47 Iowa 173 | Iowa | 1877
I. No errors are assigned, and the appellees insist, as there was no trial on the facts, that although this is i. practice : an equity action there is no question this court tnai. method can try ailq determine. Under the Revision, this action was triable in the court below by the first method, and in this court ele novo. Hackworth v. Zollars, 30 Iowa, 433. Such was the general rule. Rev., §2999. Now, under the Code, all actions are triable in the District or Circuit court on oral evidence, and in this court on exceptions and errors duly assigned. Code, § 2741: Richards v. Hintrager, 45 Iowa, 253, and numerous other cases. This under the Code is the general rule, and it devolves on either or both parties, by motion in the court below, and the order of such court, to obtain a trial de novo in this court in an equity action. No such motion or order was made below. "Whether errors should bo assigned in an equity action where the appeal is from the decision sustaining a demurrer or motion which has the effect of dismissing the action, and a judgment for costs is rendered against the plaintiff, is an important question of practice which we do not feel called on to determine.
Undoubtedly it was illegal for the justice to render judgment in a cause in which he had no jurisdiction of the subject-matter. The case was therefore propei’ly removed on error to the Circuit Court, and when so removed such court obtained jurisdiction, and without doubt could have reversed the judgment of the justice, and directed him to dismiss the action. Having jurisdiction of the parties and subject-matter, the order or judgment rendered by the Circuit Court might be erroneous, but not void for want of jurisdiction. Freeman on Judgments, See. 135; Craine v. Fulton, 10 Iowa, 457; Mason v. Richards, 12 Iowa, 73; Davis v. Keith, 23 Iowa, 419; Belding v. Torrence, 39 Iowa, 516; Granger v. Clark, 21 Maine, 128; Cook v. Darling, 18 Pick., 393. This rule is fundamental, well understood and universally recognized. The judgment rendered by the Circuit Court against plaintiff for $90 being erroneous, at most, it should have been corrected on appeal, and cannot be attacked collaterally or in the present proceedings. That- we are not mistaken in holding the judgment to be erroneous, only, receives strong support from the amendment to the petition, if it is not conclusively sustained by the statements therein: When referring to such judgment,
III. There is no averment tending to show fraud, except that it is stated the execution was issued through fraud and collusion. If it be admitted this general allegation of fraud is sufficient, it will not entitle plaintiff to have the enforcement of the judgment enjoined, which is asked in the petition. The most he could be entitled to under such allegation would be to enjoin the execution, but this would be of no practical benefit.
The judgment, as entered of record, is made a part of the petition, and, whatever ambiguity there may be in the judge’s entry, there is none in the record. The practice is for judges to make short and brief entries in their dockets, from which the clerk, under the eye of counsel, makes up the record. But the judge’s entry fully warrants the judgment. That he inT tended to render judgment against the plaintiff and his bondsman seems to us to be clear. Nor can it be said the plaintiff was surprised by the judgment-entered of record; for it is recited therein that the parties appeared by their attorneys, and it is stated in the amendment to the petition that plaintiff’s attorney was present during the entire term. It is also stated that plaintiff did not know of the character of said order
Whether the records were read and approved or not, during the term, is entirely immaterial. The statute on this subject is merely directory. Besides this, it is expressly provided if not practicable to have the records read during the term they may be read and approved at the succeeding term. Code, § 177. In the absence of any showing to the contrary, the strong presumption is that this was done..
The judgment, it is said, is wrong, unjust and inequitable, and there was no trial as to the ownership of the property. This may be admitted,’and yet, in the absence of accident, fraud, or mistake, equity cannot interfere. This rule is believed to be the accepted doctrine in all courts. Counsel have cited many authorities showing that the courts of equity have enjoined judgments at law. It is unnecessary to refer to them further than to say that an examination of them will make it clear the equitable interference is based in a greater or less degree on either accident, fraud or mistake, and to which we have added surprise.
Y. The judgment rendered by the Circuit Court is as follows: “And now * * the court, * * being advised in the premises, reverses, the judgment of the justice’s court, and finds for the defendant against the plaintiff for the value of the property, to-wit: the sum of ninety dollars. It is, therefore, ordered and adjudged by the court, and judgment is hereby rendered against the plaintiff’, for the said sum of ninety dollars and costs, taxed at $12.60, and execution is awarded therefor, and also against G. Dennis, a surety on the replevin bond.’’
It is a mistake to say this is an alternatiye judgment. Nor was the defendant, Hollinger, bound to take the cattle. The tender made, therefore, was immaterial.
YI. The second count in the answer was struck out on
We are strongly impressed that a wrong has been done plaintiff, and if there was any way we could grant him relief in this action, without ignoring and trampling under foot well known and acknowledged legal principles, we should unhesitatingly do so, and much regret we are compelled to refuse it.
Affirmed.