for the court to comprehend it in all its bearings.”

With tbe spirit of these views, as well as the provisions of our statute, we shall, as heretofore, endeavor to comply. If, at any time, there is a seeming departure, it will be with a consciousness on our part that the particular case has received none the less of our care and attention, and that neither parties litigant, counsel, or tbe public, can bave just cause of complaint.

The re-beaxing is refused.