District Township of Lodomillo v. District Township of Cass, 54 Iowa 115

District Township of Lodomillo v. District Township of Cass

54 Iowa 115 | Iowa | 1880

Adams, Ch. J.

i. nwiraredistrict: acieremedy. I. The petition avers, in substance, that the plaintiff is the owner of the two school-houses: that they stand upon its territory: that the defendant has taken action, and threatens and intends to remove them without the plaintiff’s consent, and illegaily, and has taken action, and threatens and intends to as*117sume the territory without the plaintiff’s consent, and illegally. This, in our opinion, is an explicit averment of the plaintiff’s rights, and a threatened and intended invasion of them by the defendant. It cannot be necessary to aver the facts by reason of which the plaintiff acquired the schoolhouses and the territory, nor is it necessary to aver the pretenses of the defendant, and set up wherein the pretenses are groundless.

The appellee insists that we cannot consider the averments of the plaintiff’s amendment to its petition: first, because it was made after motion filed to dissolve; and, secoud, because it avers only a conclusion of law..

Whether it was allowable or not, it appears to have been made by leave of court, and without objection by defendant interposed at the time, or by motion afterwards to strike out. We cannot refuse to consider it now.

In one sense, it is true, it avers a legal conclusion, but it is sufficient to meet the second ground of the defendant’s motion.

As to whether, if the threatened acts were consummated, the plaintiff would have an adequate remedy at law, we have to say that we think it would not. The plaintiff is chargéd with the duty of maintaining schools. For that purpose it is its duty tq maintain the rightful possession of its schoolhouses, and not suffer them to be removed from the district and seek its remedy afterward by an action in trespass.

II. The objection by appellee that the injunction stops 'the business of a municipal corporation, and was granted without notice of the application, is based, we doubt not, upon section 3391 of the Code. That section provides that an injunction to stop the general and ordinary business of a municipal corporation can be granted only upon reasonable notice. But the removal of school-houses taken from the possession of another, and the assumption of territory, are not the general and ordinary business of a district township.

*1182.- — ; jurisvice oí ¿oto. *117III. The service of the writ did not, we think, have the *118effect to bring the defendant into court. Without jurisdiction of the pereon of the defendant the court could not have proceeded to make any adjudication in the action. But the defendant appeared, and from that time, certainly, the court had jurisdiction of the person. Code, § 2626, subdivision 3. We have, however, the question whether, where a writ of injunction is served before the court» has obtained jurisdiction of the person, such service can be deemed to have any validity at the time when made or afterward. Counsel for the appellee insist (if we understand their position) that there can be no injunction without an action, and that no action is commenced until jurisdiction of the person is obtained. But this reasoning we think would carry us too far. No lien by attachment can be obtained except by action, yet, evidently, a valid levy may be made before jurisdiction of the person is obtained. If it is never obtained the levy, of course, has no validity, but when obtained, the levy becomes valid from the time when made. If the plaintiff delays to serve the original notice, and in the meantime the defendant feels aggrieved by the attachment, he may, if he so elects, enter an appearance and proceed to obtain a determination of his rights. But such entry of appearance would give the court jurisdiction of the person, especially if he attacked the attachment upon grounds other than the want of jurisdiction. Chittenden & Co. v. Hobbs, 9 Iowa, 418.

In our opinion an injunction cannot be dissolved uj>on the ground that the service of the writ preceded the service of the original notice, and if not, it cannot be dissolved upon the ground that the service of the writ preceded the acquisition of jurisdiction of the jjerson by appearance.

The appellee relies upon Parker v. Williams, 4 Paige Ch., 439. In that case it was held to be an irregularity to serve an injunction before the defendant was notified to appear and answer, and it was said that if the- defendant had not answered, but had appeared promptly and moved to dissolve for *119want of service of notice, it would have been proper to sustain tbe motion. But under our statute appearance for any purpose obviates the necessity of a notice, and gives the court jurisdiction of the person just as essentially as the filing of an answer.

Ve see, then, no technical grounds upon which tbe motion to dissolve could properly bave been sustained, and taking tbe allegations of tbe petition to be true, we think tbe injunction could not properly bave been dissolved upon tbe merits of tbe case.

Beversed.