Doran v. Davis

43 Iowa 86 | Iowa | 1876

Beck, J.

I. To establish the defalcation of Keefer, as postmaster, and the liability of plaintiff upon his official bond, as well as the compulsory payment of the amount sued for in this action, an authenticated copy of the proceedings and judgment in an action upon the bond prosecuted in the United States District Court, at Council Bluffs, was introduced in evidence. Defendant insists that this record shows that the court had no jurisdiction, and the judgment is, therefore, void.

, Statesmstrict dence oj^iefendant. Suits not of a local nature, brought in the United States District Court of this State, must be prosecuted in the court held in the division wherein the defendant resides. S. Eev. Statutes, § 7M. Counsel now claim that the defendants in the action on the bond, at the ^me su;t was instituted, resided in -Muscatine county, and not in the division of the district over which the court at Council Bluffs has jurisdiction. Without inquiring into the correctness of their view of the law, it is enough to say that the fact upon which they base their position is not established by the abstract before us. It appears that service of process of the U. S. Court was made upon plaintiff in this action in Muscatine county, and the abstract of defendant may probably be understood to state that proof was offered to the effect that he resided there. But plaintiff’ claims that this abstract is imperfect, and submits another abstract, the correctness of which is not denied by defendant. This abstract must be taken by us as correct.

II. But, conceding that plaintiff did reside in Muscatine county, where the action against him upon the bond was commenced, it does not follow that the United States District Court failed to acquire jurisdiction in the case. The United-States statute above cited provides that “if there are two or more defendants, residing in different divisions of the district, the suit may be brought in either division.” Keefer was a party to the suit on the bond in the United States Court. It is not shown that he did not reside in the Council Bluffs division.

2 presumption. In the face of the record of the judgment, upon which we are required to exercise presumptions in favor of the court’s jurisdiction we will not presume that Keefer did n0(. res;qe within the proper division; we must rather presume the other way. There is evidence in the abstract that he had resided there; his residence will be presumed to continue until the contrary be shown.

3 _._. service. III. It is urged, however, that no service was made upon Keefer. But it is not service upon one of the defendants in the proper division that gives the court jurisdiction, residence of such defendant therein. The want of service, or the return of the writ not found, will not establish the non-residence of the defendant when the suit was commenced. It raises no presumption which will defeat the jurisdiction of the court.

We are of the opinion that the evidence fails to support the objection of want of jurisdiction, raised by defendant. •

4. indemnity pearanee:’ negligence. IV. The judgment was by default. Defendant insists that plaintiff ought to have appeared and defended, and having failedto do so> he was negligent and cannot charge defendant with the consequence of his neglect. It jg n0£ shown that a defense would have availed anything; on the contrary, we are required to presume that it would not, for the record shows that the claim upon which the judgment was rendered was established upon proof.

V. It is lastly urged that a large part of the judgment paid was for costs. But the costs are a part of the judgment from payment of which plaintiff „could not escape. There is no principle of law which will relieve defendant from reimbursing plaintiff for his outlay in satisfying the whole judgment.

Aefirmed.