122 Iowa 440 | Iowa | 1904
Plaintiff is a resident of Olarke county, Iowa. In tbe year 1898 be gave an order for- lightning rods
Claim is made that the justice who rendered the judgment was without jurisdiction, for the reason that while the contract, as presented to .him, was made payable at Council Bluffs, yet this provision was not in the contract when he signed it, and that it is in fact a forgery. This is denied and this denial raises an issue of fact, which must first be determined, before we roach the legal propositions involved. An examination of the record leads us to the conclusion that plaintiff’s contention as to the facts is true, and that the instrument, -when signed by him, did not contain this provision for payment at Council Bluffs. It was this provision, which, under our statute, gave the justice jurisdiction of the case. Without it, he had no jurisdiction of a resident of another county. Even if the defendant had appeared, this would not, under our decisions, have given the justice jurisdiction. But as he did not appear, but made default, .that question is out of the case. A court which in fact has no jurisdiction cannot, by deciding that it has, confer upon itself the right
Appellees contend. that the justice was required to determine this matter before rendering judgment, and that hi? finding is conclusive. This contention has support in a few jurisdiction, notably in New York, but to our minds is •unsound in theory and vicious in its ajaplication. If the court in fact has no jurisdiction, its judgment is subject to attack whenever and wherever the question arises, and it is permissible in such cases to show by parol evidence that the facts which apparently gave jurisdiction were untrue. If this were not true, one might be concluded by a court having no right to take cognizance of the subject-matter. In Porter v. Welch, 117 Iowa, 144, we held that a justice has no jurisdiction over a resident of another county, even upon appearance by that party, and that the objection of want of power or right in such cases goes to the subject-matter, rather than to the parties. But we need not go that far here. The provision for performance at Council Bluffs was the only thing that gave the justice jurisdiction, and, if there was no such provision when plaintiff herein signed the contract, then the justice had no right to consider the case. Plaintiff, knowing that fact, might very well have given no attention to the notice which was served upon him, for he knew that, whatever the justice might do, the conclusion would not be binding upon him. Hamilton v. Millhouse, 46 Iowa, 74. Of course, if the justice had jurisdiction and the right to decide, and plaintiff herein was relying simply on his defense of alteration of the instrument to defeat recovery, a different question would be presented. In such a case he should have made his defense before the justice, and, in the event of failure to do so, would be concluded by the judgment. This clearly illustrates the distinction between a right decision and the right to decide. In one case the judgment is conclusive, and in
Appellees also contend that plaintiff is not entitled to relief because of laches, and for the further reason that he does not show that he was not in fact indebted to the plaintiff in the judgment. There is no foundation either in fact or law for the first proposition. Plaintiff had no occasion to act until some attempt was made to enforce the void judgment. When that was done, he brought his action. It waq timely, and defendants were in no manner prejudiced by the delay. As to the second point the cases heretofore decided by this court are against appellees’ claim. If the'judgment is.absolutely void, as this one was, the plaintiff was not required to show that he was not indebted on the cause of action which was the basis of the suit. Arnold v. Hawley, 67 Iowa, 313; Henkle v. Holmes, 97 Iowa, 695; Spencer v. Berns, 114 Iowa, 26, and cases cited.
"We do not Set out the evidence on which we rely for our conclusion on the issue of fact. Suffice it to say that it strongly preponderates in favor of the plaintiff’s contention, and is sufficient, we think, to justify the relief asked.
The case will be reversed, and remanded to the lower court for a decree in harmony with this opinion. — Reversed.