132 Iowa 22 | Iowa | 1906
Lead Opinion
This suit was originally brought in the justice court' of D. S. Barber of Johnson county, who had jurisdiction of the subject-matter and of the defendant. Two changes of venue were regularly taken, and the case
The jurisdiction of our courts is prescribed by statute, and there is no provision made for the transfer of actions of this kind from a justice of the peace to the district court. On the contrary, the statute contemplates that a cause of this character once commenced before a justice of the peace shall proceed to a final determination, and the only provision made for transferring it to the district court is by appeal. As applied to the facts there presented for determination, it may be conceded that the decision is sound, for the only appearance there made by the defendant was for the express purpose of challenging the jurisdiction, of the district court, and, of course, no waiver of irregularity in or manner of acquiring jurisdiction could be predicted on such special appearance. In the early case of Kimble v. Riggin, 2 G. Greene, 245, an appeal was taken from a verdict rendered in a justice court. There being no judgment, we held that the district court had no jurisdiction, and said further, in such case, even the appearance of the parties in the supposed appeal could not confer jurisdiction over the invalid proceedings of the justice. The case would have been different had the parties appeared originally in the district court, and by consent proceeded to trial, but, as the appearance, trial, and judgment were predicated upon an appeal unauthorized by law, we can but' regard the proceedings as a nullity.
The gist of the holding in the Kimble case is that there could be no waiver of irregularity unless it clearly appeared to be the intent of the defendant; for, if the parties could
In Baily v. Birkhofer, 123 Iowa, 59, an action was commenced before a justice of the peace who had no jurisdiction of the subject-matter, and we held, following Porter v. Welsh, 117 Iowa, 144, and other like cases, that the district court could acquire no jurisdiction by an appeal from a judgment void for want of jurisdiction in the justice. The last two cases cited are in line with McMeans v. Cameron, 51 Iowa, 691; Gates v. Wagner, 46 Iowa, 355; Hamilton v. Millhouse, 46 Iowa, 74; Boyer v. Moore, 42 Iowa, 544; Ebersole & Son v. Ware, 59 Iowa, 663.
In our opinion, the instant case is clearly distinguishable from the above cases. Here, the justice of the peace and the district court had jurisdiction of the subject-matter; the ease was docketed in the district court by consent; the plaintiff filed his original petition therein in pursuance of the agreement and the defendant appeared in said court, and submitted his person to the jurisdiction of the court by answer and other pleadings, which was not done in any of the cases cited and relied on by the appellant. If the plaintiff had filed its petition in the district court in the first instance, and the defendant had appeared thereto by answer on the merits, there can be no question as to the court’s jurisdiction of his person; it having jurisdiction of both the subject-matter and of the person. In Wilgus v. Gettings, 19 Iowa, 82, the suit was commenced before a justice, and proceeded to trial and judgment. An appeal was taken to the district court, where the plaintiff moved for a continuance, which was granted. Later, he moved, to dismiss,
In Davidson v. Wheeler, Morris, 238, this court held that, where a court has jurisdiction of the subject-matter, it may acquire jurisdiction of the parties by consent, and that a change of venue taken by consent of both parties conferred jurisdiction upon the court to which the change was taken, although such change was not authorized by law; the court being one having jurisdiction of the subject-matter. We reach the conclusion that the district court had jurisdiction, and that the motion to dismiss was rightly overruled.
The plaintiff sued on the following written agreement: “ To the Sharon Farmers Mutual Telephone Company. We,
We think the judgment fully sustained by the evidence, and find no cause for a reversal of the case. Affirmed.
Dissenting Opinion
(dissenting).— I am not fully satisfied with the majority opinion in any of its branches. Upon two propositions therein announced, I feel sure the majority is wrong; and, upon the other two, I have not fully satisfied myself, and do not care to make a definite pronouncement thereon without further argument and time for reflection.
The first division, I think, overrules many of our cases, and is founded upon a distinction which does not in fact exist. The case came into the district court by transfer from a justice’s court upon a stipulation by the parties. It was not submitted nor brought into court under either chapter 13 or 14 of title 21 of the Code providing for arbitration, or for the submission of controversies without action or in action. A court’s jurisdiction is primarily given by law, and cannot be conferred by consent or stipulation of parties. Now, we have expressly held that parties to an action pend
II. Appellant’s contract was with “the Sharon Earmers’ Mutual Telephone Company.” The action is brought by “the Farmers Mutual Telephone Company,” and without showing of assignment to that company of the contract, or of the right of action, it is allowed to recover upon the contract. To my mind this is impossible under the pleadings. If defendant is estopped, as the majority say, from denying his contract with “the Sharon Farmers’ Mutual Telephone Company,” plaintiff should also be held strictly to the terms of the contract, and to strict proof of its right to recover. The name is important here, for a corporation must contract and sue in its proper name; and without pleading and proof that the contract, although in the name of another was made for its benefit, or that it holds an assignment of the contract, it cannot recover. See Bower v. State Bank, 5 Ark. 234.
III. I do not like the rule estopping a subscriber from pleading, in an action brought by the corporation in its own behalf, and not for creditors, that the corporation is not legally organized; and that if defendant is held liable, he
IV. Upon the question of the tender of stock, I agree that the weight of authority seems to be with the majority opinion; but I am not able to fully harmonize our cases with that rule. See Cooper v. McKee, 49 Iowa, 288; Hedge v. Gibson, 58 Iowa, 658; Nelson v. Wilson, 75 Iowa, 713; Courtright v. Deeds, 37 Iowa, 503, and other like cases. This is not an action for a call, but for the entire purchase price of the stock; and it is held in many cases that delivery of the stock, and payment of the price therefor, are dependent conditions. James v. Cincinnati R. R. Co., 2 Disn. (Ohio) 261; Clark v. Continental Co., 57 Ind. 135.
Concurrence Opinion
I concur in the dissent of Deemer, J., upon the question of jurisdiction. Otherwise, I concur in the majority opinion.
Dissenting Opinion
(dissenting).— I fully agree in the conclusion reached in the first division of the majority opinion. Beyond that I share in the doubts expressed by Deemer, J