118 Iowa 519 | Iowa | 1902
The return shows that plaintiff commenced action against one J. L. Leslie before a justice of the peace, claiming the sum of $25.06. Leslie filed a counterclaim, in which he alleged that plaintiff’s claim was and is collusive and without merit; that it is for services alleged to have been rendered by one Tracy, as an attorney at law, for defendant, but that said services -were without authority from defendant, were negligently performed, and were of no value; that Tracy started suit on the same claim in the district court of Olay county, Iowa, which suit is still pending, and has not been adjudicated; that this action was brought to injure, harrass, and annoy defendant; was brought in the name of plaintiff maliciously, and with intent to injure; that plaintiff has no interest in the claim but is acting without cause and maliciously, to the damage of the defendant in the sum of $90. At the time of trial, and before judgment in justice’s court, plaintiff filed a remittitur of all of his claim in excess of $22.65, and, as a result of the action, he (plaintiff) obtained judgment before the justice in the sum of $22.65 and costs. Defendant appealed to the district court, and, the case coming on for hearing before that court, plaintiff filed a motion to dismiss the appeal because the amount in controversy was less than $25, and hence the district court had no jurisdiction.
As to the counterclaim, which was for more than $25, plaintiff, as a ground of his motion to dismiss, urged that it failed to state a cause of action, in this: that it did not allege that any of defendant’s property had been attached, or that he had been arrested, or in any way specially injured; and for the further reason that it was filed in the very action which it is alleged had been maliciously insti
It is contended that the district court had no jurisdiction to try the case on appeal, and that defendants were without jurisdiction, and ,acted illegally, in overruling plaintiff’s motion to dismiss the appeal. It is fundamental that a writ of certiorari is never used to correct a mere error, but only to test the jurisdiction of the tribunal and the legality of its action. If the mistake complained of was a mere matter of judgment the writ will not ordinarily lie, for the tribunal guilty thereof is not acting illegally. Section 4154 of the Code also provides that the writ should not be granted when there is another plain, speedy, and adequate remedy. Under this section it has frequently been held that the writ should not be granted where the error complained of can be fully and speedily corrected by appeal. State v. Schmidtz, 65 Iowa, 556; Ransom v. Cummins, 66 Iowa, 137; Remey v. Board, 80 Iowa, 470; Oyster v. Bank, 107 Iowa, 39.
It will be noticed that complaint is made of the rulings on the motions to dismiss the appeal. It does not appear that any other judgment or order has been entered
Moreover, plaintiff had another remedy at law. Judge Bailie gave a certificate of appeal, as provided by law, and plaintiff had an adequate and speedy remedy whereby to correct the error. Instead of doing that, he chose to submit the matter to the other judge of the district court in that district, who also overruled his motion. The motion, as presented to Judge Quarton, was based on the identical grounds of the motion presented to Judge Bailie, and perhaps was overruled out of courtesy to Judge Bailie. But, however this may be, it is evident that, instead of
In Sudberg v. District Court, Linn County, 61 Iowa, 597, it is said: “The order in the district court transferring the cause to the United States court was within its jurisdiction. While the order may have been erroneously
' The writ must be dismissed.